State Supreme Court Justice Kevin M. Dillon on Thursday vacated the temporary restraining order preventing the demolition of the Grandview Drive-In in Evans.
But that doesn't mean the structure will come down immediately.
David Seeger, the lawyer for the Friends of the Grandview, said he would return to court today, asking Dillon for another restraining order.
He said Dillon gave no reason for vacating the order, but Seeger said he planned to add the Town of Evans to the list of plaintiffs.
"The Town of Evans is responsible for [environmental review], and the judge asked several times, 'Shouldn't the town be a party to this?' " Seeger said. "I don't know what the judge will say, but I know it's what I have to do. We're not going to sit idly by while the theater comes down."
A Wal-Mart Supercenter has been proposed for the Grandview site, at Route 5 and Lake Street.
The drive-in didn't open last summer because of negotiation problems between the property owner, Ed Carbeck, and the operator, Larry Geitner.
The theater is one of only two drive-ins remaining in Erie County. The other -- the Buffalo Drive-In on Harlem Road in Cheektowaga -- is scheduled to close permanently in the fall.
In a letter to the Evans Town Board, Carbeck said he is seeking to demolish the Grandview, although he held out some hope of donating the structure to a historical group.
Seeger said that filings by Carbeck and Gabriel Ferber, his attorney, indicate they "acknowledged they have to complete the [State Environmental Quality Review Act] process before they can tear down the building."
Ferber, however, described the lawsuit as unnecessary, saying: "We had no intention of not following [the environmental review] or any town ordinance. We're not going to demolish it until the process is complete."