X&Y Dev. Group, LLC v. Epic Tower, LLC

2021 NY Slip Op 04578

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 2021
• Docket: Index No. 707065/16
• Status: Published

Opinion

X&Y Dev. Group, LLC v Epic Tower, LLC (2021 NY Slip Op 04578)

X&Y Dev. Group, LLC v Epic Tower, LLC

2021 NY Slip Op 04578

Decided on July 28, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 28, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
SYLVIA O. HINDS-RADIX, J.P.
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.

2018-04354
(Index No. 707065/16)

[*1]X & Y Development Group, LLC, appellant,

v

Epic Tower, LLC, et al., respondents, et al., defendants.

Bret L. McCabe, Glen Head, NY (Lisa Solomon of counsel), for appellant.

Litchfield Cavo LLP, New York, NY (Dennis J. Dozis and Morgan E. Mueller of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, for injunctive relief and to recover damages for trespass, the plaintiff appeals from an order of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), entered February 26, 2018. The order, insofar as appealed from, denied the plaintiff's motion for a preliminary injunction with respect to the subject real property other than a portion thereof deemed "the Alleyway."

ORDERED that the order is affirmed insofar as appealed from, with costs.

As more expansively set forth in our decision and order on a related appeal (see X & Y Dev. Group, LLC v Epic Tower, LLC, ___ AD3d ___ [Appellate Division Docket No. 2018-03848; decided herewith]), the plaintiff and the defendant Epic Tower, LLC (hereinafter the defendant), own adjacent properties in Queens. A dispute arose between them as to the ownership of a portion of property along the border of their two parcels, deemed "the Triangle."

The plaintiff commenced this action, inter alia, to enjoin the defendant from trespassing upon the Triangle during the course of a construction project being performed by the defendant and to require it to remove encroachments upon that property. The plaintiff moved, among other things, for a preliminary injunction granting such relief with respect to the Triangle. In an order entered February 26, 2018, the Supreme Court denied those branches of the motion, although it granted the plaintiff preliminary injunctive relief with respect to a portion of the subject property deemed "the Alleyway." The plaintiff appeals.

"The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840; see CPLR 6301). Here, the plaintiff failed to demonstrate its entitlement to preliminary injunctive relief with respect to the Triangle since, as discussed in our decision and order on the related appeal, the Supreme Court properly determined that the defendant was the title owner of the Triangle (see X & Y Dev. Group, LLC v Epic Tower, LLC, ___ AD3d ___ [Appellate Division Docket No. 2018-03848]).

Accordingly, we affirm the order insofar as appealed from.

HINDS-RADIX, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court