St. George's Syrian Catholic Church v. Eisenstein Associates, Inc.

34 A.D.2d 947, 312 N.Y.S.2d 228, 1970 N.Y. App. Div. LEXIS 4213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1970
• Status: Published

Opinion

Judgment entered September 8, 1969, unanimously modified on the law and on the facts, to strike the award of $75,000 consequential damages against Heyward-Robinson Company, Inc., and to enjoin Trinity Garage, Inc., from operating the garage elevators in their premises adjacent to plaintiff’s property commencing 60 days from entry of the order herein and continuing until the sum of $75,000 is paid to the plaintiff. The judgment is otherwise affirmed, wtihout costs and without disbursements. Permanent damages may only be awarded in lieu of the permanent injunction to which a plaintiff is entitled. {Boomer v. Atlantic Cement Co., 26 N Y 2d 219; Haber v. Paramount Ice Corp., 239 App. Div. 324, 328, affd. 264 N. Y. 98; Slobodkina v. Village of Great Neck, 285 App. Div. 908, 909.) Trinity as owner and operator of the offending garage is in sole control. It has the sole power to discontinue the nuisance. Trinity will be the sole beneficiary of the continued use of its garage. Under these circumstances it was error for Trial Term to have east Heyward, the general contractor who built the garage, in consequential damages. Upon this record, a permanent injunction against Trinity was warranted. But under the circumstances, the continuance of the permanent injunction should be conditioned upon payment of the $75,000 as permanent damages. Concur—Stevens, P. J., Eager, McGivern and Nunez, JJ.