Supreme Court, Suffolk County, October 30, 2023

Daniel Logan Millman, Jericho, and Avrutine & Associates, PLLC, Merrick, for Cold Spring Country Club, Inc., defendant.

Herrick Feinstein LLP, New York City, and Farrell Fritz, P.C., Hauppauge, for Yehoshua Lieb Fruchthandler and others, defendants.

Jaspan Schlesinger LLP, Garden City, for plaintiffs.

The case at bar is an action sounding in breach of contract and tortious interference with prospective economic advantage. Plaintiffs seek monetary damages in addition to a declaratory judgment. Specifically, Kahn seeks

"a declaration as to its easement over (a) East Gate Drive and (b) those portions of property owned by the Club which abut (i) the westerly side of East Gate Drive, and (ii) the easterly side of East Gate Drive, for the purposes of widening East Gate Drive as may be required by the municipal authorities and thereafter for the purposes of ingress, egress, and installation and maintenance of utilities." (NY St Cts Elec Filing [NYSCEF] Doc No. 1.)

The defendants Yehoshua Lieb Fruchthandler, Oheka Development LLC, and FBE Limited entered a general denial and listed certain affirmative defenses. (NYSCEF Doc No. 38.)

The defendant Cold Spring Country Club, Inc. (hereinafter referred to as CSCC) asserts a counterclaim for a declaratory judgment, pursuant to RPAPL article 15, that CSCC be awarded sole and complete possession of the realty at issue and that the court find plaintiff Kahn "has no legal right or authority to utilize defendant's property . . . other than for limited vehicular access for deliveries only." (NYSCEF Doc No. 43.)

The factual allegations were set forth in the court's decision of August 23, 2022. For the sake of completeness (the court apologizes for the redundancy) they will be repeated.

In 2021 the plaintiffs entered into a contract to sell a 4.19-acre parcel of land to the defendant, Oheka Development LLC. Oheka Development has its main office at the same location as{**82 Misc 3d at 496} defendant FBE Limited LLC (hereinafter referred to as FBE). Defendant Yehoshua Lieb Fruchthandler is the principal and authorized signatory for Oheka Development. The contract contains section 23, which is named "Confidentiality and Press Releases." It provides that "Purchaser's obligations under this Section 23.01 shall survive the termination of this Contract." The specific language relied upon by plaintiffs is as follows:

"The items and their contents made available to Purchaser pursuant to or in connection with this Contract . . . are sometimes referred to herein as the 'Confidential Information' . . . Without Seller's prior written consent, Purchaser: (a) [*2]shall not divulge to any third party (other than its advisors, consultants, attorneys, accountants, partners, prospective investors, members and lenders) any of the Confidential Information . . . (b) shall ensure that the Confidential Information is disclosed only to such of Purchaser's officers, directors, employees, consultants, attorneys, accountants, engineers, architects, investors and lenders, as have actual need for the Confidential Information; (c) shall act diligently to prevent any further disclosure of the Confidential Information; and (d) shall, if the Closing Date does not occur, promptly return to Seller or destroy (without keeping copies) all Confidential Information delivered to Purchaser. Purchaser's obligations under this Section 23.01 shall survive the termination of this Contract."

The purpose of the parties' agreement was to construct a luxury condominium complex. The contract was subject to a condition precedent, namely: the purchase of an additional 13.74 acres of property (hereinafter referred to as the Club Land) from the defendant CSCC on or before March 20, 2021 (contract § 3). This event, however, did not occur. The plaintiffs then terminated the contract and located another purchaser.

The plaintiffs allege that the defendants, in retaliation for the plaintiffs having terminated the contract, used confidential information learned while they were in contract with the plaintiffs to purchase the Club Land. The confidential information consists of "all aspects of the development plan . . . and especially the fact that the Club property was to comprise a significant portion of the new development." The plaintiffs state that they did not give permission for the defendants to use this information. The plaintiffs further allege that the defendants{**82 Misc 3d at 497} are utilizing the confidential information in an attempt to buy the plaintiffs' mortgage from its lender, disrupt the plaintiffs' business, and foreclose against Oheka Castle.

