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Rowland v. Dushin

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 2011
82 A.D.3d 738 (N.Y. App. Div. 2011)

Opinion

No. 2010-01355.

March 1, 2011.

In an action, inter alia, to permanently enjoin the defendants from constructing a structure, described as a "pole barn" within a certain "Association Area," the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), dated January 15, 2010, which denied their motion for a preliminary injunction.

Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for appellants.

William J. Florence, Jr., Peekskill, N.Y., for respondents.

Before:Dillon, J.P., Florio, Dickerson and Cohen, JJ.


Ordered that the order is affirmed, with costs.

The defendant Leona Dushin (hereinafter Dushin) owns several parcels of contiguous real property in the Town of Philipstown, Putnam County, and in the neighboring Town of Cortlandt, in Westchester County. The parcel at issue is known as the "Dushin Pasture" where Dushin operates a horse farm which has been in continuous existence since 1948. Dushin resides with her adult son, the defendant Karl Dushin, in a residence situated on a separate lot north of the Dushin Pasture. The plaintiff Hugh Rowland, Jr., owns a parcel of real property directly to the south of the Dushin Pasture. The plaintiff David Spears owns a parcel of real property located to the west of the Dushin Pasture. Both Rowland and Spears access their properties via a 600-foot driveway located on Spears's property and over which Rowland has an easement. The driveway runs parallel to and is near the boundary between Spears's property and the Dushin Pasture. In this action, the defendants challenge Dushin's construction of a pole barn in the vicinity of the driveway. The Supreme Court denied the plaintiffs' motion for a preliminary injunction. We affirm.

To be entitled to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor ( see CPLR 6312 [c]; Board of Mgrs. of Wharfside Condominium v Nehrich, 73 AD3d 822, 824; Yemini v Goldberg, 60 AD3d 935, 936). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court ( see Gluck v Hoary, 55 AD3d 668, 668; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073).

Here, the plaintiffs did not meet their burden of demonstrating that they would suffer irreparable injury if the preliminary injunction were not granted ( see Dixon v Malouf, 61 AD3d 630; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072; 1659 Ralph Ave. Laundromat Corp. v Ben David Enters., 307 AD2d 288, 289; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 271 AD2d 656; cf. Winzelberg v 1319 50th Realty Corp., 52 AD3d 700). The plaintiffs failed to point to any imminent and nonspeculative harm that would befall them in the absence of the requested relief, and failed to demonstrate that any injuries they would suffer would not be compensable by money damages ( see EdCia Corp. v McCormack, 44 AD3d 991, 994; Neos v Lacey, 291 AD2d 434, 435).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for a preliminary injunction.


Summaries of

Rowland v. Dushin

Appellate Division of the Supreme Court of New York, Second Department
Mar 1, 2011
82 A.D.3d 738 (N.Y. App. Div. 2011)
Case details for

Rowland v. Dushin

Case Details

Full title:HUGH ROWLAND, JR., et al., Appellants, v. LEONA DUSHIN et al., Respondents

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

Date published: Mar 1, 2011

Citations

82 A.D.3d 738 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 1639
917 N.Y.S.2d 702

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