Wellcome v. Ben Jac Properties Realty Corp.

In an action, inter alia, to recover damages for breach of a lease, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated April 8, 1996, as granted the defendants’ motion for a preliminary injunction, inter alia, to enjoin the plaintiffs from interfering with the defendants’ right to remove or abandon in place certain underground gasoline storage tanks, and denied the plaintiffs’ cross motion for a preliminary injunction to enjoin the defendants from doing so.

Ordered that the order is affirmed insofar as appealed from, With costs.

The Supreme Court did not improvidently exercise its discretion in resolving the parties’ respective applications for preliminary injunctive relief by permitting the defendants to remove or abandon in place the underground gasoline storage tanks at issue (see, CPLR 6301; County of Orange v Lockey, 111 AD2d 896). We note, however, that the Supreme Court’s order does not constitute the law of the case with respect to the merits of the action (see. Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 190, n 1; Mars Novelty Corp. v Sunrise Mall Assocs., 181 AD2d 661, 663; Siegel, NY Prac § 328, at 468 [2d ed]). Bracken, J. P., Copertino, Santucci and McGinity, JJ., concur.