Opinion
2002-02543
Submitted May 30, 2003.
August 4, 2003.
In an action, inter alia, to impose a constructive trust on certain real property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Sgroi, J.), dated February 11, 2002, which denied their motion for a preliminary injunction restraining the defendant from removing them from, or transferring, conveying, or encumbering the subject premises, and to transfer a summary proceeding entitled Barbaro v. Collins, commenced in the District Court, Suffolk County, under Index No. ISLT 1247/01, to the Supreme Court, Suffolk County.
Jeffrey A. Seigel, Islandia, N.Y. (Victor J. Ambrose of counsel), for appellants.
Before: SANDRA J. FEUERSTEIN, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order as denied that branch of the motion which was for a preliminary injunction is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
According to the allegations in the verified complaint, the defendant, who is the aunt of the plaintiff Theresa Collins, executed a mortgage in favor of a mortgage broker and took title to certain real property that the plaintiffs wanted to purchase, with the understanding that the plaintiffs were the true owners of the property and were responsible for all maintenance costs and mortgage payments related to it. After the plaintiffs made several payments on the mortgage, the defendant prevented the plaintiffs from making timely payments to the mortgagee's assignee. The defendant then procured a judgment and warrant of eviction against the plaintiffs in a summary proceeding in the District Court, Suffolk County.
The plaintiffs commenced the instant action against the defendant, seeking, among other things, the imposition of a constructive trust on the property and to recover monetary damages. The plaintiffs moved for, among other relief, a preliminary injunction restraining the defendant from removing them from the property, and from conveying or assigning the property. The Supreme Court denied the plaintiffs' motion, indicating that their causes of action were barred by the doctrines of res judicata and collateral estoppel, as well as the statute of frauds.
The appeal from so much of the order as denied that branch of the plaintiffs' motion which was for preliminary injunctive relief is academic as a result of the sale of the property pursuant to a judgment of foreclosure and sale. However, we note that contrary to the Supreme Court's determination, the doctrines of res judicata and collateral estoppel ( see Finkelman v. Finkelman, 105 A.D.2d 771; Mason v. Foxcroft Vil., 67 A.D.2d 1012; O'Frias v. Melton, 32 A.D.2d 1046, affd 27 N.Y.2d 638; see also Ferber v. Salon Moderne, Inc., 174 Misc.2d 945), and the statute of frauds ( see Cilibrasi v. Gagliardotto, 297 A.D.2d 778; Delango v. Delango, 203 A.D.2d 319; Gottlieb v. Gottlieb, 166 A.D.2d 413), do not bar the present action.
Contrary to the plaintiffs' contention, transfer of the summary proceeding from the District Court to the Supreme Court is inappropriate under these circumstances.
FEUERSTEIN, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.