April 16, 1990
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the order is affirmed, with costs.
The law is well settled that in order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) that irreparable injury will result without a preliminary injunction, and (3) that a balancing of the equities favors the movant's position (Grant Co. v. Srogi, 52 N.Y.2d 496, 517).
The defendant does not dispute that it has interfered with the plaintiff's established right-of-way but claims to have chosen its construction site based upon its belief that the plaintiff's railroad spurs had been abandoned. The plaintiff's alleged failure to use the railroad tracks, however, does not demonstrate a clear intent to abandon. Moreover, the owner of the dominant tenement is under no duty to make use of the easement as a condition to retaining its interest therein (Castle Assocs. v. Schwartz, 63 A.D.2d 481, 487; Conabeer v. New York Cent. Hudson Riv. R.R. Co., 156 N.Y. 474).
While the defendant contends that the encroachment will impose only a temporary loss of the use of the right-of-way, the plaintiff has adequately demonstrated that the encroachment will render a permanent and thus irreparable injury. Furthermore, it appears that the defendant might have avoided its costly error simply by inquiring of the plaintiff whether it intended to abandon the right-of-way. Although the defendant has expended a considerable sum of money on its initial construction, this does not tip the balance of the equities in favor of the defendant which knew or should have known that its actions would interfere with the plaintiff's property rights (see, Whalen v. Union Bag Paper Co., 208 N.Y. 1). Mangano, P.J., Thompson, Bracken and Eiber, JJ., concur.