Defendant owner owns of three contiguous parcels of real property in the Town of Brookhaven, the bulk of which is zoned A–1 Residential with a small portion within a J–2 Business Zoning District.  Defendant used the property for a composting and mulch-processing operation, and the Town commenced an action to permanently enjoin this use. The Town then moved for a preliminary injunction, contending Defendant’s use was unlawful under the zoning ordinance. In opposition, Defendant argues the operation constituted a lawful nonconforming, preexisting use of the subject premises. The Supreme Court denied the Town’s motion, and the Town appealed.

On appeal, the Appellate Division, Second Department noted it was improper for the lower court to deny the Town's motion based on collaterally estoppel due to the denial of a motion for that relief in a prior, related action. This was because in opposition to the Town's motion, Defendant did not make that argument or include the prior order and motion papers as exhibits to their opposition. Nevertheless, the Court found that while the Town ultimately might be successful, it had failed to demonstrate that the balance of the equities weighed in its favor. Here, the harm to the defendants if the injunction was granted would prove substantially burdensome and likely irreversible, the harm to the Town should the injunction be denied was more remote and uncertain. Furthermore, the Court found that granting the injunction would disturb the status quo, rather than maintain it. Accordingly, the Court held that the Town's motion for a preliminary injunction should have been denied on the merits.

The case was Town of Brookhaven v MMCCAS Holdings, Inc., 2016 WL 1230607 (App. Div. 2d Dept. March 30, 2016).