Opinion
009758/05.
May 8, 2006.
The following papers having been on the motion: [numbered 1-8]
Plaintiff's Order To Show Cause Exhibits in Support.......................1 Respondent, Laureen Buchanan's Notice of Motion to Remove and Consolidate, Affirmation in Support Exhibits.....................2 Defendant's, GALEA, Affirmation and Affidavit in Opposition.................3 Plaintiff's Affirmation in Opposition to Consolidation......................4 Defendant, WASHINGTON MUTUAL, Affirmation in Opposition.....................5 Reply Affirmation in Support of Application and in Response to Affirmation in Opposition of Thomas G. Sherwood, Esq................6 Reply Affirmation In Support of Application and in Response to Affirmation in Opposition of Bruce Migatz, Esq......................7 Respondent's Reply Affirmation in Further Support of Motion to Consolidate.........................................................8
In an action pursuant to, inter alia, Real Property Action and Proceedings Law § 901 for a partition and sale of premises located at 86 Florida Street, Long Beach, New York, the plaintiff Betty Jean Trahan moves by order to show cause for: (1) injunctive relief, pendente lite and "on a permanent basis," enjoining the defendants Galea from "renting, conveying or mortgaging" the subject premises, and further restraining codefendant Washington Mutual Bank, F.A., A Federal Association, from participating in any refinancing of the premises; and (2) exclusive occupancy of the subject premises for a four month period of July 1, 2005 through October 1, 2005; (3) an order setting a date and time when the plaintiff may enter upon the premises for, inter alia, the purposes of inspection, measuring, surveying, sampling, testing photographing and/or video recording the entire, subject premises; and (4) a further order compelling the defendants Galea to comply with the plaintiff's June 30, 2005 Notice for Discovery and Inspection by producing certain information regarding insurance coverage as may be existing and relevant.
Motion by Laureen Buchanan pursuant to CPLR 602 [b] for an order removing a proceeding pending in the Surrogates Court, Nassau County entitled Application of Betty Jean Trahan, as Executrix of the Last Will and Testament of Leonard C. Trahan, et., al. [File No. 257591], and consolidating that proceeding with the above-captioned action under Index No. 05-009758.
Upon her husband's death in October of 1988, the plaintiff Betty Jean Trahan claims to have inherited a partial, "one-third plus $4,000.00" interest in residential premises located at 86 Florida Street Long Beach, New York. She subsequently resided in the house for a few months and then permanently moved to Tennessee, after which, the mortgage, tax debts and other expenses associated with the property lapsed into default.
The property deteriorated, accumulated building violations, and was eventually foreclosed upon by the mortgagee and sold to a third party in 1995, i.e., Berley Industries, Inc. ["Berley"] (Pltff's Exhs., "G" though "K").
For reasons which the record does not disclose, the plaintiff was initially a named party in the 1995 mortgage foreclosure action (as executor of her husband's estate), but was later dropped as a party thereto, and apparently never served with process in that proceeding (Order of Reference, Pltff's Exh., "H" [3rd decretal paragraph]).
According to the plaintiff, and although a lis pendens had been filed and notice of foreclosure sale published, she was allegedly unaware that the mortgage foreclosure action had been commenced and that the property had been sold in 1995. Instead she claims to have assumed — based upon information obtained from persons whom she has not specifically identified — that the property "'had been taken over by the City of Long Beach' apparently due to building [code] violations" (Trahan Aff, ¶¶ 35-38).
In 1996, Berely sold the property to one Laureen Buchanan (Pltff's Exh., "L"), who improved the premises and then conveyed it in February of 2002 to the defendants Emanuel and Debra Galea for the sum of $300,000.00.
The Galeas claim, inter alia, that they purchased the property in the good faith belief that it was free and clear of any liens; that they made significant improvements to the property; and that they currently utilize it as their sole and exclusive residence (Galea Exh., "1"; E. Galea Aff., ¶¶ 2-3).
Codefendant Washington Mutual Bank ["Washington Mutual"] is presently the holder of a consolidated first mortgage on the premises in the principal amount of 230,000.00 (Pltff's Exh., "A").
