Opinion
3595-2019
09-01-2020
A.G., Plaintiff, v. A.B., Defendant.
Attorney for Plaintiff: Law Office of Joseph C. Perez, Joseph Cruz Perez, Esq. 703 Pelham RoadNew Rochelle, NY 10805 Attorney for Defendant: Sanctuary for Families, Soraya Hurtado, Esq., 198 East 161st Street, 2nd Floor, Bronx, NY 10451
Attorney for Plaintiff: Law Office of Joseph C. Perez, Joseph Cruz Perez, Esq. 703 Pelham RoadNew Rochelle, NY 10805
Attorney for Defendant: Sanctuary for Families, Soraya Hurtado, Esq., 198 East 161st Street, 2nd Floor, Bronx, NY 10451
Bahaati E. Pitt, J.
The following papers numbered 1 to 17 read on this Order to Show Cause by the defendant A.B. to, inter alia, enjoin and restrain plaintiff A.G. from taking any action that would encumber, convey, transfer, or dispose of, plaintiff's ownership of, or any of his interests or rights in the property, in any way, fashion, or form.
PAPERS NUMBERED Order to Show Cause - Affirmation in Support - Exhibits 1 - 14 Affirmation in Opposition 15 Reply Affirmation in Support of Order to Show Cause - Exhibits 16-17
Upon the foregoing papers, and after due deliberation having been had on August 11, 2020 and September 1, 2020, the following are the Court's findings of facts and conclusions of law:
In the instant Order to Show Cause, defendant seeks an order preventing plaintiff from taking any action to, inter alia, evict the defendant from her residence. In support of this Order to Show Cause, an affidavit of defendant, A.B., sworn to on July 9, 2020, and an affirmation of A.M., Staff Attorney with Mobilization for Justice Inc., dated July 10, 2020 were submitted.
The defendant's affidavit indicates that on February 11, 2019, the plaintiff's ex-wife, W.H. (hereinafter referred to as "third-party owner"), commenced an eviction proceeding against both the plaintiff and defendant (see Affidavit of A.B. at 5). The affidavit also contends that the third-party owner changed the locks to the mailbox, the basement patio, the circuit breaker and on June 15, 2020, installed surveillance cameras around the Property (see Affidavit of A.B. at 6-8). The affidavit further contends that on June 16, 2020, the plaintiff's new girlfriend was at the Property to supervise the installation of the surveillance cameras and that defendant has reason to believe that the plaintiff is cooperating with and encouraging the actions that the third-party owner is taking against the defendant (see Affidavit of A.B. at 9-10).
The affirmation of A.M., the defendant's attorney in her ongoing Housing Court matter, outlines the history of the eviction proceeding commenced by the third-party owner against the plaintiff and defendant. This affirmation also indicates that A.M. was advised by defendant of the alleged conduct outlined in the defendant's affidavit in support of this Order to Show Cause (see Affirmation of A.M.).
Section (i) of the Order to Show Cause seeks an order "[r]estraining and enjoining Plaintiff from taking any action against the Defendant, to evict the Defendant from her current place of residence at XXXX XXXXXX Avenue, Bronx, NY XXXXX (the "Property"), or from taking any action of any nature whatsoever intended to, or that would have the effect of, facilitating, furthering, aiding or assisting in Defendant's eviction from the Property, or that could reasonably be foreseen to lead to her eviction from the Property" (Defendant's Order to Show Cause at 1-2). In response, the plaintiff contends that he has not taken any steps to evict the defendant from her current place of residence and advises that there is a co-owner of the property that is not related to the plaintiff (see Plaintiff's Response to Order to Show Cause at 1).
Plaintiff's Response to Order to Show cause does not have page numbers. The page number referenced in this Order refers to a physical count of the pages in plaintiff's response.
The determination of whether to issue a preliminary injunction is a matter left to the sound discretion of the Court (see Doe v. Axelrod, 73 NY2d 748, 536 NYS2d 44, 532 NE2d 1272 [1988] ). For the court to grant a temporary restraining order and preliminary injunction pursuant to CPLR 6301, the movant must show (1) she was likely to succeed on the merits (2) would suffer irreparable harm absent interim injunctive relief and (3) the balance of the equities were in her favor (see Silva v. Silva , 27 Misc 3d 526, 530—31, 895 NYS2d 704, 708 [Sup Ct, Nassau County 2010] ; Evans—Freke v. Showcase Contracting Corp., 3 AD3d 549, 770 NYS2d 640 [2d Dept 2004] ; Greystone Staffing, Inc. v. Warner , 106 AD3d 954, 965 NYS2d 599 [2d Dept 2013] quoting Yedlin v. Lieberman , 102 AD3d 769, 961 NYS2d 186 [2d Dept 2013] ; Pudalov v. Pudalov , 6 Misc 3d 558, 561, 786 NYS2d 729, 732 [Sup Ct, Westchester County 2004] ; see also CPLR § 6301 ).
