Paley v. Copake Lake Development Corp.

¶1dissents and votes to reverse in the following memorandum. Weiss, J. (dissenting). I respectfully dissent. Initially, it must be observed that the record is devoid of any evidence whatsoever with reference to the cause of action by plaintiff Walsheim, other than an allegation in the complaint that “plaintiffs are owners of real property located at Copake Lake” and that “plaintiffs or their predecessors in title, purchased real property from defendant”. The deed annexed to the complaint as Exhibit A is plaintiff Paley’s deed and fails to establish a cognizable cause of action on behalf of Walsheim. Defendant’s motion for summary judgment as to that plaintiff should have been granted. The majority holds that “plaintiff has established those factors necessary to entitle him to injunctive relief” finding “[cjertainly irreparable harm will occur upon termination of sewerage services”. I disagree. Plaintiff Paley’s affidavit contains no more than his conclusory statement that severe injury and irreparable damage to his home, safety, health and welfare as well *904as substantial damage to the value of his property will result from termination, interruption or discontinuance of the sewer system. The rule is that a preliminary injunction may properly issue only when plaintiff demonstrates (1) likelihood of his ultimate success upon the merits, (2) irreparable injury to him absent the granting of the preliminary injunction, and (3) a balancing of equities (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021, 1022). Plaintiff Paley has failed to show that he would be unable to secure continuation of sewer services either from' the municipality, or from other sources, or that he could not install a septic tank system. The cost of any of these alternative substitutes would be easily capable of cost evaluation and thus recoverable in money damages should he prevail. While Paley’s deed did contain a clear obligation by this defendant to furnish and supply water, there is nothing in the deed from which it may be concluded defendant undertook a warranty or promise to operate and maintain a sewage system. There is nothing in this record other than Paley’s unsubstantiated conclusory allegations to impose responsibility upon defendant for such obligation. That defendant did, following dissolution of North Shore Sewerage Disposal Corporation, endeavor to continue the service covenanted by that corporation, should not be held to constitute an agreement to provide sewage disposal in perpetuity (see Armstrong v County of Onondaga, 85 AD2d 906, 907). I further find this record lacking any proof to demonstrate that defendant either undertook or assumed an obligation to provide sewage service in perpetuity. It therefore appears that plaintiff Paley has failed to demonstrate likelihood of success upon trial or irreparable injury sufficient to sustain the temporary injunction. It is settled that the grant or denial of a preliminary injunction rests within the discretion of Special Term (James v Board of Educ., 42 NY2d 357, 363) and that appellate review is limited to whether that discretion has been abused (R & J Bottling Co. v Rosenthal, 40 AD2d 911, 912; see Lowe v Reynolds, 75 AD2d 967 [Greenblatt, J., dissenting]). I find that Special Term erred in granting the order and would reverse and grant defendant summary judgment dismissing the complaint.