Pinelawn Cemetery v Coastal Distrib., LLC

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Pinelawn Cemetery v Coastal Distrib., LLC 2004 NY Slip Op 30365(U) August 6, 2004 Supreme Court, Suffolk County Docket Number: 8599-2004 Judge: Ralph F. Costello Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ~ [* 1] 1 i T COPY SHORT FORM ORDER INDEX NO. 8599-2 SUPREME COURT - STATE OF NEW YORK I .A.S PART XXVII SUFFOLK COUNTY . I PRESENT : Honorable Ralph F. Costello X R/D 4-23-04 S/D 5-11-04 Motion No. OOI-MD, PINELAWN CEMETERY, Plaintiff - against - PLAINTIFF'S ATTORNEY FARRELL FRITZ P.C. BY: JOHN M. ARMENTANO, ESQ EAB Plaza UNIONDALE, NY 11556-0120 COASTAL DISTRIBUTION, LLC, METROPOLITAN TRANSPORTATION AUTHORITY, THE LONG ISLAND RAILROAD COMPANY, and THE NEW YORK AND ATLANTIC RAILWAY, DEFENDANT'S ATTORNEY FORCHELLI CURT0 SCHWARTZ E AL BY: DONALD J. SCHWARTZ, E c S Attys for Def. Coastal 330 Old Country Rd PO Box : Mineola, NY 11501 Defendants SINNREICH SAFAR & KOSAKOFF LLP Attys for Def. MTA & LIRR 320 Carleton Ave. Ste 3200 Central Islip, NY 11722 RUBIN & PURCELL, LLP Attys for Def. NY & Atlanta 330 Vanderbilt Motor Pkwy Hauppauge, NY 11788 RR Upon the following papers numbered 1 to 51 read on t l motion for Dreliminarv iniunction Order to Show Cause a 1 supporting papers 1-19 : Answering Affidavits and supportins papers 20-32; 33-40: 41-48 ; Reply Affidavits 49-51 ; it : 5 ORDERED, that the motion of plaintiff Pinlawn Cemetery preliminary injunction is denied as follows. Dr a I The controversy concerns two adjoining parcela of land m e d by plaintiff Pinelawn located in Farmingdale, New York, whic are adjacent to lands used by Pinelawn as a cemetery. By two instruments dated August 30, 1904 and November 1, 1905, 1 [* 2] the .It ) he els S road cars and locomotives, east of Glendale. By agreement executed in 1996, defendant New York & At1 ntic n or It appears that in 2003, Coastal began constructing a building at the site to "contain and protect" the /transload operation. The building itself straddles the two bubject parcels. Pinelawn has commenced an action to permanently en oin the construction and operation of the facility and has inter osed the instant motion for a preliminary injunction. ' In support of the motion, several arguments are posited Firstly, Pinelawn alleges that Coastal is construc:tingthe building to sell heavy building materials and equipment; to process and sell stone aggregate; and to transfer debris and hazardous waste materials. Pinelawn argues that t,hisusage violates the use restriction contained in the leas,es (i.e. farming), violates the Town Code of the Town of Babylon, and will have a negative impact upon its cemetery business l n proper Y. ad Secondly, Pinelawn argues that the 1904 leases have exp and that only one of them, the November 1904 lease, has successfully been renewed. Pinelawn acknowledges that it executed a letter "agreement,' dated October 17, 20,03, by whi 'concurs" with LIRR's exercise of its options to r,enewboth leases. However, Pinelawn argues that the renewal/did not o ' o less than three months prior to the expiration of the t nt granted" as provided therein, and therefore, the renewal of August lease was not timely. red h it cur rm he It is axiomatic that movant must establish three elemen s in order to demonstrate its entitlement to a preliminary injunc ion, 2 [* 3] I to wit, a likelihood of success on the merits of the action; irreparable harm to the movant absent the injunction; and a balancing of the equities in movant's favor (see, e.g. Aetna Insurance Co v Capasso, 75 NY2d 8 6 0 , 552 NYS2d 918 [19901). Moreover, movant must show "a clear right to such relief und the law and the undisputed facts as set forth in the moving I n c . , 26 papers'' (Carman v Congregacion D e Mita of New N o r AD2d 416, 416, 702 NYS2d 906 [2d Dept 20001). I I At bar, Pinelawn has failed, inter alia, to emonstrate likelihood of success on the merits. Pinelawn's onstruc the lease phrases "farm let" and "farm letten" as a rest of LIRR's use of the site to agriculture is witho t merit. Rather, the caselaw supports defendants' counter- I rgument th the phrase 'grant, devise and farm let" was the b iler plate 9 language of the day meant to denote a lease of property for term for any use as might be specified (see e.g. j t l a n t i R a i l r o a d Company v Johnson, 134 NY 3 7 5 [1892] [rail,roadl ; v Long I s l a n d R . Co. , 102 NY 601 [1886][railroad] see also, Darby v C a l l a g h a n , 16 NY 71 [1857]["the words 'demise le to farm let' are technical expression to constituTe a le Blacks Law Dictionary, 6thed. p606 [ " F a r m l e t . Technical in a lease creating a term for years"]). Pinelawd has su no legal authority to the contrary. d 7 ;i Pinelawn's further argument concerning the udtimeli LIRR's renewal of the August 1904 lease is also udpersuasive The letter agreement containing Pinelawn' s "concudrence" renewal refers unequivocally in a handwritten addendum to th August 1904 lease. If the doctrines of waiver or lestopp prevent Pinelawn from disavowing its consent, it i,slike equity would intervene to relieve LIRR of the consiequenc untimely notice to renew (see, e.g. T r i t t v Huffman & B 121 AD2d 531, 503 NYS2d 842 [2d Dept 19861). I As to Pinelawn's additional argument that the faci question violates the Code of the Town of Babylon,'it i that as the LIRR is a subsidiary of defendant Metropolitan Transportation Authority, municipal zoning authority ov site is superceded by the Public Authorities Law pi see, Law 51266 [8]) . I Finally, Pinelawn's additional assertion that it will sustain damage to its property and business as a r'esult of 3 I I [* 4] Coastal's activities on the property is speculative at best. Hence, Pinelawn has failed to establish that it will1 be irreparably damaged if injunctive relief is not grpnted. The motion is accordingly denied. This matter is set down for a 31st day of August, 2004, at 9:30am, in the court Griffing Avenue, Riverhead, R o o m 200. Pinelawn serve a copy of this order upon the calendar the 0 urt . P -- Dated: August 6, 2004 - Clerk only: Non-final Disposition 4

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