In matrimonial actions, Domestic Relations Law ("DRL") § 234 also allows a court to issue pendente lite injunctive relief without requiring that the movant make the requisite showing required by CPLR Article 63; namely irreparable harm and a likelihood of success on the merits (see Taft v. Taft, 156 AD2d 444, 548 NYS2d 726 [2d Dept 1989] ; Leibowits v. Leibowits, 93 AD2d 535, 462 NYS2d 469 [2d Dept 1983] ). When making a determination pursuant to DRL § 234, a court has broad discretion to issue orders which it deems are in the interest of justice concerning marital property ( Taft , 156 AD2d at 446 ).
DRL § 236 defines "marital property" as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held ( DRL § 236[B][1][c] ). Despite this general classification, the Legislature provided for several exceptions to this marital property classification. In this regard, DRL § 236 specifies that marital property does not include the following four categories of property, which are deemed "separate property": "(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part" ( DRL § 236[B][1][d] ).
Pursuant to DRL § 234, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties ( DRL § 234 ). However, a prerequisite to the issuance of an Order Pursuant to DRL § 234 is a showing by the movant that the party to be restrained is "attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution" ( Sacks v. Sacks, 181 AD2d 727, 728, 581 N.Y.S.2d 80 [2d Dept 1992] ; Guttman v. Guttman, 129 AD2d 537, 539, 514 NYS2d 382 [1st Dept 1987] ; Steinberg v. Steinberg, 87 AD2d 782, 450 NYS2d 369 [1st Dept 1982] ; see also Barasch v. Barasch, 166 AD2d 399, 400, 560 NYS2d 658 [2d Dept 1990] ; Cohen v. Cohen, 142 AD2d 543, 530 NYS2d 213 [2d Dept 1988] ).
In the instant matter, the plaintiff and defendant were married on December 16, 2017 (see "Exhibit A" of defendant's Order to Show Cause). However, the deed to XXXX XXXXXX Avenue, Bronx, NY XXXXX, the defendant's current place of residence, shows that the Property was purchased by plaintiff and the third-party owner on April 9, 2010, prior to the subject marriage (see "Exhibit B" of defendant's Order to Show Cause). Therefore, the Property in question, which is still owned by the plaintiff and the third-party owner, is separate property as defined by DRL § 236(B)(1)(d)(1).
Additionally, the documents contained within defendant's Order to Show Cause indicate that the third-party owner initiated the eviction proceeding against the plaintiff and defendant. When dealing with a third-party owner and separate property, DRL § 234 cannot be utilized because the statute's application is limited to the rights of the parties in a matrimonial action. In these instances, the court is restricted to its inherent power to issue preliminary injunctions as regulated by Article 63 of the CPLR (Leibowits, 93AD2d at 537 Silva , 27 Misc 3d at 532 ; Kaplan v. Kaplan , 94 AD2d 788, 463 NYS2d 36 [2d Dept 1983] ). Here, defendant has failed to meet the requirements of CPLR 6301 because she cannot demonstrate a legal interest to the Property which would prevent the plaintiff or the third-party owner from evicting her from the property. As such, a temporary restraining order and preliminary injunction would not be an appropriate remedy and section (i) of defendant's Order to Show Cause is denied (see CPLR 6301 ; see also Guttman , 129 AD2d at 539 ; Steinberg, 87 AD2d 782, Silva , 27 Misc 3d at 532 ).
Although DRL § 234 permits a court to issue an order concerning the possession of real or personal property to prevent the disposition or dissipation of marital assets while a matrimonial action is pending (see Ricatto v. Ricatto , 4 AD3d 514, 515, 772 NYS2d 705 [2d Dept 2004] ; Loderhose v. Loderhose , 216 AD2d275, 627 NYS2d 453 [2d Dept 1995] ; Leibowits, 93 AD2d at 537 ), movant in a matrimonial action that is seeking to restrain a third party from transferring assets must comply with CPLR 6301 (see Kaplan , 94 AD2d 788 ).
