Opinion
29920/07.
Decided May 14, 2009.
Anthony P. Marchesi, Esq. for Plaintiffs.
Robert A. Saasto, Esq. for Defendants CHEN and LIANG.
Russo Pedranghelu, Esqs. for defendant HONG KONG STYLE CONSTRUCTION, INC.
Scott E. Kosgrove, Esq. for defendants LOUIS CARDENAS and RE/MAX UNIVERSAL, INC.
Allyn J. Crawford, Esq. for defendant ABACUS FEDERAL.
XIAN FENG ZOU, appearing pro se.
REBAR ENTERPRISE, INC., nonappearing defendant.
Several motions were originally submitted on January 29, 2009 and respectfully referred to the judge before whom they were originally heard for decision. By memorandum from such judge dated April 2, 2009, these two motions were then respectfully referred back to the undersigned judge for decision. Subsequent to such memorandum, the parties of this action stipulated to submission of final papers and final submission to the court, of which final papers were received, dated May 4, 2009, and hand-delivered soon thereafter.
Upon the foregoing cited papers, it is ordered that plaintiffs' motion for injunctive relief and defendants' motion to cancel notice of pendency is decided as follows:
Plaintiffs sold residential real property to defendants CHEN and LIANG. The contract of sale included conditions contained in "First Rider to Contract of Sale" that, after conveyance to CHEN and LIANG, the premises could not be demolished but could be converted into a two-family premises as long as the core foundation of the premises remained intact. After closing, defendants CHEN and LIANG performed renovations that plaintiffs allege violates such rider clauses, a contention CHEN and LIANG disputes.
Plaintiffs commenced this action alleging fraud and collusion among the brokers, attorneys, lenders and the buyers as well as breach of contract and breach of fiduciary duty claims.
In this motion, plaintiffs seek injunctive relief during the pendency of this action to prevent CHEN and LIANG from sale of this house, arguing that one of the remedies plaintiffs request is rescission of the contract and return of ownership of the property to the plaintiffs. In essence, though not expressly stated by the movants, the movants seek a preliminary injunction. The requirements of such relief are well established: likelihood of the movants' success on the merits, irreparable injury absent granting of the preliminary injunction and a balancing of equities that favors the movants' position. See Moody v Filipowski, 146 AD2d 675 [App Div 2d Dept 1989]. Such a showing does not require proof that no other remedy absent injunctive relief would sufficiently protect the movants but simply that the equities would favor, upon such showing and in the judge's discretion, the granting of injunctive relief. While no relief for specific performance is requested in plaintiffs' complaint, clearly, the action concerns the subject property and, as such, qualifies for, at least, consideration of injunctive relief by the standards of CPLR 6301.
In these facts, plaintiffs' complaint is predominantly comprised of causes of action against the various defendants sounding in fraud and collusion. The thrust of the complaint concerns an alleged collusion among the attorneys, brokers, lending institutions and buyers involved in the sale of the subject property to represent preservation of the character of the home while actually intending its effective destruction. Additionally, the complaint includes other causes of action alleging breach of contract and breach of fiduciary duty. However, the complaint includes a single cause of action requesting repudiation of the contract stating, "As there is no monetary award sufficient to compensate for the irreplaceable house, Plaintiff ESTATE should be entitled to repudiation of the contract and regain ownership of the PROPERTY."
Thus, in these facts, given the uniqueness of the home and the issue of its demolition as the sole subject of the action, sale of the home to a third party against whom the rider clauses in question would have no effect would render the relief of repudiation impracticable, if not impossible. Such showing indicates irreparable harm.
