Town of Brookhaven v. Monster Restaurant, Inc.

Appellate Division of the Supreme Court of New York

Town of Brookhaven v. Monster Restaurant, Inc.

61 A.D.2d 980, 402 N.Y.S.2d 607, 1978 N.Y. App. Div. LEXIS 10597

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

DecidedMarch 6, 1978

StatusPublished

Cited by4 cases

This text of 61 A.D.2d 980 (Town of Brookhaven v. Monster Restaurant, Inc.) 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

Town of Brookhaven v. Monster Restaurant, Inc., 61 A.D.2d 980, 402 N.Y.S.2d 607, 1978 N.Y. App. Div. LEXIS 10597 (N.Y. Ct. App. 1978).

Pincite

Opinion

In an action for a mandatory injunction to compel defendant to remove an allegedly illegal structural extension on its property, defendant appeals from an order of the Supreme Court, Suffolk County, entered September 21, 1977, which granted plaintiff’s motion for a preliminary injunction preventing it from using or occupying for any purpose the structural extension. Order reversed, without costs or disbursements, and motion denied. Appellant, which operates "The Monster Restaurant” in the community of Cherry Grove on Fire Island, essentially admits that a structural extension of the front of the restaurant exists in violation of applicable zoning provisions of the Town of Brookhaven. The town commenced this action for a permanent injunction and then moved, pursuant to CPLR 6301, for a preliminary injunction, alleging that the continued use of the structure produced injury to it. Special Term granted the preliminary injunction, holding that "the plaintiff has demonstrated a clear legal right to injunctive relief and is entitled to a preliminary injunction”. We disagree. The moving papers contain unsubstiantiated conclusory allegations that the [981]*981town is suffering "vicarious” injuries which are detrimental to the well-being of the community as a result of the appellant’s use and occupancy of the structural extension. The town has completely failed to demonstrate, as is required by the statute, any injuries whatsoever. Furthermore, the preliminary injunction, which effectively puts a substantial portion of the appellant’s restaurant out of use, seriously disrupts the status quo in favor of the town and does not serve to re-establish the parties’ positions at a prelitigation stage (see Schlosser v United Presbyt. Home at Syosset, 56 AD2d 615; Flynn v Levesque, 43 AD2d 840; 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.16, p 63-33). Damiani, J. P., Titone, Suozzi and O’Connor, JJ., concur.

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In an action for a mandatory injunction to compel defendant to remove an allegedly illegal structural extension on its property, defendant appeals from an order of the Supreme Court, Suffolk County, entered September 21, 1977, which granted plaintiff’s motion for a preliminary injunction preventing it from using or occupying for any purpose the structural extension. Order reversed, without costs or disbursements, and motion denied. Appellant, which operates "The Monster Restaurant” in the community of Cherry Grove on Fire Island, essentially admits that a structural extension of the front of the restaurant exists in violation of applicable zoning provisions of the Town of Brookhaven. The town commenced this action for a permanent injunction and then moved, pursuant to CPLR 6301, for a preliminary injunction, alleging that the continued use of the structure produced injury to it. Special Term granted the preliminary injunction, holding that "the plaintiff has demonstrated a clear legal right to injunctive relief and is entitled to a preliminary injunction”. We disagree. The moving papers contain unsubstiantiated conclusory allegations that the [981]*981town is suffering "vicarious” injuries which are detrimental to the well-being of the community as a result of the appellant’s use and occupancy of the structural extension. The town has completely failed to demonstrate, as is required by the statute, any injuries whatsoever. Furthermore, the preliminary injunction, which effectively puts a substantial portion of the appellant’s restaurant out of use, seriously disrupts the status quo in favor of the town and does not serve to re-establish the parties’ positions at a prelitigation stage (see Schlosser v United Presbyt. Home at Syosset, 56 AD2d 615; Flynn v Levesque, 43 AD2d 840; 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.16, p 63-33). Damiani, J. P., Titone, Suozzi and O’Connor, JJ., concur.

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Bluebook (online)

61 A.D.2d 980, 402 N.Y.S.2d 607, 1978 N.Y. App. Div. LEXIS 10597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-brookhaven-v-monster-restaurant-inc-nyappdiv-1978.

Opinion

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