## Facts

- Occupants of four City-owned, formerly abandoned tenement buildings on East 13th Street sought to prevent removal so the City and a nonprofit developer could rehabilitate the buildings into federally subsidized low-income housing.
- The occupants claimed they had acquired legal title to the buildings by adverse possession based on their occupation and repair of the properties.
- The occupants commenced an Article 78 proceeding and related action against City housing officials and the designated nonprofit developer.
- The occupants moved for a preliminary injunction to bar eviction during the litigation, including an order prohibiting removal by “self-help.”
- The Supreme Court granted a preliminary injunction to the limited extent of enjoining respondents from using self-help to remove the occupants while the action was pending.
- City officials and the developer appealed.

## Issues

1. Whether the occupants met the requirements for a preliminary injunction barring removal pending trial on their adverse possession claim.
2. Whether the occupants demonstrated a likelihood of success in proving ten years of actual, continuous, open and notorious adverse possession of the City-owned buildings.

## Decision

- The Appellate Division reversed the order granting a preliminary injunction.
- The court denied the motion for a preliminary injunction and vacated the injunction.
- The court found the occupants were not likely to prove ten years of actual, continuous, open and notorious possession during the relevant period.
- Because the claim of right was not supported by a written instrument, the court applied the requirement of actual (not constructive) possession, further undermining the showing of likely success.

## Legal Principles

- A preliminary injunction requires: (1) likelihood of success on the merits; (2) irreparable injury absent relief; and (3) a balance of equities favoring the movant.
- Preliminary injunctive relief is a drastic remedy reserved for cases showing a clear legal right.
- Adverse possession must be proven by clear and convincing evidence of actual possession for ten years that is open and notorious, exclusive, continuous, hostile, and under claim of right.
- Where a claim of right is not based on a written instrument, the claimant must show actual rather than constructive possession to satisfy the statutory period.

## Conclusion

The court vacated interim injunctive relief because the occupants failed to demonstrate a sufficient likelihood of success on their adverse possession theory, particularly the required ten years of actual, continuous, open and notorious possession, and therefore were not entitled to an order barring removal pending trial.


E. 13th St. Homesteaders’ Coal. v. Lower E. Side Coal. Hous. Dev., 230 A.D.2d 622, 646 N.Y.S.2d 324 (1st Dep’t 1996)