Regarding the likelihood of success, "preliminary injunctive relief is a drastic remedy which will not be granted 'unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant'" See Nalitt v City of New York, 138 AD3d 580 [App Div 2d Dept 1988], quoting First National Bank v Highland Hardwoods, 98 AD2d 924 [App Div, 3d Dept 1983]. Such proof must include at least affidavits. See CPLR 6312(a). In these facts, the sole affidavit proffered by movants is that of an attorney who attests that the home is actively being shown for sale. No affidavits as to the merits of the plaintiffs' causes of action are provided. Further, the plaintiffs' attorney's affirmation refers to pending motions for summary judgment, which have been since decided, and further states "sufficient evidence has been shown as to render their Complaint sufficient for the case to proceed to the discovery stage and as a result, there is a likelihood of success of Plaintiffs' motion." Such showing is not what is required for a preliminary injunction. Again, to allow the drastic remedy of prevention of a sale of property now owned by the defendants, it is insufficient to show only that the case may move forward to discovery; what is required is a showing of the likelihood of success on the merits of the plaintiffs' cause of action. Plaintiffs' motion is devoid of any admissible evidence or evidence in support of its causes of action. Further, summary judgment has been granted by order of another judge leaving only plaintiffs' claims for breach of contract. See Stangel et al v Chen et al, Sup Ct, Queens County, Apr. 29, 2009, Butler, J.
Lastly, in both the defendants' sur-reply and plaintiffs' responsive papers to the sur-reply, arguments are asserted regarding architectural reports of the subject property since the filing of this motion. These reports prepared by architects retained by the plaintiffs, as well as affidavits prepared by the defendants, take opposing positions on the effect of the defendants' renovations in regard to the rider clauses. However, while such reports may or may not have probative effect, plaintiffs' counsel is correct in his argument in his responsive papers that such new evidence may not be presented at this time, whether its effect is to hinder or aid, intentionally or unintentionally, in the movants' relief. See Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [App Div 2d Dept 2005]. Thus, relying only on the papers presented in the plaintiffs' motion, the movants have failed to present any showing or probative evidence of the likelihood of the success on the merits. Further, the decision of another judge granting summary judgment as to all claims except those for breach of contract clearly has rendered moot plaintiffs' claim for rescission of contract and the associated equitable relief.
Thus, plaintiffs' motion is denied.
The court now turns to defendants' motion to cancel the notice of pendency. A notice of pendency is appropriate only when judgment in an action would affect title to, or possession, use or enjoyment of real property. See CPLR 6501. Further, there must be a direct relationship to title in the damages sought in the complaint to allow a notice of pendency to remain. See 5303 Realty Corp. V O Y Equity Corp., 64 NY2d 313 [Ct Appeals 1984]. While most of plaintiffs' claims regard fraud, collusion, conversion, breach of contract and fiduciary duty for which money damages are sought by the plaintiffs, the plaintiffs' complaint includes a cause of action seeking repudiation of the contract that, if successful, would result in returning ownership of the property to plaintiffs. Such equitable relief would have obvious direct effect on title and is sufficient to warrant the notice of pendency. However, as noted earlier, another judge's decision in this action has granted summary judgment as to all claims except those for breach of contract. A breach of contract claim or request for an accounting would not result in a judgment affecting title or possession, use or enjoyment of real property. See Distinctive Custom Building Homes, Inc v Esteves, 12 AD3d 559 [App Div 2d Dept 2004]. Thus, no basis for the notice of pendency remains and it shall be cancelled.
The court finally notes that CPLR 6001 states, "The provisional remedies are attachment, injunction, receivership and notice of pendency. On a motion for a provisional remedy, the plaintiffs shall state whether any other provisional remedy has been secured or sought in the same action against the same defendant . . ." Further, CPLR 6001 states, "the court may require the plaintiff to elect between those remedies to which he would otherwise be entitled . . ." Plaintiffs failed to advise the court of the existing notice of pendency, as required by such statute; however, given plaintiffs' failure to secure injunctive relief as well as the cancellation of the notice of pendency, such election is clearly no longer necessary in this matter, though the court notes plaintiffs' failure in its statutory requirements.
Accordingly, plaintiffs' motion for injunctive relief is denied in its entirety. Defendant CHEN and LIANG's motion to cancel the notice of pendency is granted and the notice of pendency filed by plaintiffs against the defendants for the premises located at 204-88 33rd Avenue, Bayside, NY 11361 is hereby cancelled.