Town of Oyster Bay v. New York Telephone Co.

Full title: TOWN OF OYSTER BAY, Appellant, v. NEW YORK TELEPHONE COMPANY, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 14, 1980

75 A.D.2d 598 (N.Y. App. Div. 1980)

Opinion

April 14, 1980

In an action to permanently enjoin defendant from (1) erecting utility poles and (2) removing any town-owned trees, without the approval of its superintendent of highways, the Town of Oyster Bay appeals from an order of the Supreme Court, Nassau County, dated January 12, 1979, which denied its motion for a preliminary injunction. Appeal dismissed as academic, with $50 costs and disbursements. Since Special Term and this court denied plaintiff's motions for a preliminary injunction, defendant has lawfully erected the poles in controversy. An injunction will not issue to prohibit a fait accompli (see Katz v. Hoe Co., 278 App. Div. 766, mot for lv to app den 302 N.Y. 949, cert den 342 U.S. 886; 7A Weinstein-Korn-Miller, N.Y. Civ Prac, par 6301.15). Lazer, J.P., Mangano, Gibbons and Margett, JJ., concur.