The realty purportedly owned by CSCC includes "The Spur." This is the "sole access between the Kahn property and East Gate Drive." (NYSCEF Doc No. 81, aff of Mr. Melius at 6 ¶ 23.) Plaintiffs claim an easement to traverse East Gate Drive. The plaintiffs allege that because of a stone arch at the West Gate entrance, East Gate Drive is the sole tradesman's access to Oheka Castle. The plaintiffs aver that if the defendants are successful in purchasing the Club Land, Oheka Castle will be prevented from utilizing the easement and will be unable to conduct business. The plaintiffs also contend that they have secured development rights from the Town of Huntington necessary to build the proposed condominiums. The granting of these development rights by the municipality is being challenged by the defendant CSCC in a separate CPLR article 78 proceeding under index No. 609827/2023.

Moreover, plaintiffs allege that in the event FBE purchases the Club Land, the value of plaintiffs' development rights will be diminished, and that the defendants have impermissibly interfered with the plaintiffs' ability to sell the development rights to any other buyer.

In the court's decision of August 23, 2022, the defendants' motion to dismiss the [*3]complaint was denied save to the limited extent of striking the first and second causes of action (at 8 ¶ 1). The third and fourth causes of action were allowed to proceed.

The defendant CSCC now seeks a preliminary injunction against plaintiffs. The proposed relief would enjoin the plaintiffs: (1) "from utilizing any portion of that certain property owned by defendant Cold Spring Country Club Inc described in Exhibit 'A' to CSCC's verified answer to amended complaint with counterclaim . . . for vehicular or pedestrian access to Kahn's property with the exception of vehicles making deliveries," and (2) "from proceeding with any additional approval processes from the Town of Huntington and/or commencing construction, demolition and/or any other related work in connection with a proposed condominium complex."

In addition to affidavits of the parties' principals, counsel have submitted documentary exhibits (referred to here by their NYSCEF Document numbers) to assist the court in its review.{**82 Misc 3d at 498}

The defendants/movants have offered: NYSCEF Doc No. 58, affidavit of Douglas Solow; NYSCEF Doc No. 58, Huntington Town Board resolution; NYSCEF Doc No. 60, the amended complaint; NYSCEF Doc No. 61, CSCC answer/counterclaim; NYSCEF Doc No. 62, answer of FBE defendants; NYSCEF Doc No. 63, site plan; NYSCEF Doc No. 64, property map; NYSCEF Doc No. 65, deeds to the "Spur"; NYSCEF Doc No. 66, photographs of the property in question; and NYSCEF Doc No. 86, title policy for the "Spur."

In response, the plaintiffs have tendered: NYSCEF Doc No. 70, a letter of intent concerning a loan; NYSCEF Doc No. 72, a topographical survey; NYSCEF Doc No. 73, a property map based upon surveys conducted on December 23, 1967, and May 20, 1971; NYSCEF Doc No. 74, a copy of Town of Huntington Local Law No. 25-1997; NYSCEF Doc No. 75, declaration of covenants and restrictions; NYSCEF Doc No. 76, a copy of a Town of Huntington intra-office memorandum dated May 9, 1997; NYSCEF Doc No. 77, indenture made by Realty Associates, Inc. to Rolling Hills Realty Co., Inc.; NYSCEF Doc No. 78, letter dated October 11, 2022; and NYSCEF Doc No. 79, letter dated November 22, 2022.

Prior to its analysis, the court would like to extend its gratitude to Messrs. Avrutine and Armentano for the defendants as well as Mr. Schlesinger, and Mses. Gerson, Freeman, and Perna-Plank for plaintiffs. Their thoughtful prose and exceptionally well researched briefs honored the court.

