Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023 09:33 PM INDEX NO. 612687/2022
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 02/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.._________X
CHRISCHAR, LLC, AFFIRMATION OF
NICA B. STRUNK
Plaintiff IN SUPPORT OF
MOTION TO RENEW
- against -
Index No. 612687/2022
BRIAN M. DONAGHY, LAUREN DONAGHY,
JOHN DIOS, Individually, and as Trustee of the John
Dios Living Trust, and ROSEMARIE DIOS,
Individually, and as Trustee of the Rosemarie Dios
Living Trust,
Defendants.
- - - -------- ------------- ------ ---- - - X
Nica B. Strunk, an attorney admitted to the practice of law before the Courts
of the State of New York, and not a party to the within action, affirms the
following to be true under penalties of perjury pursuant to CPLR 2106.
1. I am an attorney duly admitted to practice before the Courts of the State of
New York. My firm, Nica B. Strunk PLLC, represents Defendants Brian M.
Donaghy and Lauren Donaghy. I respectfully submit this affirmation in support of
the motion of the Donaghy Defendants for leave to renew Plaintiff's motion for a
preliminary injunction, granted on January 30, 2023, based upon new facts that
occurred after the submission of that motion.
2. The order for which leave to renew is sought was e-filed as NYSCEF Doc.
83; the papers submitted in support of the motion were e-filed as NYSCEF Does.
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2-26; the papers submitted in opposition to the motion were e-filed as NYSCEF
Does. 33-40; and Doc. 57. (NYSCEF Doc Nos. 59-69, submitted by the
undersigned as substitute counsel for the Donaghy Defendants in opposition to the
motion, were not considered by the Court.) In addition, the so-ordered transcript of
oral argument upon the presentation of the Order to Show Cause was e-filed as
NYSCEF Doc. No. 48.
3. CPLR 2221(e) provides, in pertinent part:
"A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that
would change the prior determination . . . ; and
3. shall contain reasonable justification for the failure to present such
motion."
facts on the prior
4. This motion for leave to renew is based upon new facts not offered on the
prior motion that would change the prior determination.
5. Plaintiff's motion sought a preliminary injunction on the basis that its
claimed prescriptive easement over a driveway on adjacent property at 38 Elm
Street, owned in fee by Defendants John and Rosemary Dios, was the "sole ingress
and egress to and from 40 Elm and . . . the only access way from 40 Elm to Elm
Street."
See Short Form Order dated January 30, 2023 (NYSCEF Doc. No. 83), fn.
1, summarizing Plaintiff's arguments.
6. As required on any injunction motion, Plaintiff was required to demonstrate
that it would suffer irreparable harm absent the granting of the preliminary
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injunction. See Short Form Order dated January 30, 2023, p. 3, and cases cited
therein.
7. Here, the Court found that the element of irreparable harm had been
demonstrated, holding: "Moreover, denying plaintiff ingress and egress to the loop
driveway on 40 Elm from the shared, common driveway irreparably harms
plaintiff, as it presently has no other means of ingress or egress to the home,
."
concrete driveway, frame garage, and other structures on 40 Elm . . . (Emphasis
added.)
8. As shown in the accompanying Affidavit of Brian Donaghy, and the
photograph annexed thereto, Plaintiff now does have its own, independent means
of ingress and egress to the home, concrete driveway, frame garage and other
structures on 40 Elm. It has paved a driveway entirely on its own property that
grants full access to those structures and is currently being used for such access.
9. It is respectfully submitted that the new facts shown in the accompanying
Affidavit of Brian Donaghy, and the photograph annexed thereto, should change
this Court's prior determination that denying the Plaintiff access over its claimed
prescriptive easement on the adjacent driveway at 38 Elm Street, owned by the
Dios Defendants, would cause the Plaintiff irreparable harm.
10.CPLR 2221(e)(3) requires that motions to renew "shall contain reasonable
motion."
justification for the failure to present such facts on the prior Here, as
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shown in the accompanying affidavit, the newly paved driveway was not in
existence at the time of the submission of the motion on October 31, 2022.
Accordingly, it was impossible to submit evidence of this critical fact. See Puntino
v. Chin, 288 A.D.2d 202 (2d Dep't 2001) (considering a motion to renew based
upon newly discovered evidence that the movant did not have at the time of the
original motion).
11. In sum, it is respectfully submitted that the new evidence of the driveway
that the Plaintiff has paved on its own property defeats any showing of irreparable
harm and should change this Court's prior determination that Plaintiff is entitled to
a preliminary injunction.
