Town of Southeast v. Gonnella
| Decision Date | 06 June 1966 |
| Citation | 26 A.D.2d 550,270 N.Y.S.2d 863 |
| Court | New York Supreme Court — Appellate Division |
| Parties | TOWN OF SOUTHEAST, Respondent, v. Louise GONNELLA et al., Appellants. |
Before CHRIST, Acting P.J., and RABIN, HOPKINS and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In an action to enjoin the alleged violation of a zoning ordinance by keeping, maintaining and operating certain real property as a sand and gravel bank, defendants appeal from an order of the Supreme Court, Putnam County, entered February 1, 1966, which granted plaintiff's motion for an injunction Pendente lite.
Order reversed and motion denied, with $10 costs and disbursements.
It is well established that the drastic remedy of a temporary injunction is not to be granted unless a clear right thereto is established by the moving papers (Park Terrace Caterers v. McDonough, 9 A.D.2d 113, 191 N.Y.S.2d 1001). The plaintiff's rights must be certain as to the law and the facts and the burden of establishing such an undisputed right rests upon the plaintiff (Pine-Hill Kingston Bus Corp. v. Davis, 225 App.Div. 182, 232 N.Y.S. 536).
In our opinion, plaintiff has not sufficiently demonstrated that it is entitled to the relief demanded in the complaint. There are here involved questions of law and fact, not fully developed in the record, which must be decided upon trial before the rights of the parties can be settled (cf. Town of Somers v. Camarco Contractors, 24 Misc.2d 673, 205 N.Y.S.2d 724, affd. 12 A.D.2d 977, 214 N.Y.S.2d 650; Town of Hempstead v. Romano, 33 Misc.2d 315, 226 N.Y.S.2d 291). Moreover, it cannot be determined from the present record whether the ordinance can be sustained, with respect to defendants' property, under the holding and rationale of Town of Hempstead v. Goldblatt, 19 Misc.2d 176, 189 N.Y.S.2d 577, affd. 9 A.D.2d 941, 196 N.Y.S.2d 573, affd. 9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562, affd. sub. nom. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130, which viewed the ordinance there involved as a 'safety' ordinance.
It is our further opinion that defendants' convictions in 1964 for violation of a prior ordinance, which ordinance was apparently invalid for failure to comply with proper publishing procedures, did not prevent the establishment of a valid, nonconforming use prior to the adoption of the subject ordinance (cf. Town of Greenburgh v. Bobandal Realties, 10 N.Y.2d 414, 223 N.Y.S.2d 857, 179 N.E.2d 702). This being so, an issue...
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