IN RE: Donald BOENING (2021)

DECISION & ORDER

In twelve related matters, the appeal is from an order of the Supreme Court, Nassau County (Anthony Marano, J.), entered June 7, 2018.  The order, insofar as appealed from, denied that branch of the appellants’ motion which was for a preliminary injunction directing the filing of statements required by Nassau County Administrative Code § 6–30.0 for the years 2013 through 2017.

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

Nassau County Administrative Code § 6–30.0 (hereinafter the ASIE law) was enacted in 2004 to require owners of income-producing properties to file an “Annual Survey of Income and Expenses” statement (hereinafter an ASIE statement).  In 2013, the Nassau County Legislature enacted Local Law 8–2013, which amended the penalty imposed by the ASIE law for a failure to file an ASIE statement (see Nassau County Administrative Code § 6–30.0[f], [j]).  Various owners of income-producing properties in Nassau County (hereinafter collectively the owners) thereafter commenced twelve separate proceedings, actions, and hybrid proceedings and actions, each challenging the constitutionality of the ASIE law.  In May 2018, the appellants moved in all twelve matters, inter alia, for a preliminary injunction directing the owners to file their ASIE statements for the years 2013 through 2017.  The Supreme Court denied that branch of the appellants’ motion, and this appeal ensued.

“ ‘The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor’ ” (X & Y Dev. Group, LLC v. Epic Tower, LLC, 196 A.D.3d 733, 734, 148 N.Y.S.3d 709, quoting Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191).  “The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion” (159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC, 191 A.D.3d 741, 742, 141 N.Y.S.3d 486 [internal quotation marks omitted]).  “[A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment” (Berman v. TRG Waterfront Lender, LLC, 181 A.D.3d 783, 784–785, 122 N.Y.S.3d 317 [internal quotation marks omitted]).

Here, the appellants also moved for leave to amend their answers to assert counterclaims to compel the owners to comply with the ASIE law, and the Supreme Court granted that branch of their motion.  The branch of the appellants’ motion which was for a preliminary injunction sought the ultimate relief that the appellants sought on those counterclaims (see Shake Shack Fulton St. Brooklyn, LLC v. Allied Prop. Group, LLC, 177 A.D.3d 924, 927, 112 N.Y.S.3d 196;  Matter of Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 A.D.3d 1051, 1052, 886 N.Y.S.2d 41).  Additionally, the appellants failed to demonstrate a probability of success on the merits, irreparable injury in the absence of an injunction, and a balance of equities in their favor (see e.g. Berman v. TRG Waterfront Lender, LLC, 181 A.D.3d at 785, 122 N.Y.S.3d 317).  Under these circumstances, the court providently exercised its discretion in denying that branch of the appellants’ motion which was for a preliminary injunction.

The parties’ remaining contentions either need not be reached in light of our determination, are improperly raised for the first time on appeal, or are without merit.

DILLON, J.P., BARROS, WOOTEN and ZAYAS, JJ., concur.