MILLER v. PRICE (1999)

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 A.D.2d 418, 648 N.Y.S.2d 627;  Matter of Rattner v. Planning Commn. of the Vil. of Pleasantville, 156 A.D.2d 521, 527, 548 N.Y.S.2d 943;  Haddad v. Salzman, 188 A.D.2d 515, 517, 591 N.Y.S.2d 193;  Matter of White v. Incorporated Vil. of Plandome Manor, 190 A.D.2d 854, 593 N.Y.S.2d 881).

 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 establish:   (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, W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953;  Albini v. Solork Assoc., 37 A.D.2d 835, 326 N.Y.S.2d 150;  Doe v. Poe, 189 A.D.2d 132, 595 N.Y.S.2d 503).  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. Majopon Realty Corp., 181 A.D.2d 706, 707, 581 N.Y.S.2d 223;  County of Orange v. Lockey, 111 A.D.2d 896, 490 N.Y.S.2d 605).   The plaintiffs failed to establish their entitlement to that relief.

MEMORANDUM BY THE COURT.