Medvin v. Grauer

Appellate Division of the Supreme Court of New York

Medvin v. Grauer

46 A.D.2d 912, 363 N.Y.S.2d 330, 1974 N.Y. App. Div. LEXIS 3243

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1974

StatusPublished

Cited by10 cases

This text of 46 A.D.2d 912 (Medvin v. Grauer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Medvin v. Grauer, 46 A.D.2d 912, 363 N.Y.S.2d 330, 1974 N.Y. App. Div. LEXIS 3243 (N.Y. Ct. App. 1974).

Pincite

Opinion

— In an action for a mandatory injunction to compel defendant to remove eaves which allegedly project from the roof of her dwelling to the extent of approximately 1% feet over plaintiff’s unimproved land adjacent thereto, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated May 20,1974, which denied their motion for summary judgment. Order affirmed, without costs. We agree with Special Term that, assuming plaintiffs are entitled to some relief, it does not necessarily follow that they are entitled to the mandatory injunction which they seek. Circumstances are alleged in the answering affidavit which, if not completely mitigatory of the alleged encroachment, are such as to considerably soften the retaliatory relief sought by plaintiffs. Crocker v. Manhattan Life Ins. Co. (61 App. Div. 226), which is relied upon by plaintiffs, when applied to the circumstances at bar, does not, in our opinion, warrant the summary granting of the mandatory injunction sought. In Crocker, in which a plenary trial had been held, the First Department noted that in an action in equity for a mandatory injunction the court may consider the hardship to a defendant and the corresponding lack of benefit to a plaintiff were the injunction to be granted. Defendant’s affidavit raises, inter alia, triable issues as to whether the encroachment complained of was willful on her part, what damage, if any, plaintiffs sustained as a result of the encroachment and whether monetary damages, measured by the difference between the value of plaintiffs’ property subject to the alleged encroachment, and the value of the property absent the encroachment, would be the just and adequate remedy here. The granting of a mandatory injunction is an extraordinary remedy and the court must weigh the conflicting considerations of benefit to the plaintiff and harm to the defendant which would follow the granting of such a drastic remedy (Lexington é Fortieth Corp. v. Callaghan, 281 N. Y. 526, 531; see, also, Real Property Actions and Proceedings Law, § 871; Ligh¡tfoot v. Davis, 198 N. Y. 261, 273; State of New York v. Ole Olsen, Ltd., 38 A D 967; Wages v. Wages, 38 A D 2d 968). Gulotta, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— In an action for a mandatory injunction to compel defendant to remove eaves which allegedly project from the roof of her dwelling to the extent of approximately 1% feet over plaintiff’s unimproved land adjacent thereto, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated May 20,1974, which denied their motion for summary judgment. Order affirmed, without costs. We agree with Special Term that, assuming plaintiffs are entitled to some relief, it does not necessarily follow that they are entitled to the mandatory injunction which they seek. Circumstances are alleged in the answering affidavit which, if not completely mitigatory of the alleged encroachment, are such as to considerably soften the retaliatory relief sought by plaintiffs. Crocker v. Manhattan Life Ins. Co. (61 App. Div. 226), which is relied upon by plaintiffs, when applied to the circumstances at bar, does not, in our opinion, warrant the summary granting of the mandatory injunction sought. In Crocker, in which a plenary trial had been held, the First Department noted that in an action in equity for a mandatory injunction the court may consider the hardship to a defendant and the corresponding lack of benefit to a plaintiff were the injunction to be granted. Defendant’s affidavit raises, inter alia, triable issues as to whether the encroachment complained of was willful on her part, what damage, if any, plaintiffs sustained as a result of the encroachment and whether monetary damages, measured by the difference between the value of plaintiffs’ property subject to the alleged encroachment, and the value of the property absent the encroachment, would be the just and adequate remedy here. The granting of a mandatory injunction is an extraordinary remedy and the court must weigh the conflicting considerations of benefit to the plaintiff and harm to the defendant which would follow the granting of such a drastic remedy (Lexington é Fortieth Corp. v. Callaghan, 281 N. Y. 526, 531; see, also, Real Property Actions and Proceedings Law, § 871; Ligh¡tfoot v. Davis, 198 N. Y. 261, 273; State of New York v. Ole Olsen, Ltd., 38 A D 967; Wages v. Wages, 38 A D 2d 968). Gulotta, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

46 A.D.2d 912, 363 N.Y.S.2d 330, 1974 N.Y. App. Div. LEXIS 3243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medvin-v-grauer-nyappdiv-1974.

Opinion

Related

Cite This Page — Counsel Stack