Brodsky v. City of Rochester

142 A.D.2d 1002, 530 N.Y.S.2d 421, 1988 N.Y. App. Div. LEXIS 15062

Opinion

To be entitled to a preliminary injunction, the movant must demonstrate: (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the preliminary injunction; and (3) that the equities weigh in his favor (Niagara Recycling v Town of Niagara, 83 AD2d 316, 324; Tucker v Toia, 54 AD2d 322, 324). Plaintiff bears the burden of establishing his undisputed entitlement to a preliminary injunction through the tender of evidentiary proof (Armbruster v Gipp, 103 AD2d 1014; Camardo v Board of Educ., 50 AD2d 1073). Plaintiff has failed to satisfy that burden.

Although plaintiff’s tenants are unable to proceed westerly on East Avenue after they leave the complex, their ingress to and egress from the apartment project is not obstructed or impeded. The tenants’ inconvenience results not from any obstruction of their entrance and exit way, but from the closing of a portion of East Avenue which is an inconvenience suffered in common with other residents of East Avenue. Moreover, plaintiff has not shown that the equities weigh in his favor since the opening of the entrance and exit to and from Gould Street will impose an additional burden on the residents of that street. (Appeal from order of Supreme Court, Monroe County, Scudder, J.— preliminary injunction.) Present—Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.