PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN JJ.

CA 22-01756

IN THE MATTER OF THE CAMPAIGN FOR BUFFALO HISTORY ARCHITECTURE & CULTURE, INC., PETITIONER-APPELLANT, V CITY OF BUFFALO AND ADM MILLING, CO., RESPONDENTS-RESPONDENTS.

Petitioner having moved, upon the return of an order to show cause granted by the Honorable John M. Curran on November 15, 2022, for a rehearing En Banc of the applications for preliminary injunctive relief pursuant to CPLR 5518, to prohibit, restrain, and enjoin respondents from taking any further actions to demolish or destroy the structure known as the Great Northern Grain Elevator located at 250 Ganson Street, Buffalo N.Y., in this appeal from a judgment (denominated decision and order) of the Supreme Court, Erie County, entered September 15, 2022, pending the hearing and determination of the appeal taken herein,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that the motion seeking a preliminary injunction is denied on the ground that petitioner has failed to establish, by clear and convincing evidence, a likelihood of success on the merits of this appeal (see Eastview Mall, LLC v Grace Homes, Inc., 182 AD3d 1057, 1058 [4th Dept 2020]).

Memorandum: Unlike the appeal promptly pursued by petitioner earlier this year (CA 22-00086), and decided by this Court within 112 days from the filing of the notice of appeal, petitioner has yet to perfect its appeal before this Court despite the passage of 87 days since the notice of appeal herein was filed. Rather than timely perfect this appeal and thereby enable this Court to consider its merits, petitioner has thrice applied for temporary injunctive relief and on each occasion the application has been procedurally defective. Pursuant to the New York State Constitution as well as this Court's rules and procedure, a motion served on notice must be considered and decided by a full panel of Justices (NY Const art VI, § 4 [b]; 22 NYCRR 1250.4). By contrast, a proposed order to show cause seeking interim relief (including injunctive relief) is directed to an individual Justice of this Court with chambers in the Judicial District from which the appeal or proceeding arises (22 NYCRR 1000.4 [b]). In this appeal, petitioner has moved three times for interim relief from a single Justice of this Court apparently overlooking the appropriate procedure for review by a full panel of Justices. On the third occasion, a Justice of this Court exercised his discretion and treated the proposed order to show cause as though it was a motion on notice seeking interim relief from a full panel of Justices. Notably, a notice of motion seeking injunctive relief from a full panel of justices could have been interposed by petitioner immediately following the show cause application that a Justice of this Court declined to sign on September 16, 2022, the same day the application was presented to this Court. Had petitioner interposed an appropriate motion on notice seeking injunctive relief at that time, or shortly after, pursuant to the aforementioned Constitutional mandate and this Court's rules and procedure, the motion would have been decided by a full panel of Justices during the Court's October 2022 term. Inasmuch as this appeal has not yet been perfected by petitioner, and because petitioner never moved on notice for a preliminary injunction, petitioner is now left with the remedy of perfecting this appeal as soon as possible and to thereafter seek a calendar preference by notice of motion.

Entered: December 12, 2022

Ann Dillon Flynn

Clerk of the Court