As stated in the case Merling v Ash Dev., LLC (198 AD3d 743, 745 [2d Dept 2021]):

"The party seeking a preliminary injunction must demonstrate (1) a likelihood of success on the merits, (2) danger of irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of the injunction (see 159 Smith, LLC v Boreum Hill Prop. Holdings, LLC, 191 AD3d 741, 742 [2021]; Arcamone-Makinano v Britton Prop., Inc., 83 [*4]AD3d 623, 624 [2011]). The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits (159 Smith, LLC v Boreum Hill Prop. Holdings, LLC, 191 AD3d at 742 [internal quotation marks omitted]; see Arcamone-Makinano v Britton Prop., Inc., 83 AD3d at 624)" (internal quotation marks omitted).

{**82 Misc 3d at 499}Given the drastic nature of a motion under CPLR 6301, the burden of proof in such an application is clear and convincing evidence (EdCia Corp. v McCormack, 44 AD3d 991, 993 [2d Dept 2007]).

As discussed below, the defendants have failed to establish their entitlement to the relief sought.

The court's discussion is divided into two parts. Initially, whether plaintiffs should be preliminarily restrained from utilizing the Club Land and/or Spur with the exception of commercial vehicles making deliveries. And secondly, whether the plaintiffs should be enjoined from making application to the Town for expanded use of their property. The reason for the dichotomy of analysis is that there is a fundamental difference between the two aspects of the relief sought by movants. Restraining the physical actions of one fee holder vis-à-vis their neighbor is entirely another matter than barring that fee holder from interacting with local government as it seeks to improve the use of its own property.

The first of the tripartite requirements for a preliminary injunction is the likelihood of success on the merits.

Mr. Avrutine argues that this element is satisfied by a "prima facie showing of a reasonable probability of success." (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 AD3d 430, 431 [1st Dept 2016].) In addition to Barbes Rest. counsel presents the authority found in Incorporated Vil. of Babylon v Anthony's Water Cafe (137 AD2d 791, 792 [2d Dept 1988]), International Union of Operating Engrs., Local No. 463 v City of Niagara Falls (191 Misc 2d 375, 379 [Sup Ct, Niagara County 2002]), and Weissman v Kubasek (112 AD2d 1086, 1086 [2d Dept 1985]).

It is beyond cavil that certainty is not imposed as a burden to obtain injunctive relief. This interim remedy, while extraordinary, can be granted even in the face of disputed facts. (19 Patchen, LLC v Rodriguez, 153 AD3d 1382, 1383 [2d Dept 2017].) It is always incumbent on the movant, however, to clearly demonstrate that it is likely to prevail in the lawsuit. (Id. at 1383, citing Joseph v Joseph, 108 AD3d 597, 598 [2d Dept 2013].)

The merits of the declaratory judgment claim turn on the question of whether Kahn has an easement to use the Spur for its proposed condominium development; and if so, to what extent does it burden the defendant CSCC's property.{**82 Misc 3d at 500}

CSCC has submitted five deeds, recorded on May 8, 2009 (the deeds), purportedly establishing that CSCC acquired the property comprising the Spur from descendants of the original owners. Each of the deeds states that "the premises conveyed herein is being and intended to be the same premises as was conveyed by Realty Associates, Inc." by deed dated November 9, 1951, and identifies those prior deeds by [*5]liber and page reference. Although the plaintiffs argue that these documents are not definitive as applying to the Spur, we must bring plaintiffs' attention to the lis pendens filed in this action (NYSCEF Doc No. 3) which appears to reflect the same location as the deeds submitted by their adversaries.

In response the plaintiffs claim that an easement exists for Kahn's benefit over the Spur. They refer the court to the exhibits attached to their moving and responding papers, specifically: the topographical map and map prepared by Nelson & Pope (NYSCEF Doc Nos. 64, 72, 73). These documents contain annotations including "Electric Easement Per Liber 6402, Page 329." (Electric Easement and R.O.W.)

