Braunstein v Hodges
2018 NY Slip Op 00401 [157 AD3d 850]
January 24, 2018
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 28, 2018


[*1]
 Barry Braunstein et al., Appellants,
v
Joan Hodges, Respondent.

Avrom R. Vann, P.C., New York, NY, for appellants.

Bruce S. Reznick, P.C. (Thomas Torto, New York, NY [Jason Levine], of counsel), for respondent.

Appeal from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated March 2, 2016. The order denied the plaintiffs' motion for a preliminary injunction enjoining the defendant from interfering with an alleged easement over certain real property.

Ordered that the order is affirmed, with costs.

The plaintiffs commenced this action for a permanent injunction enjoining the defendant from interfering with an alleged easement over certain real property. The defendant submitted an answer in which she alleged that the subject easement had been extinguished through adverse possession. More than seven months later, the plaintiffs moved for a preliminary injunction enjoining the defendant from interfering with the alleged easement during the pendency of this action. The Supreme Court denied the plaintiffs' motion, and the plaintiffs appeal.

To establish the right to a preliminary injunction, the plaintiff must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff's favor (see CPLR 6301; J. A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 406 [1986]; 19 Patchen, LLC v Rodriguez, 153 AD3d 1382, 1383 [2017]). Here, the plaintiffs failed to establish these three elements. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for a preliminary injunction.

The plaintiffs' remaining contention is not properly before this Court (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473 [1986]). Chambers, J.P., Hall, Duffy and Barros, JJ., concur. [Prior Case History: 50 Misc 3d 1223(A), 2016 NY Slip Op 50249(U).]