159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC
| Decision Date | 10 February 2021 |
| Docket Number | Index No. 520414/18,2019–08969 |
| Citation | 141 N.Y.S.3d 486,191 A.D.3d 741 |
| Parties | 159 SMITH, LLC, respondent, v. BOREUM HILL PROPERTY HOLDINGS, LLC, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
191 A.D.3d 741
141 N.Y.S.3d 486
159 SMITH, LLC, respondent,
v.
BOREUM HILL PROPERTY HOLDINGS, LLC, appellant, et al., defendants.
2019–08969
Index No. 520414/18
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 30, 2020
February 10, 2021
Ronald Francis, New York, NY, for appellant.
The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Michelle C. Englander and Sarah R. Gitomer of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for trespass, the defendant Boreum Hill Property Holdings, LLC, appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated May 24, 2019. The order granted the plaintiff's motion for a preliminary injunction.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, to fix an appropriate undertaking pursuant to CPLR 6312.
The plaintiff is the owner of a building located at 159 Smith Street in Brooklyn. The defendant Boreum Hill Property Holdings, LLC (hereinafter Boreum Hill), owns a lot adjoining the plaintiff's building. In 2018, Boreum Hill began constructing a new building on that lot. The plaintiff alleges that in the course of that construction, Boreum Hill and/or its agents and contractors entered the plaintiff's property without permission. The plaintiff alleges that agents and/or contractors for Boreum Hill then drilled multiple holes in the wall of the plaintiff's building, and attached tie rods to those holes in order to secure the foundation of the new building. The plaintiff commenced this action, inter alia, to recover damages for trespass and for an order directing the removal of the encroachment. In an order dated May 24, 2019, the Supreme Court granted the plaintiff's motion for a preliminary injunction enjoining the defendants from engaging in, among other things, any construction activities on that portion of its property
which adjoins or abuts the plaintiff's property.
Contrary to the plaintiff's contention, the May 24, 2019 order is appealable (see CPLR 5701[a] ).
The Supreme Court providently exercised its discretion in granting the plaintiff's motion for a preliminary injunction. "The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" ( ...
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...the absence of an injunction, and (3) a balance of the equities in favor of the injunction" (see 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC , 191 A.D.3d 741, 742, 141 N.Y.S.3d 486 (2021) ; Arcamone–Makinano v. Britton Prop., Inc. , 83 A.D.3d 623, 624, 920 N.Y.S.2d 362 (2011) ). "The ......
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...is a matter ordinarily committed to the sound discretion of the court hearing the motion" ( 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC , 191 A.D.3d 741, 742, 141 N.Y.S.3d 486 [2d Dept. 2021] [internal quotation marks omitted]). Here, the court applies the analysis in recent federal d......
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