The plaintiff advises that in March of 2005, she discovered that her interest in the property was allegedly not extinguished by the 1995 foreclosure judgment, and then commenced a proceeding in the Surrogates Court, Nassau County, in which she seeks, inter alia, compensation from Berley and Buchanan for the reasonable use and occupation value of the premises (Petition, ¶¶ 18-20).
Shortly after commencing the previously referenced Surrogates Court proceeding, the plaintiff instituted the within action alleging, inter alia, entitlement to the equitable remedy of partition and/or sale. The plaintiff has also filed a lis pendens in connection with the action (Pltff s Exh., "G").
In opposing the plaintiff's co-tenancy claim, the Galeas argue that the plaintiff's claims are barred by laches, unclean hands, estoppel and "inequitable conduct" since, among other things: (1) plaintiff's alleged inaction and dereliction of her duties as executor effectively set in motion the chain of events which led to the foreclosure sale and the good faith, subsequent conveyances of the property; and (2) that the plaintiff has — some 15 years later — inequitably and belatedly asserted an interest in what is now a renovated and far more valuable property, free and clear of the liens which had originally been permitted to lapse into default (Sherwood Aff., ¶ 44).
By order to show cause dated August of 2005, the plaintiff now moves for, inter alia, injunctive relief: (1) precluding the Galeas from "renting, conveying or mortgaging" the subject premises; (2) enjoining codefendant Washington Mutual Bank from participating in any refinancing of the subject premises; and (3) granting her, as a purported tenant in common, "exclusive occupancy" of the subject premises for a stated, four-month period, corresponding to her alleged, one-third interest in the property.
The Galeas have opposed the application and Laureen Buchanan has cross moved for an order removing the Surrogates Court proceeding (in which she is a respondent), to this Court and thereafter consolidating that proceeding with the instant action.
The plaintiff's application for injunctive relief should be denied. The cross motion is similarly denied.
An application for injunctive relief rests in the Court's discretion and will be granted only upon papers demonstrating (1) a clear right to the remedy, which is plain from the undisputed facts ( Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, 22 AD3d 587); (2) a likelihood of success of the merits; (3) irreparable harm; and (4) a balancing of the equities in favor of the movant ( Aetna Ins. Co. v. Capasso, 75 NY2d 869; Doe v. Axelrod, 73 NY2d 748, 750; Ruiz v. Meloney 810 NYS2d 216, ___ AD3d ___ [2nd Dept. 2006]; Stockley v. Gorelik, 24 AD3d 535; Weinreb Management, LLC v. KBD Management, Inc., 22 AD3d 571). Moreover, it is well-settled that "the right to maintain an action for a partition is not absolute and is subject to the equities between the parties" ( Kopsidas v. Krokos, 294 AD2d 406, 407; Worthing v. Cossar, 93 AD2d 515, 517 see, Vasquez v. Zambrano, 196 AD2d 840 see also, Ripp v. Ripp, 38 AD2d 65, 68, affd, 32 NY2d 755; Gabay v. Bender, 24 AD3d 133; RPAPL 901).
With the foregoing principles in mind, the Court agrees that plaintiff has failed to demonstrate "a clear right" to the discretionary relief sought "which is plain from the undisputed facts" ( Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, supra).
Specifically, plaintiff has not offered a persuasive reason — much less a cogently articulated need or necessity — for an order ousting the Galeas from the premises and placing her in exclusive possession of the premises pendente lite, "and on a permanent basis," during stated summer months — an intrusive and drastic remedy at this pre-trial juncture of the proceedings. Moreover, to do so during the pendency of the action would be to effectively assume the viability of the plaintiff's allegations and grant her what amounts to portions of the ultimate relief sought in the action ( SHS Baisley, LLC v. Res Land, Inc., 18 AD3d 727).
Nor do the equities favor the plaintiff, inasmuch as the record indicates, inter alia, that the Galeas purchased the property in good faith for some $300.000.00 and have expended substantial sums improving and maintaining it as their sole and exclusive residence.