In the face of defendants' evidence of ownership witnessed by deed, the plaintiffs contend that the evidence shows, or will show, that an easement was created by implication or prescription, or that the realty in question is actually not owned by the defendant CSCC.

Concerning the plaintiffs' contention that the locus in quo may be publicly owned, the defendants' reply states, "Having changed the theory of its case, if Kahn now claims that CSCC does not own the Spur, its cause of action against CSCC should be deemed to have been abandoned." (NYSCEF Doc No. 85 at 2.)

The court disagrees. CPLR 3014 permits causes of action to be stated hypothetically or alternatively. It must be noted that the plaintiffs have not asserted such a claim in their fourth cause of action. Plaintiffs are not precluded from making such an argument within the confines of this motion, however, because it does not appear at this juncture to be governed by the election of remedies doctrine nor judicial estoppel (Fletcher v Rodriguez, 47 Misc 3d 582, 585-587 [Sup Ct, Queens County 2015], citing Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435 [2d Dept 1995]).

Some theories of recovery are best left as hypotheticals. The court must also remind the plaintiffs that an argument claiming non-ownership on the part of CSCC does seem contradictory{**82 Misc 3d at 501} to their own prior representations before the court. The question of CSCC's status as the fee holder (albeit of a servient estate) can be found in references to: the two verified complaints, the original contract with the defendant FBE, and Mr. Melius's affidavit. (NYSCEF Doc No. 32.)

Plaintiffs' contention that Kahn possesses an easement by implication and or prescription will now be addressed.

As stated in the recent case of Bolognese v Bantis (215 AD3d 616, 619-620 [2d Dept 2023]), "An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period, which is 10 years" (citation omitted). In support of their position that they enjoy a likelihood of success in their claim, plaintiffs (NYSCEF Doc No. 80) draw the court's attention to the cases of Di Leo v Pecksto Holding Corp. (304 NY 505, 512 [1952]), Hryckowian v Pulaski (249 AD2d 511, 512 [2d Dept 1998]), Frumkin [*6]v Chemtop (251 AD2d 449 [2d Dept 1998]), and J.C. Tarr, Q.P.R.T. v Delsener (19 AD3d 548, 550 [2d Dept 2005]).

We thank counsel for citing to Di Leo v Pecksto because it was authored by Judge Fuld, of happy memory. With his customary eloquence, he thoroughly detailed the law pertaining to prescriptive easements, beginning with statutory antecedents and finally demonstrating that the legislature (save for lessening the 20-year time period) left the common-law elements untouched (id. at 511, citing 2 Hilliard, Real Property at 53-55 [1839]). The facts in Di Leo are distinguishable from the case at bar. The successful litigant, Mr. Di Leo,

"alone maintained the right of way; it was he who straightened and rolled the path, kept it free of rock and other debris, laid stone over the driveway and filled in ruts and holes. No owner of any other land contributed in any way, physically or financially, to its maintenance or repair" (id. at 509).

The court considers the case of J.C. Tarr, Q.P.R.T. v Delsener (at 550) as actually arguing the defendant's cause.

The J.C. Tarr Court held that once an easement had been demonstrated by sufficient proof, "the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive" (id. at 550, citing Frumkin v Chemtop, and Hryckowian v Pulaski).

In addition to the affidavit from Mr. Melius, the plaintiffs have submitted other evidence that the East Gate Drive was{**82 Misc 3d at 502} used for residential access to Oheka Castle (testimony of Gail Snider, Town Bd tr at 63). J.C. Tarr also reiterated that it was the burden of the party claiming the easement to prove same by clear and convincing evidence (id. at 550).

Additionally, a prescriptive easement cannot be enlarged beyond the exercised use which gave rise to the right enjoyed (Patel v Garden Homes Mgt. Corp., 156 AD3d 807, 809 [2d Dept 2017]). Assuming that a prescriptive easement was proved, it appears that the proposed use for the condominium project would exceed the right for commercial vehicle ingress/egress.

