State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 518307 

________________________________

STS STEEL, INC.,

Respondent,

v MEMORANDUM AND ORDER

MAXON ALCO HOLDINGS, LLC,

Appellant.

________________________________

Calendar Date: October 15, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

__________

Gilberti Stinziano Heintz & Smith, PC, Syracuse (Kevin G.

Roe of counsel), for appellant.

Hacker Murphy, LLP, Latham (James E. Hacker of counsel),

for respondent.

__________

Rose, J.

Appeal from an order of the Supreme Court (Reilly Jr., J.),

entered April 4, 2013 in Schenectady County, which granted

plaintiff's motion for a preliminary injunction.

Plaintiff owns an industrial building with deeded easements

located within defendant's industrial park in the City of

Schenectady, Schenectady County. Plaintiff also leases from

defendant an adjoining parcel with a general right of ingress and

egress. Plaintiff commenced this action seeking a declaration

that its leased right-of-way entitles it to a general right of

passage of commercial vehicles in connection with its heavy steel

fabrication business operated on the premises. Plaintiff also

seeks a permanent injunction prohibiting defendant from

interfering with plaintiff's use of the general right-of-way and
-2- 518307 

compelling defendant to remove certain obstructions to its right

of passage. When plaintiff moved for a preliminary injunction,

Supreme Court granted the motion. Defendant now appeals and we

affirm.

In order to establish entitlement to a preliminary

injunction, the moving party must show that it has a likelihood

of success on the merits, it will suffer irreparable harm if the

relief is not granted and the equities weigh in its favor (see

CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d

839, 840 [2005]; Norton v Dubrey, 116 AD3d 1215, 1215 [2014];

Karabatos v Hagopian, 39 AD3d 930, 931 [2007]). As the decision

to grant or deny a preliminary injunction is within the

discretion of Supreme Court, our review is limited to whether the

court exceeded or abused its discretion as a matter of law (see

Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d at

840; Norton v Dubrey, 116 AD3d at 1215-1216; Confidential

Brokerage Servs., Inc. v Confidential Planning Corp., 85 AD3d

1268, 1269 [2011]).

Supreme Court did not abuse its discretion by concluding

that defendant was unlikely to succeed on its claim that the

metes and bounds easement conveyed to plaintiff when it purchased

the building from defendant's predecessor limits and restricts

the general right of ingress and egress granted in the lease that

was entered into at the same time with that same predecessor. 

The general right-of-way in the lease is an easement appurtenant

that "may be extinguished only by abandonment, conveyance,

condemnation or adverse possession" (Niceforo v Haeussler, 276

AD2d 949, 950 [2000]; see Will v Gates, 89 NY2d 778, 783

[1997]; Gerbig v Zumpano, 7 NY2d 327, 330 [1960]). Inasmuch as

there is no evidence that the general right-of-way was abandoned,

conveyed, condemned or adversely possessed, it continues to

exist, notwithstanding any easement provided for in connection

with the separate conveyance of the building to plaintiff

(see Navin v Mosquera, 26 AD3d 556, 557-558 [2006]).

Given that plaintiff has a general right of ingress and

egress, defendant may only alter the passageway "so long as

[plaintiff's] right of passage is not impaired" (Lewis v Young,

92 NY2d 443, 449-450 [1998]; accord Thibodeau v Martin, 119 AD3d
-3- 518307 

1015, 1016 [2014]; Sambrook v Sierocki, 53 AD3d 817, 818 [2008]). 

Plaintiff presented photographs and an affidavit from its

president establishing that defendant's placement of steel poles

along the easement's boundaries and a locked gate at one of the

entrances restricted plaintiff's ingress and egress, thereby

showing a likelihood of success on the merits of its action (see

e.g. MacKinnon v Croyle, 72 AD3d 1356, 1358 [2010]; Marek v

Woodcock, 277 AD2d 864, 866 [2000], lv dismissed 96 NY2d 792

[2001]). Defendant's argument that the locked gate is necessary

to comply with lawful orders issued by the City to protect its

underground sewer pipeline in the vicinity is belied by the

record, which reflects that the City has approved a process for

permitting plaintiff's use of a steel land bridge that would

allow heavy trucks to pass over the City's sewer line without

further damage.1

Given the absence of any argument on appeal that plaintiff

has not established that it would be irreparably harmed in the

absence of injunctive relief, and the lack of any apparent

prejudice to defendant, we agree with Supreme Court that the

equities balance in plaintiff's favor (see Green Harbour

Homeowners' Assn., Inc. v Ermiger, 67 AD3d 1116, 1117 [2009];

Cooperstown Capital, LLC v Patton, 60 AD3d 1251, 1253 [2009]; Lew

Beach Co. v Carlson, 57 AD3d 1153, 1155 [2008]). 

Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.

1 Further, we note that plaintiff purchased insurance

against any further risk of damage to the sewer line, and the

parties' lease agreement contains an indemnification clause.
-4- 518307 

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court