Flynn v. Levesque

43 A.D.2d 840, 351 N.Y.S.2d 166, 1974 N.Y. App. Div. LEXIS 5967

Opinion

'In an action inter alla to enjoin defendant Oswald, the Build-' ing Inspector of the Town of Cortlandt, from issuing a certificate of occupancy to defendant Levesque, plaintiffs appeal from an order of the Supreme Court, Westchester County, entered August 15, 1973, which denied their motion for a preliminary injunction against both defendants. Order reversed, with one bill of $20 costs and disbursements against defendants jointly, and motion . granted to the extent of preliminarily enjoining defendant Oswald from issuing a certificate of occupancy. Defendant Levesque built a home and is presently occupying it. However, a driveway was not built as required and no certificate of occupancy was issued. Defendant Oswald served a notice of violation upon Levesque, which notice advised the latter that he was occupying, his premises without first obtaining a certificate of occupancy as required by the Zoning Ordinance of the Town of Cortlandt. No further steps have been taken by either of the defendants, although Oswald has stated that he now intends to issue the certificate of occupancy. Having complied with section 268 of the Town Law, appellants have standing to sue. The record is unclear as to the nature of the dispute involving the driveway. It appears that one has been built, but perhaps not where it was stated to be built in the application for the driveway permit (which is not part of the record) and perhaps in violation of the property rights of an adjoining landowner. The notice of violation issued by Oswald is unexplained and outstanding. While preliminary injunctive relief is a drastic remedy which will not be granted unless a clear. right thereto is established by the moving papers (Town of Southeast v. Gonnella, ' ■26 A D 2d 550), there is ample cause for its granting here. To permit Oswald to issue a certificate of occupancy now will prevent resolution of the issue on the merits. Shapiro, Acting P, J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.