State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 520351 

________________________________

DANIEL J. WALDRON et al.,

Respondents,

v

MEMORANDUM AND ORDER

PATRICIA HOFFMAN,

Appellant.

________________________________

Calendar Date: June 3, 2015

Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

__________

Law Offices of Stephen A. Johnston, Plattsburgh (Stephen A.

Johnston of counsel), for appellant.

Law Office of Andrew D. Brockway, Plattsburgh (Andrew D.

Brockway of counsel), for respondents.

__________

Rose, J.

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

entered July 3, 2014 in Clinton County, which granted plaintiffs'

motion for a preliminary injunction.

The parties own adjoining parcels of real property, title

to which was once unified, located on a downtown commercial block

in the City of Plattsburgh, Clinton County. During demolition of

the building located on defendant's property, her contractor

broke an active sewer pipe that ran from plaintiffs' building

into the basement of defendant's building where it connected to

defendant's sewer pipe. Defendant's contractor reconnected

plaintiffs' pipe, but defendant informed plaintiffs that, as part

of her construction project, their pipe would be capped and they

would no longer be permitted to route their sewer line through
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defendant's property. Plaintiffs commenced this action seeking,

among other things, a declaration that they have a prescriptive

or implied easement for their sewer pipe on defendant's property 

and, pending resolution of these issues, they moved for a

preliminary injunction. Supreme Court granted the motion and

defendant appeals.1 

"The purpose of a preliminary injunction is to maintain the

status quo and prevent the dissipation of property that could

render a judgment ineffectual" (Ruiz v Meloney, 26 AD3d 485, 486

[2006] [citation omitted]; see CPLR 6301). "The decision to

grant or deny a request for a preliminary injunction [is]

committed to the sound discretion of the trial court, [and] our

review is limited to whether Supreme Court has either exceeded or

abused its discretion as a matter of law" (Schulz v State of N.Y.

Exec., 108 AD3d 856, 857 [2013], lv dismissed 21 NY3d 1051 [2013]

[internal quotation marks and citation omitted]). 

Although plaintiffs' sewer pipe was clearly visible in

defendant's basement, defendant contends that plaintiffs cannot

establish an easement by prescription because the function of the

pipe was not obvious. However, the photographs and evidence in

the record make clear that the pipe entered defendant's building

from the direction of plaintiffs' adjacent building and had been

there for decades prior to the commencement of the action. 

Without reaching a conclusion that plaintiffs will prevail by

establishing an easement by prescription or implication, there is

enough evidence in the record to demonstrate a likelihood of

success on the merits (see generally Cooperstown Capital, LLC v

Patton, 60 AD3d 1251, 1252-1253 [2009]; Karabatos v Hagopian, 39

AD3d 930, 931 [2007]). 

Certainly, any disruption to the status quo would render

plaintiffs' request for an easement ineffectual, and they have

made a plausible claim that if defendant were to unilaterally cut

off their residential and commercial tenants' access to the

sewer, the potential environmental impact, along with the damage

1 At oral argument, defendant's counsel advised that

defendant's construction project has since been completed.
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to their reputations and the goodwill they have as landlords,

would not be ascertainable, precluding them from recovering full

relief (see Clayton v Whitton, 233 AD2d 828, 830 [1996]; Pyramid

Ctrs. & Co. v Sarwill Assoc., 186 AD2d 968, 969 [1992]; Picotte

Realty v Gallery of Homes, 66 AD2d 978, 979 [1978]). Weighing

the harm to plaintiffs against defendant's aversion to having her

neighbor's sewage running through a pipe in the basement of her

building, we are unpersuaded that Supreme Court abused its

discretion in concluding that plaintiffs established a balancing

of the equities in their favor (see Confidential Brokerage

Servs., Inc. v Confidential Planning Corp., 85 AD3d 1268, 1269-

1270 [2011]; Pyramid Ctrs. & Co. v Sarwill Assoc., 186 AD2d at

969). 

Peters, P.J., McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court