Why Community Groups Can Never Win Against Developers

Subsequent cases have made the rule of Dreikausen ever more draconian. In Citineighbors Coalition v. Landmarks Preservation Commission, 2 N.Y.3d 727 (2004), petitioners neglected to ask for preliminary relief although there was already "highly visible construction work." The Court of Appeals dismissed their case as moot, faulting them for "simply assum[ing] that Supreme Court would not grant them injunctive relief or, in the alternative, would require an undertaking in an amount more than they could or wanted to give." In Weeks Woodlands Assn. v. Dormitory Auth. Of the State of New York, 95 A.D.3d 747 (1^st Dept. 2012), aff'd on op. below, 20 N.Y.3d 919 (2012), the petitioners brought suit before even appealing to the Board of Standards and Appeals. They sought an injunction from the Supreme Court three times, and were denied each time. "[T]he petitioners acknowledge[d] that the requirement to provide a bond for delaying construction of a multi-million dollar project ha[d] deterred them from seeking a stay in the Appellate Division." Id. At 767 (Catterson, J., dissenting). The Appellate Division held the case to be moot because the petitioners had not renewed their request for an injunction in that court. There are at least 10 Appellate Division cases that reach the same result.

The paradox lies in the fact that a preliminary injunction requires a showing of irreparable harm — the harm in these cases being that by the time the case reaches an appellate court, the building will be complete and petitioners' case will be moot. But Dreikausen says that by the very act of seeking an injunction, petitioners have insulated themselves from that harm. Because petitioners cannot meet the basic requirement of irreparable harm, their motion for preliminary injunctive relief will necessarily be denied. See, e.g., City Club of N.Y. v. Extell, 2019 NY Slip Op. 31645 (Sup. Ct. N.Y. Co. June 11, 2019) (preliminary injunction motion denied because petitioners' motion protected them from subsequent holding of mootness); Queens Neighborhood United v. New York City Dept. of Bldgs., 62 Misc. 3d 1210[A] (Sup. Ct. N.Y. Co. 2019) (same). And in the improbable event petitioners' request for a preliminary injunction were granted, they would not have the resources to post the bond that would be required to compensate the developer for any damages it would suffer during the pendency of the case, should it prevail in the end.