Koehler v. Town of Smithtown

280 A.D.2d 648, 720 N.Y.S.2d 835, 2001 N.Y. App. Div. LEXIS 1864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2001
• Status: Published

Opinion

—In an action, inter alia, to permanently enjoin the defendants from interfering with the plaintiffs’ right to erect a one-story commercial structure pursuant to a building permit issued by the defendant Building Department of the Town of Smithtown, the defendants appeal from an order of the Supreme Court, Suffolk County (Catterson, J.), dated May 31, 2000, which granted the plaintiffs’ motion for a preliminary injunction.

Ordered that the order is affirmed, with costs.

To establish their entitlement to a preliminary injunction, the plaintiffs were required to demonstrate a likelihood of success on the merits, irreparable injury absent the granting of an injunction, and a balancing of the equities in their favor (see, Somers Stained Glass Corp. v Somers Designs, 277 AD2d 442; Clarion Assocs. v Colby Co., 21 & AD2d 461). On the instant record, the Supreme Court properly issued the challenged preliminary injunction. In opposition to the plaintiffs’ motion, the appellants were totally unprepared for a hearing on the motion and failed to adduce any evidence rebutting that proffered by the plaintiffs. Having failed to present any evidence in opposition, the appellants’ present contentions are virtually all unpreserved for appellate review and we decline to exercise our interest of justice jurisdiction to enable the appellants to present proof and arguments that should have been offered before the Supreme Court. Krausman, J. P., S. Miller, McGinity and Feuerstein, JJ., concur.