Dated: Southampton, New York
February 28, 2023
NICA B. STRUNK
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Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023 09:33 PM INDEX NO. 612687/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 02/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.._________X CHRISCHAR, LLC, AFFIRMATION OF NICA B. STRUNK Plaintiff IN SUPPORT OF MOTION TO RENEW - against - Index No. 612687/2022 BRIAN M. DONAGHY, LAUREN DONAGHY, JOHN DIOS, Individually, and as Trustee of the John Dios Living Trust, and ROSEMARIE DIOS, Individually, and as Trustee of the Rosemarie Dios Living Trust, Defendants. - - - -------- ------------- ------ ---- - - X Nica B. Strunk, an attorney admitted to the practice of law before the Courts of the State of New York, and not a party to the within action, affirms the following to be true under penalties of perjury pursuant to CPLR 2106. 1. I am an attorney duly admitted to practice before the Courts of the State of New York. My firm, Nica B. Strunk PLLC, represents Defendants Brian M. Donaghy and Lauren Donaghy. I respectfully submit this affirmation in support of the motion of the Donaghy Defendants for leave to renew Plaintiff's motion for a preliminary injunction, granted on January 30, 2023, based upon new facts that occurred after the submission of that motion. 2. The order for which leave to renew is sought was e-filed as NYSCEF Doc. 83; the papers submitted in support of the motion were e-filed as NYSCEF Does. 1 of 4 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09:33 PM INDEX NO. 612687/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 02/28/2023 2-26; the papers submitted in opposition to the motion were e-filed as NYSCEF Does. 33-40; and Doc. 57. (NYSCEF Doc Nos. 59-69, submitted by the undersigned as substitute counsel for the Donaghy Defendants in opposition to the motion, were not considered by the Court.) In addition, the so-ordered transcript of oral argument upon the presentation of the Order to Show Cause was e-filed as NYSCEF Doc. No. 48. 3. CPLR 2221(e) provides, in pertinent part: "A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination . . . ; and 3. shall contain reasonable justification for the failure to present such motion." facts on the prior 4. This motion for leave to renew is based upon new facts not offered on the prior motion that would change the prior determination. 5. Plaintiff's motion sought a preliminary injunction on the basis that its claimed prescriptive easement over a driveway on adjacent property at 38 Elm Street, owned in fee by Defendants John and Rosemary Dios, was the "sole ingress and egress to and from 40 Elm and . . . the only access way from 40 Elm to Elm Street." See Short Form Order dated January 30, 2023 (NYSCEF Doc. No. 83), fn. 1, summarizing Plaintiff's arguments. 6. As required on any injunction motion, Plaintiff was required to demonstrate that it would suffer irreparable harm absent the granting of the preliminary 2 2 of 4 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09:33 PM INDEX NO. 612687/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 02/28/2023 injunction. See Short Form Order dated January 30, 2023, p. 3, and cases cited therein. 7. Here, the Court found that the element of irreparable harm had been demonstrated, holding: "Moreover, denying plaintiff ingress and egress to the loop driveway on 40 Elm from the shared, common driveway irreparably harms plaintiff, as it presently has no other means of ingress or egress to the home, ." concrete driveway, frame garage, and other structures on 40 Elm . . . (Emphasis added.) 8. As shown in the accompanying Affidavit of Brian Donaghy, and the photograph annexed thereto, Plaintiff now does have its own, independent means of ingress and egress to the home, concrete driveway, frame garage and other structures on 40 Elm. It has paved a driveway entirely on its own property that grants full access to those structures and is currently being used for such access. 9. It is respectfully submitted that the new facts shown in the accompanying Affidavit of Brian Donaghy, and the photograph annexed thereto, should change this Court's prior determination that denying the Plaintiff access over its claimed prescriptive easement on the adjacent driveway at 38 Elm Street, owned by the Dios Defendants, would cause the Plaintiff irreparable harm. 10.CPLR 2221(e)(3) requires that motions to renew "shall contain reasonable motion." justification for the failure to present such facts on the prior Here, as 3 3 of 4 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09:33 PM INDEX NO. 612687/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 02/28/2023 shown in the accompanying affidavit, the newly paved driveway was not in existence at the time of the submission of the motion on October 31, 2022. Accordingly, it was impossible to submit evidence of this critical fact. See Puntino v. Chin, 288 A.D.2d 202 (2d Dep't 2001) (considering a motion to renew based upon newly discovered evidence that the movant did not have at the time of the original motion). 11. In sum, it is respectfully submitted that the new evidence of the driveway that the Plaintiff has paved on its own property defeats any showing of irreparable harm and should change this Court's prior determination that Plaintiff is entitled to a preliminary injunction. Dated: Southampton, New York February 28, 2023 NICA B. STRUNK 4 4 of 4