Waldron v. Hoffman

• Decision Date: 09 July 2015
• Docket Number: 520351
• Citation: 13 N.Y.S.3d 684,2015 N.Y. Slip Op. 06004,130 A.D.3d 1239
• Parties: Daniel J. WALDRON et al., Respondents, v. Patricia HOFFMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1239

13 N.Y.S.3d 684

2015 N.Y. Slip Op. 06004

Daniel J. WALDRON et al., Respondents

v.Patricia HOFFMAN, Appellant.

520351

Supreme Court, Appellate Division, Third Department, New York.

July 9, 2015.

Law Offices of Stephen A. Johnston, Plattsburgh (Stephen A. Johnston of counsel), for appellant.

Law Office of Andrew D. Brockway, Plattsburgh (Andrew D. Brockway of counsel), for respondents.

Before: PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ.

Opinion

ROSE, J.

Appeal from an order of the Supreme Court(Ellis, J.), entered July 3, 2014 in Clinton County, which granted plaintiffs' motion for a preliminary injunction.

The parties own adjoining parcels of real property, title to which was once unified, located on a downtown commercial block in the City of Plattsburgh, Clinton County.During demolition of the building located on defendant's property, her contractor broke an active sewer pipe that ran from plaintiffs' building into the basement of defendant's building where it connected to defendant's sewer pipe.Defendant's contractor reconnected plaintiffs' pipe, but defendant informed plaintiffs that, as part of her construction project, their pipe would be capped and they would no longer be permitted to route their sewer line through defendant's property.Plaintiffs commenced this action seeking, among other things, a declaration that they have a prescriptive or implied easement for their sewer pipe on defendant's property and, pending resolution of these issues, they moved for a preliminary injunction.Supreme Court granted the motion and defendant appeals.¹

“The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual”(Ruiz v. Meloney,26 A.D.3d 485, 486, 810 N.Y.S.2d 216[2006][citation omitted];seeCPLR 6301 ).“The decision to grant or deny a request for a preliminary injunction[is] committed to the sound discretion of the trial court, [and] our review is limited to whether Supreme Court has either exceeded or abused its discretion as a matter of law”(Schulz v. State of N.Y. Exec.,108 A.D.3d 856, 857, 969 N.Y.S.2d 195[2013], lv. dismissed21 N.Y.3d 1051, 973 N.Y.S.2d 85, 995 N.E.2d 1157[2013][internal quotation marks and citation omitted] ).

Although plaintiffs' sewer pipe was clearly visible in defendant's basement, defendant contends that plaintiffs cannot establish an easement by prescription because the function of the pipe was not obvious.However, the photographs and evidence in the record make clear that the pipe entered defendant's building from the direction of plaintiffs' adjacent building and had been there for decades prior to the commencement of the action.Without reaching a conclusion that plaintiffs will prevail by establishing an easement by prescription or implication, there is enough evidence in the record to demonstrate a likelihood of success on the merits (see generallyCooperstown Capital, LLC v. Patton,60 A.D.3d 1251, 1252–1253, 876 N.Y.S.2d 186[2009];Karabatos v. Hagopian,39 A.D.3d 930, 931, 833 N.Y.S.2d 700[2007] ).

Certainly, any disruption to the status quo would render plaintiffs' request for an easement ineffectual, and they have made a plausible claim that if defendant were to unilaterally cut off their residential and commercial tenants' access to the sewer, the potential environmental impact, along with the damage to...