                           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