Section (ii) of defendant's Order to Show Cause seeks an order "[r]estraining and enjoining Plaintiff from taking any action that would encumber, convey, transfer, or dispose of, Plaintiff's ownership of, or any of his interests or rights in the Property, in any way, fashion, or form" (Defendant's Order to Show Cause at 2). In response, the plaintiff contends that he has not taken any steps that would encumber, convey, transfer, or dispose of, plaintiff's ownership of, or any of his interests or rights in the Property and advises that he is not aware of any steps that the co-owner of the property has taken in this regard (see Plaintiff's Response to Order to Show Cause at 2).
Based on a review of the documents submitted to this Court, section (ii) of defendant's Order to Show Cause seeks to enjoin the sale of separate property that is owned by the plaintiff and a third-party. In so doing, the defendant seeks to enjoin a person that is not a party to this action and is not before this Court. As noted above, the defendant has not established a legal interest in the separate property so there is no issue to be resolved between the plaintiff and defendant regarding the title to the Property (see DRL § 234 ). The defendant has also failed to adequately show that plaintiff is seeking to dispose of marital assets in an effort to prejudice her right to equitable distribution of such assets and trigger the provisions of DRL § 234 (see Guttman , 129 AD2d at 539 ). More importantly, the defendant has failed to show that she would be entitled to equitable distribution pursuant to the factors set forth in DRL § 236(B)(5)(d).
After a review of each party's submissions, this Court finds that defendant is not entitled to equitable distribution due to amongst other factors, the short duration of the marriage at issue (see DRL § 236[B][5][d][2] ). As a result, not only is DRL § 234 inapplicable to the Property in question, but as noted above, a temporary restraining order and preliminary injunction would also be inappropriate because such a restraint does not apply to separate property (see Silva , 27 Misc 3d 526 ; Guttman, 129 AD2d 537 ; Steinberg, 87 AD2d 782 ; see also CPLR 6301 ). Because defendant has not shown a legal interest in the Property, section (ii) of defendant's Order to Show Cause is denied with leave to renew upon defendant's submission of competent proof that she has a legal interest in the Property or is entitled to equitable distribution; and it is further
Plaintiff and defendant were married on December 16, 2017 and the instant action for divorce was filed on February 13, 2019
ORDERED , that section (iii) of the defendant's Order to Show Cause seeking an order directing plaintiff to immediately remove all cameras or devices located on the Property, and at any other location, that enable, allow or permit plaintiff to surveil, monitor or observe defendant or any of her activities is denied as defendant has not provided any competent proof that such cameras were installed by plaintiff; and it is further
ORDERED , that section (iv) of the defendant's Order to Show Cause is granted to the extent that plaintiff shall be restrained and enjoined from installing any further cameras or recording devices on the Property, or in any other location, that enable, allow or permit plaintiff to surveil, monitor or observe defendant or any of her activities, or from directing any person from doing the same on his behalf. This order shall not enjoin or restrain the third-party owner from installing any cameras or devices on the exterior of the Property unless the third-party owner is doing so at the direction of the plaintiff, for which defendant has not shown competent proof; and it is further
ORDERED, that section (v) of the defendant's Order to Show Cause is granted to the extent that plaintiff shall be restrained and enjoined from taking any action intended to, or that would have the effect of, preventing defendant from receiving mail or any other communication addressed to defendant, or for her receipt, in the regular and ordinary course, or from directing any person from doing the same on his behalf. This order shall not enjoin or restrain the third-party owner from effectuating any lawful action on the Property; and it is further
ORDERED, that section (vi) of the defendant's Order to Show Cause is granted to the extent that plaintiff shall be restrained from taking any action that would prevent defendant from having free and unfettered access to mail or other communications addressed to her at the Property, or from directing any person from doing the same on his behalf. This order shall not enjoin or restrain the third-party owner from effectuating any lawful action on the Property; and it is further
ORDERED, that section (vii) of the defendant's Order to Show Cause is granted without opposition, to the extent that plaintiff is directed to provide his 2017, 2018, and 2019 financial statements, tax returns, and W-2's (this Court is ordering that plaintiff provide his W2 forms in connection to the Preliminary Conference Order issued by The Honorable Ethan Greenberg on December 12, 2019); and it is further
ORDERED, that section (viii) of the defendant's Order to Show Cause seeking an order adjudging plaintiff in contempt of court is denied; and it is further
ORDERED, that Section (ix) of the defendant's Order to Show Cause seeking an order granting such other and further relief as this Court deems just and proper, is denied as moot.
ORDERED, that a copy of this Order with Notice of Entry shall be served upon the plaintiff and interested parties within thirty (30) days from the date of entry.
The foregoing constitutes the decision and Order of the Court.