Opinion
2002-01166
Argued January 15, 2003.
February 18, 2003.
In an action, inter alia, to recover damages for trespass and nuisance, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated December 20, 2001, which denied its motion for a preliminary injunction.
Kenneth Heller, New York, N.Y., for appellant.
Keane Beane, P.C., White Plains, N.Y. (Joel H. Sachs and Eric L. Gordon of counsel), for respondents Town of Bedford and Town of Bedford Wetlands Control Commission.
Lester Schwab Katz Dwyer, LLP, New York, N.Y. (John Sandercock and Steven B. Prystowsky of counsel), for respondents David M. Madden and Jennifer S. Madden.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
In support of its motion for a preliminary injunction, the plaintiff submitted an affirmation from an attorney who was the principal shareholder of the plaintiff corporation. The Supreme Court properly disregarded the affirmation, since the attorney should have submitted an affidavit (see CPLR 2106; Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801; Pisacreta v. Minniti, 265 A.D.2d 540). The deficiency rendered the plaintiff's moving papers insufficient to support the relief requested.
In any event, the plaintiff failed to make the requisite showing for a preliminary injunction (see Doe v. Axelrod, 73 N.Y.2d 748, 750; Mosseri v. Fried, 289 A.D.2d 545). Not only were the facts sharply disputed in this case, but the plaintiff failed to show that it was likely to succeed on the merits of its claims alleging trespass and nuisance (see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570; Kossoff v. Rathgeb-Walsh, 3 N.Y.2d 583, 589-590; Gollomp v. Dubbs, 283 A.D.2d 550). Furthermore, the plaintiff was collaterally estopped from relitigating the issue of the installation of two culverts by the defendant Town of Bedford, since this issue was litigated previously in an action entitled Seven Acre Wood Street Assocs. v. Wood, in the Supreme Court, Westchester County, under Index No. 16042/97, wherein a motion for a preliminary injunction involving the same culverts was denied, and the plaintiff had a full and fair opportunity to contest the prior determination (see Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667; Kaufman v. Lilly Co., 65 N.Y.2d 449, 455).
SANTUCCI, J.P., FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.