Miller v. Price — 267 A.D.2d 363

Majority

p. 363

James Miller et al., Appellants, v William H. Price, Jr., as Justice of the Justice Court of the Town of Southold, et al., Respondents.

[700 NYS2d 209]

—In an action, inter alia, to enjoin the defendants from maintaining certain criminal and civil proceedings against the plaintiffs, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated December 17,1998, as denied their motion for a preliminary injunction.

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

In March 1998, while the plaintiffs were installing part of a platform to be used to display a sculpture, the defendant Michael J. Verity, the Building Inspector of the Town of Southold, issued a so-called “stop-work order”. Instead of appealing the stop-work order to the Zoning Board of Appeals of the Town of Southold, the plaintiffs commenced the instant action in the Supreme Court. The plaintiffs’ failure to pursue their administrative remedies by a timely administrative appeal of the determination of the building inspector bars judicial intervention (see, Matter of Nautilus Landowners Corp. v Harbor Commn., 232 AD2d 418 ; Matter of Rattner v Planning Commn., 156 AD2d 521 , 527; Haddad v Salzman, 188 AD2d 515 , 517; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854 ).

In any event, the Supreme Court did not err in denying the motion for a preliminary injunction. It is well settled that to be entitled to preliminary injunctive relief, the movant must es

p. 364

tablish: (1) a likelihood of ultimate success on the merits,. (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant’s position (see, Grant Co. v Srogi, 52 NY2d 496 , 517; Albini v Solork Assocs., 37 AD2d 835 ; Doe v Poe, 189 AD2d 132 ). Preliminary injunctive relief is a drastic remedy and will only be granted if the movant establishes a clear right to it under the law and the undisputed facts found in the moving papers (Anastasi v Majopan Realty Corp., 181 AD2d 706 , 707; County of Orange v Lockey, 111 AD2d 896 ). The plaintiffs failed to establish their entitlement to that relief. S. Miller, J. P., O’Brien, McGinity and Smith, JJ., concur.

Cases cited

Nautilus Landowners Corp. v. Harbor Commission 232 AD2d 418 N.Y. App. Div. 1996-10-07 p. 363
Rattner v. Planning Commission of Village of Pleasantville 156 AD2d 521 N.Y. App. Div. 1989-12-13 at 527 p. 363
Haddad v. Salzman 188 AD2d 515 N.Y. App. Div. 1992-12-14 at 517 p. 363
White v. Incorporated Village of Plandome Manor 190 AD2d 854 N.Y. App. Div. 1993-02-22 p. 363
W. T. Grant Co. v. Srogi 52 NY2d 496 N.Y. 1981-04-09 at 517 p. 364
Doe v. Poe 189 AD2d 132 N.Y. App. Div. 1993-03-22 p. 364
Anastasi v. Majopon Realty Corp. 181 AD2d 706 N.Y. App. Div. 1992-03-09 at 707 p. 364