Greencove Associates, L. L. C. v. Equistate, L. L. C.

In an action to recover damages for trespass and conversion, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated September 28, 1999, as denied its cross motion for summary judgment on the complaint and dismissal of the counterclaims, and the defendant cross-appeals from so much of the same order as denied its motion, inter alia, for a preliminary injunction. Ordered that the order is affirmed, without costs or disbursements. In support of its cross motion for summary judgment on the complaint and dismissal of the counterclaims, the plaintiff [277] failed to make out a prima facie case that it is entitled to judgment as a matter of law. There are triable issues of fact concerning, inter alia, whether the general public used the portion of the plaintiffs property over which the defendant contends that it has an easement. Accordingly, the Supreme Court properly denied the cross motion (see, Rogers v Holmes, 217 AD2d 609). Further, where, as here, the facts are sharply disputed, a preliminary injunction will not be granted (see, Skaggs-Walsh, Inc. v Chmiel, 224 AD2d 680). Florio, J. P., McGinity, Luciano and Feuerstein, JJ., concur.