Olechna v. Town of Smithtown

51 A.D.2d 1036, 381 N.Y.S.2d 321, 1976 N.Y. App. Div. LEXIS 11836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1976
• Status: Published

Opinion

In an action inter alia to enjoin defendants from destroying plaintiffs’ means of ingress to and egress from their property, defendants Rimland and Davidow appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, dated May 5, 1975, as enjoined them from (1) interfering with plaintiffs’ deeded right of way and (2) using the said "right of way for any parking which interferes with plaintiffs’ access over” said right of way. Order affirmed insofar as appealed from, with $50 costs and disbursements. Plaintiffs, having established a threat of total elimination of their deeded right of way by virtue of a building permit issued on March 4, 1974 to appellants, as owner and contractor, were entitled to a preliminary injunction against them. Insofar as the injunction extends to the assignees of appellants, objections thereto can properly be raised only by the assignees themselves and, therefore, our sole inquiry is concerned with the propriety of the order insofar as it relates to the appellants themselves. While it is true that an undertaking should have been required (see CPLR 6312, subd [b]), the absence thereof only renders the injunction voidable. Appellants may apply for an undertaking or may move to vacate the injunction. However, Special Term may order that the required undertaking be filed nunc pro tunc in order to preserve the injunction (see 7A Weinstein-Korn-Miller, NY Civ Prac, par 6312.20). Hopkins, Acting P. J., Cohalan, Christ, Shapiro and Titone, JJ., concur.