STATE v. PREMIER COLOR OF INC (2001)

In an action, inter alia, to permanently enjoin the defendants from operating a textile plant, the defendants appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated June 22, 2000, which granted the plaintiffs' motion to preliminarily enjoin the defendants from operating their textile plant until they abate the public nuisance created by noxious odors emanating from the plant.

ORDERED that the order is modified by deleting the provision thereof granting the plaintiffs' motion to preliminarily enjoin the defendants from operating their textile plant and substituting therefor a provision granting the motion to the extent of preliminarily enjoining the defendants from operating the textile plant except between the hours of 1 A.M. and 6 A.M. until such time as the public nuisance created by noxious odors emanating from the plant is abated;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the plaintiffs' application for a permanent injunction within 60 days of the date of this decision and order.

 A preliminary injunction may be granted when the party seeking such relief demonstrates a likelihood of success on the merits, irreparable injury if the provisional relief is withheld, and a balance of the equities in favor of the moving party (see, Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272).

 In this case, the balance of the equities is in favor of the defendants.   They have demonstrated that a temporary closure of the plant will most likely lead to the permanent closure of their textile-dyeing business.   Additionally, they have installed a wet electrostatic precipitator which, they claim, is a long-term solution to abate the problem of the emission of noxious odors from the plant.   Accordingly, limiting the operation of the plant to the early morning hours is appropriate, at least until such time as the efficacy of the installation of the electrostatic precipitator is measured.   Operation of the plant during these hours will minimize the deleterious effects of the emissions on the people surrounding the plant.