Town of Smithtown v. Schleider

156 A.D.2d 668, 549 N.Y.S.2d 433, 1989 N.Y. App. Div. LEXIS 16438

Opinion

In an action for a permanent injunction prohibiting the defendant, inter alia, from conducting a concrete recycling operation, the defendant appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Suffolk County (Mallon, J.), entered April 28, 1988, as granted the plaintiff’s motion for a preliminary injunction, and (2) so much of an order of the same court, entered September 29, 1988, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order entered April 28, 1988, is dismissed, as that order was superseded by the order entered September 29, 1988, made upon reargument; and it is further,

Ordered that the order entered September 29, 1988, is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The plaintiff town demonstrated a likelihood of success on the merits as to the underlying action for a permanent injunction and it was not necessary for the plaintiff to demonstrate that the defendant’s allegedly illegal use of his property was causing irreparable injury (see, Village of Pelham Manor v Crea, 112 AD2d 415, 416; Town of Islip v Clark, 90 AD2d 500). Further, in balancing the equities, the protection of the public is of paramount consideration. Thus, the issuance of a preliminary injunction was proper. Bracken, J. P., Brown, Kunzeman and Kooper, JJ., concur.