Opinion
2012-06-13
TOWN OF OYSTER BAY, appellant, v. John C. BAKER, respondent.
Leonard Genova, Town Attorney, Oyster Bay, N.Y. (Matthew M. Rozea of counsel), for appellant. Hutchinson & Hutchinson, P.C., Oyster Bay, N.Y. (Richard L. Hutchinson of counsel), for respondent.
Leonard Genova, Town Attorney, Oyster Bay, N.Y. (Matthew M. Rozea of counsel), for appellant. Hutchinson & Hutchinson, P.C., Oyster Bay, N.Y. (Richard L. Hutchinson of counsel), for respondent.
MARK C. DILLON, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action, inter alia, for permanent injunctive relief, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated May 25, 2011, as denied that branch of its motion which was to preliminarily enjoin the defendant from using certain real property in connection with the defendant's landscaping business.
ORDERED that the order is affirmed insofar as appealed from, with costs.
To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a town need not satisfy the traditional three-part test for injunctive relief, but is required “only [to] show that it has a likelihood of ultimate success on the merits and that the equities are balanced in its favor” ( First Franklin Sq. Assocs., LLC v. Franklin Sq. Prop. Account, 15 A.D.3d 529, 533, 790 N.Y.S.2d 527;see Town of Southampton v. County of Suffolk, 88 A.D.3d 988, 989, 931 N.Y.S.2d 405;Town of Huntington v. Pierce Arrow Realty Corp., 216 A.D.2d 287, 288, 627 N.Y.S.2d 787;Incorporated Vil. of Freeport v. Jefferson Indoor Mar., 162 A.D.2d 434, 436, 556 N.Y.S.2d 150). To obtain relief, a town must “come forward with a strong prima facie showing that the defendants are violating its zoning ordinance” ( Town of Oyster Bay v. Sodomsky, 154 A.D.2d 455, 455, 546 N.Y.S.2d 21;see Town of Oyster Bay v. Dyott, 246 A.D.2d 531, 666 N.Y.S.2d 930). Here, the Town of Oyster Bay failed to make a prima facie showing that the nonconforming use of the subject property had been abandoned and, thus, that the use of the subject property as a landscaping business was not a lawful, preexisting nonconforminguse. Consequently, the Supreme Court correctly denied that branch the Town's motion which was to preliminarily enjoin the defendant from using his real property in connection with his landscaping business ( see Town of Islip v. Modica Assoc. of N.Y. 122, LLC, 45 A.D.3d 574, 575, 846 N.Y.S.2d 201;Town of Southampton v. Sendlewski, 156 A.D.2d 669, 670, 549 N.Y.S.2d 434;Town of Oyster Bay v. Sodomsky, 154 A.D.2d 455, 546 N.Y.S.2d 21;CPLR 4401).