Town of Stanford v. Donnelly

131 A.D.2d 465, 516 N.Y.S.2d 96, 1987 N.Y. App. Div. LEXIS 47919

Opinion

In an action to enjoin the defendant from performing certain construction without a permit, the defendant appeals from an order of the Supreme Court, Dutchess County (Martin, J.), dated January 23, 1986, which denied her motion to vacate a preliminary injunction, or, in the alternative, for reargument.

Ordered that the order is affirmed, with costs.

A motion to vacate a preliminary injunction is addressed to the sound discretion of the court, and a party claiming error in a ruling on such a motion must show an abuse of this discretion (see, Rosemont Enters. v Irving, 49 AD2d 445, appeal dismissed 41 NY2d 829). The appellant failed to make such a showing. While the belated discovery of a building permit may constitute the type of changed circumstances which could support a motion to vacate the preliminary injunction (see, CPLR 6314; Board of Trustees v W. Wilton Wood, Inc., 97 AD2d 781, 782, lv dismissed 61 NY2d 605), the existence of the permit in this case did not warrant the vacatur of the preliminary injunction. The extant permit authorized only a single-story addition, while the construction work actually commenced by the appellant far exceeded the work authorized by the permit. Furthermore, the provision of the Town Code of the Town of Stanford relating to amendments to permits (see, Stanford Town Code § 96-12 [C]) cannot be interpreted to provide that a permit may be relied upon to authorize such a substantial alteration of the construction plan submitted with the original permit application as is involved in this case. Brown, J. P., Weinstein, Rubin and Kooper, JJ., concur.