The Appellate Division held this week that by failing to obtain a preliminary injunction the challenge to a preliminary subdivision approval was ultimately rendered academic. In Matter of Sherman v.Planning Board of Village of Scarsdale, the Court found that while the challenge to a preliminary subdivision was pending the property owner obtained final approval and proceeded with substantial work.
The Court held:
“The appellants failed to move in the Supreme Court for a preliminary injunction to enjoin the Gelboims from undertaking the steps needed to obtain final plat approval. In addition, the appellants failed to move in this Court for a preliminary injunction to preserve the status quo pending the determination of this appeal. Consequently, the appellants failed to preserve their rights pending appellate review, and the appeal must be dismissed as academic…”