An easement by implication requires the following: "(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained" (Bonadio v Bonadio, 200 AD3d 747, 749 [2d Dept 2021], citing West End Props. Assn. of Camp Mineola, Inc. v Anderson, 32 AD3d 928, 929 [2d Dept 2006], quoting Abbott v Herring, 97 AD2d 870, 870 [3d Dept 1983], affd 62 NY2d 1028 [1984]; see Mau v Schusler, 124 AD3d 1292, 1293 [4th Dept 2015]; Freeman v Walther, 110 AD3d 1312, 1316 [3d Dept 2013]).

A fair reading of the documentary exhibits shows this issue is factually disputed. As stated in the case of Radiology Assoc. of Poughkeepsie, PLLC v Drocea (87 AD3d [*7]1121, 1124 [2d Dept 2011]):

"While issues of fact alone will not justify denial of a motion for a preliminary injunction (see CPLR 6312 [c]), these issues subvert the plaintiff's likelihood of success on the merits in this case to such a degree that it cannot be said that the plaintiff established a clear right to relief (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612, 613 [2008]; Milbrandt & Co. v Griffin, 1 AD3d 327, 328 [2003])." (Id. at 1124.)

Once again, the record does not support the plaintiffs' claims concerning the easement as opposed to the defendants' averments at this juncture. Accordingly, the facts relating the likelihood of success on the merits of the declaratory judgment claim and counterclaim favor the defense.{**82 Misc 3d at 503}

The moving defendants contend that what they consider expanded use of the easement over the Spur will cause irreparable harm.

The court must determine if monetary damages will assuage the defendants if they ultimately prevail in the action. Such a finding would bar injunctive relief (Mar v Liquid Mgt. Partners, LLC, 62 AD3d 762, 763 [2d Dept 2009], citing Dana Distribs., Inc. v Crown Imports, LLC, 48 AD3d 613, 613-614 [2d Dept 2008], 1659 Ralph Ave. Laundromat Corp. v Ben David Enters., 307 AD2d 288, 288-289 [2d Dept 2003], and Price Paper & Twine Co. v Miller, 182 AD2d 748, 750 [2d Dept 1992]). In the controversy before this court, both parties are seeking equitable relief which does not lend itself to being reduced to a monetary award. We will now examine if the defendants have met their burden of showing irreparable harm.

It is asserted that the plaintiffs have obtained approval from the Town of Huntington to proceed with the condominium development. This approbation, it is argued, will necessitate significant construction and residential traffic over CSCC's property (NYSCEF Doc No. 58, aff of Douglas Solow; NYSCEF Doc No. 55, affirmation of Mr. Avrutine).

As stated by defense counsel:

"The only proposed vehicular access to the Proposed Condominium is by way of the alleged 'easement' through, over and across the Spur. The Proposed condominium—as proposed and approved—requires that Plaintiffs be granted full and unfettered use of the Spur, the legality of which is at the heart of [the] dispute between Plaintiffs and CSCC in this lawsuit." (NYSCEF Doc No. 55 at 20 ¶ 71.)

Defendants argue that "[t]he deprivation of the right to use and enjoy property constitutes irreparable harm." (NYSCEF Doc No. 55, affirmation of Mr. Avrutine at 19 ¶ 67.) In support they rely on the holdings in Biles v Whisher (160 AD3d 1159, 1161 [3d Dept 2018]), Triple F Club, Inc. v Gibney (77 Misc 3d 1229[A], 2023 NY Slip Op 50064[U], *4 [Sup Ct, Warren County 2023]), and Villella v Logan (2022 NY Slip Op 30500[U] [Sup Ct, Putnam County 2022]).

In Biles, the party successfully seeking the injunction showed that the owner of the servient estate had blocked access to the easement with boulders and that the only other access point was "not a safe route." (Id. at 1161.)

