This proceeding was commenced by Order to Show Cause (Lynch, J.) dated March 26, 2013, and returnable April 30, 2013, to annul a March 13, 2013 Decision of the City of Albany Board of Zoning Appeals (BZA) interpreting the term "auditoria" under section 375-12 of the Zoning Ordinance. The Order included an interim request for an immediate stay of the BZA's determination, initially returnable March 29, 2013 at 11:00 a.m. At petitioner's request, the Court heard oral argument on the stay application at a hearing held on March 28, 2013. The background for this dispute is outlined in the Court's Decision and Order (Lynch, J.) issued on March 26, 2013 (Index No.1505-15 - hereinafter Armory 1). Notably, the Court struck petitioner's request for a temporary restraining order in the Order to Show Cause (Lynch, J.) issued on March 12, 2013 initiating Armory 1 (see CPLR 6513).

To begin, it should be recognized that the Armory is situate in a C-O District in which an "auditoria" is a principally permitted use. Notably, the Code does not include a definition of the term "Auditoria".

In the challenged March 13, 2013 decision, the BZA recognized that by decision dated May 8, 2003, the BZA concluded that the proposed use of the facility for sporting events and concerts fits within the definition of "Auditoria". The instant decision confronts the question of whether the current events/uses being held at the Armory fit within the definition of "Auditoria". As explained, in the submissions and at oral argument, the current events are routinely based on general admission without specific assigned seating, and include a designated dance area. The BZA has determined that the Auditoria "includes activities such as sporting events and concerts that involve actual fixed seating for the persons attending [and]...that use of the facility for a Rave Party', nightclub, dance club or other similar event is excluded..." (Exhibit "J" ). Petitioner has challenged this decision as both lacking in jurisdiction (see Armory 1 Decision and Order) and as arbitrary and capricious.

This Court may grant a stay of the enforcement of a determination pending its review pursuant to CPLR 7805.In this context, as with an application for a preliminary injunction, the movant "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC, 63 AD3d 1396, 1397 [2009] [cit. om.]; Melvin v. Union College, 195 AD2d 447, 447-449 [1993]; see generally Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7805 at 896). [*2]

It is settled law that the grant or denial of a request for a preliminary injunction, a provisional remedy designed for the narrow purpose of maintaining the status quo, is not an adjudication on the merits and will not be given res judicata effect" (Coinmach Corp. v. Fordham Hill Owners Corp., 3 AD3d 312, 314 [2004]).Accordingly, "the showing of a likelihood of success on the merits required before a preliminary injunction may be properly issued must not be equated with the showing of a certainty of success ***. It is enough if the moving party makes a prima facie showing of his right to relief; the actual proving of his case should be left to the full hearing on the merits" (Tucker v. Toia, 54 AD2d 322, 325-326 [1976] [cit.om.]; see also Bingham v. Struve, 184 AD2d 85, 88-89 (NY App. Div. 1st Dep't 1992) ["[a] judicial determination regarding likelihood of success on the merits does not,...amount to a predetermination of the issues]).

While the Court has already decided the jurisdiction issue in the City s favor in Armory 1, petitioner's contention that the BZA created an arbitrary distinction in limiting concerts to fixed seating events arguably is of merit - at least, for purposes of assessing its request for a stay. This is particularly so given that the Armory has historically been used as a general assembly.

Petitioner maintains it will be irreparably harmed absent a stay, not due to the loss of revenue from the four concerts scheduled in the next month or so, but to the damage to its reputation as a viable concert venue. This contention bears serious consideration. As to a balancing of the equities, the City simply refers to the importance of enforcing the code in the interest of public safety. Inexplicably, the City has yet to respond to a revised security plan submitted to City officials on March 5, 2013. At the same time, the petitioner continues to offer to address any security concerns the City raises with respect to the revised security plan. In all frankness, it is difficult to discern the security difference arising from a concert where patrons are assigned fixed seating, compared to a general assembly concert. The short answer here is that the BZA's March 13, 2013 Decision is not based on a security concern.

Given the above, the Court hereby grants petitioner's application for a stay pursuant to CPLR 7805 precluding respondents from enforcing the BZA's Decision and all underlying orders and notices pending a determination of this proceeding.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for petitioners. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. [*3]

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:March, 2013

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Order to Show Cause (Lynch, J.) dated March 26, 2013, with Verified Petition

dated March 26, 2013, and Exhibits "A" - "L"; Affirmation of Gregory J. Teresi

Esq., dated March 25, 2013 with Exhibits "1"-"4"; Affidavit of Michael Corts

dated March 27, 2013; Supplemental Affirmation of Gregory Teresi, Esq. dated

March 27, 2013, with Exhibit "A"; and

2.Affirmation in Opposition of Eric Sugar, Esq. dated March 28, 2013, with

Exhibits "A" - "E".