Rentar Development Corp. v. City of New York

Appellate Division of the Supreme Court of New York

Rentar Development Corp. v. City of New York

160 A.D.2d 860, 554 N.Y.S.2d 293, 1990 N.Y. App. Div. LEXIS 4501

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

DecidedApril 16, 1990

StatusPublished

Cited by1 cases

This text of 160 A.D.2d 860 (Rentar Development Corp. v. City of New York) 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

Rentar Development Corp. v. City of New York, 160 A.D.2d 860, 554 N.Y.S.2d 293, 1990 N.Y. App. Div. LEXIS 4501 (N.Y. Ct. App. 1990).

Pincite

Opinion

—In an action for permanent injunctive relief and damages, in which the plaintiff moved for a preliminary injunction pending determination of the action, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated June 16, 1988, which granted the plaintiff’s motion to the extent of restraining the defendant from "engaging in further demolition or construction activities at the locations where plaintiff’s tracks are or were, before defendant demolished them”.

Ordered that the order is affirmed, with costs.

The law is well settled that in order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) that irreparable injury will result without a preliminary injunction, and (3) that a balancing of the equities favors the movant’s position (Grant Co. v Srogi, 52 NY2d 496, 517).

” The defendant does not dispute that it has interfered with the plaintiff’s established right-of-way but claims to have chosen its construction site based upon its belief that the plaintiff’s railroad spurs had been abandoned. The plaintiff’s alleged failure to use the railroad tracks, however, does not demonstrate a clear intent to abandon. Moreover, the owner of the dominant tenement is under no duty to make use of the easement as a condition to retaining its interest therein [861]*861(Castle Assocs. v Schwartz, 63 AD2d 481, 487; Conabeer v New York Cent. & Hudson Riv. R. R. Co., 156 NY 474).

While the defendant contends that the encroachment will impose only a temporary loss of the use of the right-of-way, the plaintiff has adequately demonstrated that the encroachment will render a permanent and thus irreparable injury. Furthermore, it appears that the defendant might have avoided its costly error simply by inquiring of the plaintiff whether it intended to abandon the right-of-way. Although the defendant has expended a considerable sum of money on its initial construction, this does not tip the balance of the equities in favor of the defendant which knew or should have known that its actions would interfere with the plaintiff’s property rights (see, Whalen v Union Bag & Paper Co., 208 NY 1). Mangano, P. J., Thompson, Bracken and Fiber, JJ., concur.

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—In an action for permanent injunctive relief and damages, in which the plaintiff moved for a preliminary injunction pending determination of the action, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated June 16, 1988, which granted the plaintiff’s motion to the extent of restraining the defendant from "engaging in further demolition or construction activities at the locations where plaintiff’s tracks are or were, before defendant demolished them”.

Ordered that the order is affirmed, with costs.

The law is well settled that in order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) that irreparable injury will result without a preliminary injunction, and (3) that a balancing of the equities favors the movant’s position (Grant Co. v Srogi, 52 NY2d 496, 517).

” The defendant does not dispute that it has interfered with the plaintiff’s established right-of-way but claims to have chosen its construction site based upon its belief that the plaintiff’s railroad spurs had been abandoned. The plaintiff’s alleged failure to use the railroad tracks, however, does not demonstrate a clear intent to abandon. Moreover, the owner of the dominant tenement is under no duty to make use of the easement as a condition to retaining its interest therein [861]*861(Castle Assocs. v Schwartz, 63 AD2d 481, 487; Conabeer v New York Cent. & Hudson Riv. R. R. Co., 156 NY 474).

While the defendant contends that the encroachment will impose only a temporary loss of the use of the right-of-way, the plaintiff has adequately demonstrated that the encroachment will render a permanent and thus irreparable injury. Furthermore, it appears that the defendant might have avoided its costly error simply by inquiring of the plaintiff whether it intended to abandon the right-of-way. Although the defendant has expended a considerable sum of money on its initial construction, this does not tip the balance of the equities in favor of the defendant which knew or should have known that its actions would interfere with the plaintiff’s property rights (see, Whalen v Union Bag & Paper Co., 208 NY 1). Mangano, P. J., Thompson, Bracken and Fiber, JJ., concur.

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Bluebook (online)

160 A.D.2d 860, 554 N.Y.S.2d 293, 1990 N.Y. App. Div. LEXIS 4501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rentar-development-corp-v-city-of-new-york-nyappdiv-1990.

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