The court in Triple F Club, Inc. also granted a preliminary injunction. Interestingly, the facts also involved landowners{**82 Misc 3d at 504} who placed boulders to block ingress/egress for an easement (Triple F Club, Inc., 2023 NY Slip Op 50064[U], *1).

What distinguishes this authority is that in the matter at hand there has been no showing that the plaintiffs are interfering with the defendants' enjoyment of the locus in quo at the present time.

On the question of irreparable harm, the plaintiffs contend, inter alia,

"CSCC fails to provide any evidence that Kahn is currently using the Spur in a 'prohibited' fashion or will do so in the near future. The alleged harm is purely speculative. Moreover, CSCC's desire to prevent the future use of the Spur as a primary access point to a 95-unit condominium complex which would not be built and occupied for several years, does not entitle it to an injunction now" (NYSCEF Doc No. 80, plaintiffs' mem at 8).

In support they cite to the cases of Norton v Dubrey (116 AD3d 1215 [3d Dept 2014]), Sardino v Scholet Family Trust (192 AD3d 1433 [3d Dept 2021]), and County of Suffolk v Givens (106 AD3d 943 [2d Dept 2013]).

In Sardino, the Appellate Court upheld the granting of a preliminary injunction on the basis of the defendants having "obtained a [construction] permit from the Adirondack Park Agency" and were about to build a gate blocking egress and forcing the party claiming the easement to access their property via water. (Id. at 1434.)

The court acknowledges that a "threat of the destruction of . . . property constitutes irreparable harm" (Randisi v Mira Gardens, 272 AD2d 387, 388 [2d Dept 2000]). Walsh v St. Mary's Church (248 AD2d 792, 794 [3d Dept 1998]), relied upon by the Randisi Court, was an adverse possession claim centering on a cemetery. In upholding a preliminary injunction, the Court stated "the threat of removal of several large trees and the remains of family pets within the disputed property constitutes irreparable harm." (Walsh at 794.) Cases to similar effect include Wiederspiel v Bernholz (163 AD2d 774, 775 [3d Dept 1990]), which held that the plaintiff had proved that the defendants had "removed large trees from the land" and intended to continue such conduct, and Burmax Co. v B & S Indus. (135 AD2d 599, 600 [2d Dept 1987]), wherein defendants had already entered into an agreement to transfer ownership of a trademark and lacked authority to do so.{**82 Misc 3d at 505}

By contrast, in County of Suffolk v Givens (106 AD3d 943 [2d Dept 2013]) the granting of injunctive relief barring the rental of the subject premises by the lower court was reversed. The Appellate Court held that the movant "failed to show that this potential harm was imminent and not remote or speculative" (id. at 944, citing [*9]Rowland v Dushin, 82 AD3d 738, 739 [2d Dept 2011]; Trump on the Ocean, LLC v Ash, 81 AD3d 713, 716 [2d Dept 2011]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739 [2d Dept 2010]; Golden v Steam Heat, 216 AD2d 440, 442 [2d Dept 1995]).

The court notes the future tense of defendant CSCC's allegations of harm. There is no claim that vehicular traffic has changed in anticipation of the Town's ultimate, hoped for, imprimatur.

Based on the authority discussed above, the current actions of the plaintiffs do not demonstrate imminent danger of irreparable harm.

The argument of irreparable harm based on plaintiffs' seeking approval for their construction process also fails to provide succor.

Defendants posit

"CSCC's opportunity to enjoin the unlawful use of its property could deteriorate as the approval process proceeds, culminating with the issuance of building permits, since the equities in favor of such relief will be impacted by additional costs incurred, obligations arising from binding construction contracts and the prospect of having to demolish and/or reverse any construction that has taken place to that point." (Solow aff at 8 ¶ 38; NYSCEF Doc No. 55, Mr. Avrutine's affirmation at 19.)

As pointed out by the plaintiffs, the approval process is far from complete. The current Town resolution is conditioned on a future event (i.e. obtaining rights over the Spur) and building permits have not been issued.