In contrast, the plaintiff apparently abandoned the premises upon departing for Tennessee; failed to ensure that tax and mortgage debts were paid; allegedly permitted the property to deteriorate to the extent that she believed that the City of Long Beach had acquired it based on unaddressed building Code violations; and has provided, at best, vaguely framed allegations describing the events which transpired with respect to her departure in 1989 and the occupancy and/or status of the premises from that point until the foreclosure action was commenced in 1995.
Nor in the Court's view, has the plaintiff established that she will sustain irreparable harm in the event that she is denied further relief enjoining any potential sale and/or refinancing by the Galeas or Washington Mutual (Trahan Aff., ¶¶ 5, 17).
Upon the speculative claims advanced by the plaintiff, the Court agrees that the lis pendens filed by the plaintiff-which applies to encumbrances and conveyances made subsequent to its filing ( e.g., In re Sakow, 97 NY2d 436, 440-441; CPLR 6513 cf., Novastar Mortg., Inc. v. Mendoza, ___ AD3d ___ [2nd Dept. 2006]) — will provide adequate security absent some concrete proof of circumstances warranting a greater or more immediately intrusive level of relief. The plaintiff herself has conceded that the lis pendens she has filed provides a measure of protection with respect to, inter alia, any potential sales and/or further refinancing (Trahan Aff., ¶¶ 5, 17).
Lastly, the Court agrees that the plaintiff has failed to adequately demonstrate a likelihood of success on the merits in light of, inter alia, the potential application of (1) the ten-year limitations period relevant to adverse possession claims ( see, RPAPL § 541; Myers v. Bartholomew, 91 NY2d 630, 633 cf., Green Point Sav. Bank v. Barbagallo, 247 AD2d 442; SRF Builders Capital Corp. v. Ventura, 224 AD2d 678 see, Novastar Mortg., Inc. v. Mendoza, supra); and (2) the equitable bar of laches ( Lackey v. Romano, 283 AD2d 463), which is predicated "on lapse of time and the intervention of circumstances which render it unjust for the court in equity to assist plaintiff ( Krieger v. Krieger, 25 NY2d 364, 370 see generally, Amsterdam Sav. Bank v. City View Management Corp., 45 NY2d 854, 855-856; Chase Manhattan Mortg. Corp. v. Anatian, 22 AD3d 625, 627 see also, Green v. Green, 9 AD3d 350).
However, that branch of the plaintiff's order to show cause which is to compel the plaintiff to produce certain insurance information requested in her June 30, 2005 notice to produce, is granted (Pltff's Exh., "Y"; CPLR 3103[f]).
The Galeas' opposing papers do not offer a persuasive reason supporting their claim that the materials in question need not be produced (Sherwood Aff. in Opp., ¶¶ 45-47). The Galeas shall produce responses to the foregoing demands within twenty days of the date of this order.
The remaining branches of the plaintiff's order to show which relate to discovery matters (Bogal Aff., ¶¶ 23-27), are granted to the extent that the parties shall appear before the undersigned for a Conference on 2006, at am/pm, at which any issues relating to then outstanding discovery requests and/or demands shall be considered.
Finally, the motion by non-party Laureen Buchanan for an order pursuant to CPLR 602 removing the Surrogates Court proceeding and consolidating it with this action, is denied.
It is settled that "[t]he power to order consolidation rests in the sound discretion of the court" ( Skelly v. Sachem Cent. School Dist., 309 AD2d 917; D'Abreau v. American Bankers Ins. Co. of Florida, 261 AD2d 501, 502; Stephens v. Allstate Ins. Co., 185 AD2d 338).
Here, and despite the presence of certain common issues ( Glussi v. Fortune Brands, Inc., 276 AD2d 586), the claims for relief which have been raised in the Surrogate's Court proceeding differ from those raised in this action. Under these circumstances, the Court finds that removal and consolidation would not further the interests of justice and judicial economy ( Beerman v. Morhaim, 17 AD3d 302; Skelly v. Sachem Cent. School Dist., supra; Target Graphics Inc. v. Deutsch, 282 AD2d 601; Lupoli v. Lupoli, 205 AD2d 595).
The foregoing constitutes the decision and order of the Court.