Jeanette L. Miller v Timothy Powers

Miller v Powers 2006 NY Slip Op 04626 [30 AD3d 1060] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

Jeanette L. Miller et al., Respondents, v Timothy Powers et al., Appellants.

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Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered September 14, 2005. The order granted plaintiffs' motion for a preliminary injunction.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion in granting plaintiffs' motion for a preliminary injunction enjoining defendants from, inter alia, constructing a dock, stairway or other structure on the contested lands and from exercising riparian rights to the waters of Cayuga Lake in the area within 100 feet of the shoreline west of plaintiffs' land (see generally Doe v Axelrod, 73 NY2d 748, 750 [1988]; Abramo v HealthNow N.Y., 305 AD2d 1009 [2003]; Esi-Data Connections v Proulx, 185 AD2d 705 [1992]). Plaintiffs demonstrated the requisite "likelihood of ultimate success on the merits[,] . . . the prospect of irreparable injury if the provisional relief is withheld[,] and . . . a balance of equities tipping in [their] favor" (Doe, 73 NY2d at 750). Contrary to the contention of defendants, plaintiffs established a likelihood of success in establishing that defendants either have no riparian rights or that they have limited rights that may not unreasonably interfere with plaintiffs' rights. Present—Pigott, Jr., P.J., Scudder, Kehoe, Smith and Pine, JJ.