The terms "imminent danger of irreparable harm," by the common understanding of their meaning, connote urgency (see Matter of 35 N.Y. City Police Officers v City of New York, 34 AD3d 392, 394 [1st Dept 2006]). Given the current speculative status of the condominium project, there is no urgent necessity for the court's intervention to safeguard defendants' property interests at this time. In short, defendants have failed to adequately prove "nonspeculative harm" (Rowland v Dushin, 82 AD3d 738, 739 [2d Dept 2011]).{**82 Misc 3d at 506}

We turn to the question of whether a balancing of the equities can be resolved in defendants' favor.

This calls upon the court to decide whether the irreparable harm that the defendants would suffer in the absence of an injunction "substantially outweighs the injury that the injunctive relief would cause to the [plaintiffs]" (Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223, 1225-1226 [3d Dept 2017], citing Parry v Murphy, 79 AD3d 713, 715 [2d Dept 2010]; see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021, 1022 [3d Dept 1979], appeal dismissed 48 NY2d 654 [1979]).

Defendants rely, inter alia, on the holding in Lombard v Station Sq. Inn Apts. Corp. (94 AD3d 717, 721 [2d Dept 2012]) to support their [*10]position that they have proved a favorable balancing of the equities. The court disagrees and finds that Lombard assists the plaintiffs on this issue. The plaintiff in Lombard failed to prevail on this point because he was only exposed to "the potential loss of his investment, as opposed to the loss of his home or a unique piece of property" in the absence of injunctive relief. (Id. at 721-722, citing Klein, Wagner & Morris v Lawrence A. Klein, P.C., 186 AD2d 631 [2d Dept 1992]; McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165 [2d Dept 1986]; Poling Transp. Corp. v A & P Tanker Corp., 84 AD2d 796 [2d Dept 1981].)

"Here, the indisputable fact that CSCC waited approximately two months after the Town approved Kahn's application before it commenced the Hybrid Proceeding and filed the instant Motion cuts against any argument that CSCC will suffer imminent, non-speculative, irreparable harm. Instead, the delayed reaction of CSCC now jeopardizes Kahn's ability to attract investors and secure financing. As detailed below, Kahn has received a nonbinding letter of intent from a prospective lender, which would enable Kahn to advance the Project and continue its longstanding ownership of the Kahn Property if certain requirements are met." (NYSCEF Doc No. 80, plaintiffs' mem of law at 16.)

As discussed above, this court has found that the defendants have failed to demonstrate a danger of irreparable injury at this time. The nuanced difference between irreparable harm and balancing of the equities is that the former focuses on an individual litigant as well as the urgency of the moment. The{**82 Misc 3d at 507} "balancing" imposed on the court is not so constrained by time and allows us to look at the prospect of the ultimate consequences of granting or denying a preliminary injunction.

The contrast between the plaintiffs and defendants is stark when viewed in this light. The failure to grant the instant motion would not affect the status quo of the defendant CSCC's fee hold. As noted by plaintiffs' counsel, there are no bulldozers poised to bring plaintiffs' vision into fruition. If the injunction is granted, however, plaintiffs will be foreclosed from the application process which, so far, has not resulted in a single spade of earth being turned on CSCC's land. The balancing of the equities, at this time, favors the plaintiffs (see Clarion Assoc. v Colby Co., 276 AD2d 461, 463 [2d Dept 2000]).

We have considered the remaining arguments and case law submitted by defense counsel and although they have been set before the court with commendable vigor, they have failed to be persuasive. It is incumbent upon a movant seeking a preliminary injunction to demonstrate all of the elements necessary (Town of Deerpark v City of Port Jervis, 240 AD2d 487, 488 [2d Dept 1997]). Since defendants have failed to meet their burden, the court is obliged to deny their motion.

Therefore, it is ordered that under the circumstances presented, the defendants' motion for a preliminary injunction (mot seq 004) is denied.