        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

563
CA 12-00624
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF NATIONAL FUEL GAS DISTRIBUTION
CORPORATION, PETITIONER-PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

CITY OF JAMESTOWN, RESPONDENT-DEFENDANT-APPELLANT.


BOND, SCHOENECK & KING, PLLC, BUFFALO (STEPHEN A. SHARKEY OF COUNSEL),
FOR RESPONDENT-DEFENDANT-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (JOHN G. SCHMIDT, JR., OF COUNSEL), FOR
PETITIONER-PLAINTIFF-RESPONDENT.


     Appeal, by permission of the Appellate Division of the Supreme
Court in the Fourth Judicial Department, from an order of the Supreme
Court, Erie County (Joseph R. Glownia, J.), entered January 23, 2012
in a CPLR article 78 proceeding and declaratory judgment action. The
order, among other things, denied the motion of respondent-defendant
to vacate the stay/preliminary injunction granted on September 17,
2010.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-plaintiff (petitioner) commenced this
hybrid CPLR article 78 proceeding and declaratory judgment action
against respondent-defendant, the City of Jamestown (City),
challenging the legality of section 175-3B of its Municipal Code
(Code) on various grounds. The challenged section of the Code charges
petitioner an annual fee of $26,000 to access its rights-of-way.
According to petitioner, the annual fee is unconstitutional because,
among other reasons, it bears no relation to the City’s costs and
instead constitutes an unlawful attempt to raise revenue. Although
the City answered the initial petition/complaint, it failed to answer
the amended petition/complaint, prompting petitioner to move for a
default judgment. Supreme Court denied the motion but, as a condition
of that denial, the court issued a preliminary injunction “temporarily
enjoining” the City from enforcing section 175-3B of the Code against
petitioner or from otherwise charging petitioner to access its rights-
of-way. The City did not appeal from that order, which was entered in
September 2010. Approximately 13 months later, in October 2011, the
City moved pursuant to CPLR 6314 to vacate the preliminary injunction,
contending that a recent amendment to section 175-3B gave petitioner
all the relief it requests and thus constitutes a change of
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                                                         CA 12-00624

circumstances that obviates the need for the preliminary injunction.
The court denied the motion, and the City appeals. We affirm.

     As a preliminary matter, we note that the City advances several
contentions that challenge the court’s authority to issue the
preliminary injunction in the first instance. The City contends, for
example, that petitioner failed to demonstrate irreparable harm and
that, because the court had denied petitioner’s request for a
preliminary injunction at the outset of the proceeding/action, that
decision was the law of the case that prohibited the court from later
granting the same relief. Because the City did not appeal from the
order issuing the preliminary injunction, however, the propriety of
the initial issuance of the preliminary injunction “is not before us”
(Thompson v 76 Corp., 54 AD3d 844, 845; see generally Cheng v Oxford
Health Plans, Inc., 84 AD3d 673, 675; Eades v Tadao Ogura, M.D., P.C.,
185 AD2d 266, 267). Rather, the issue before us is whether the court
properly refused to vacate the preliminary injunction based on the
amendment to the City’s Code.

     On that issue, and contrary to the City’s contention, the
amendment does not afford petitioner all the relief it seeks in the
amended petition/complaint. Although the amended Code affords
petitioner an option of paying a per-use access fee, petitioner does
not request that relief in its pleadings. The record makes clear that
petitioner did not seek permission to obtain a permit every time it
has to access the City’s rights-of-way; instead, petitioner requested
that the City be enjoined from charging it any fees “in excess of any
constitutionally permissible fees” for excavating within the City’s
rights-of-way. Indeed, as the City acknowledged in its response to an
interrogatory, it would be impractical and unduly costly for both
parties if petitioner applied for an individual permit each time it
seeks access to City property. We note that, if the City is correct
that the amended Code affords petitioner all the relief that it seeks,
there is no need to proceed further with this proceeding/action, and
yet the City has not sought dismissal on that ground. We thus
conclude that the City failed to establish the existence of
“ ‘compelling or changed circumstances that render continuation of the
injunction inequitable’ ” (Thompson, 54 AD3d at 846; see Board of
Trustees of Town of Huntington v W. Wilton Wood, Inc., 97 AD2d 781,
782-783, lv dismissed 61 NY2d 605, 904).




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
