Carroll v. Dicker
Supreme Court of the State of New York, Appellate Division, Second Department. June 13, 2018
Plaintiffs and defendants purchased neighboring properties, which were subject to an easement. Defendants’ property was dominant and was entitled to a clear view of the ocean from defendant’s kitchen/living area and deck. Plaintiff commenced action seeking (1) judgment declaring that easement is unenforceable and extinguished and that the defendants and subsequent owners of defendants’ property have no right, title, or interest to any portion of plaintiff’s property and (2) permanent injunction enjoining enforcement of easement. After commencing action, plaintiff moved for preliminary injunction. Supreme Court denied plaintiff’s permanent injunction, and set forth conditions for the defendant to follow for the easement, which improperly converted a preliminary injunction to summary judgment. Plaintiffs appeal. This Court reverses the order and denies plaintiffs’ motion for preliminary injunction for failure to establish their entitlement.