Opinion
Index No. 527113/2019
06-26-2023
Marc Edery and Anat Edery, Plaintiffs, v. Robert Edery and EOM 2385 OP LLC, Defendants.
The Cohen Law Firm LLP, Brooklyn (Raymond Cohen of counsel), for plaintiffs. The Esses Law Group, LLC, New York City (Leo L. Esses of counsel), for defendant EOM 2385 OP LLC.
Unpublished Opinion
The Cohen Law Firm LLP, Brooklyn (Raymond Cohen of counsel), for plaintiffs.
The Esses Law Group, LLC, New York City (Leo L. Esses of counsel), for defendant EOM 2385 OP LLC.
HON. AARON D. MASLOW, Justice of the Supreme Court of the State of New York.
The following numbered papers were read on this application: NYSCEF Doc Nos. 329-358.
Introduction
On June 23, 2023, there came before this Court an application for a temporary restraining order (TRO) contained within a proposed order to show cause submitted by Plaintiffs Marc Edery and Anat Edery for signature. Oral argument took place. The order to show cause sought to bring on a motion to enjoin Defendant EOM 2385 OP LLC (EOM) from taking any action in furtherance of an order of the Civil Court in EOM 2385 OP LLC v. Edery (Kings Index No. LT-317691/2022), including executing on the warrant of eviction therein. Plaintiffs also sought to include in their motion an application to consolidate the within Supreme Court action with the Civil Court action, which ended in a decision and order awarding a judgment of possession to Defendant EOM. (See NYSCEF Doc No. 358, order to show cause.)
The proposed order to show cause was submitted on NYSCEF on June 19, 2023.
The TRO included in the proposed order to show cause read as follows:
ORDERED, that pending the hearing and determination of this motion, all actions and proceedings with respect to the Premises and Property, including, without limitation, the summary holdover proceeding currently in the Civil Court of the City of New York, County of Kings, entitled EOM 2385 OP LLC v. Marc Edery and Anat Edery et al.; Index No. LT-317691/2022, are hereby stayed, and the defendants or anybody acting on defendants' behalf, including any sheriff or marshal, are hereby stayed, enjoined and restrained from continuing to prosecute against Plaintiffs or any other persons and/or any occupant or tenant of the Property any action with respect to the Premises and any part of the Property and from executing on the warrant of eviction issued in the case entitled EOM 2385 OP LLC v. Marc Edery and Anat Edery et al.; Index No. LT-317691/2022....(Id. at 2.)
Upon the close of oral argument, this Court signed the proposed order to show cause, making the motion for an injunction returnable on July 14, 2023. The provision for a TRO, however, was stricken. This Court stated that the TRO provision was stricken because Plaintiffs' actions contributed to their imminent eviction by intentionally not participating in the trial in the Civil Court, not filing a notice of appeal from the judgment of that court, and not seeking a stay in the Civil Court. This Court stated further that a complete decision would be issued. This Court now issues a more complete decision.
Background
The within Supreme Court action was commenced on December 12, 2019, through the filing of a summons and complaint. Plaintiffs are the son and daughter-in-law of Robert Edery. Plaintiffs sought to obtain title to the subject premises from Robert Edery through adverse possession. Plaintiffs sought a declaratory judgment against Robert Edery that they were entitled to the property. Robert Edery died during the pendency of this case but before his death he sold the premises to EOM, a limited liability company, which took title despite being aware of the bitter internecine family dispute over the property. A deed dated December 6, 2019 was recorded on December 17, 2019. At a certain point EOM was added as a Defendant.
That Robert Edery is deceased is of no legal import to the present proceedings inasmuch as the title he possessed was deeded to EOM, which is the Defendant in interest presently.
This Court became familiar with the action, which was assigned to its case inventory, when competing motions for summary judgment regarding the issue of adverse possession came before it on May 12, 2023. At that time, this Court denied both motions, deeming there to be material issues of fact with respect to the ten-year period needed to show actual hostility as an element of adverse possession when there is a family relationship. (See NYSCEF Doc No. 326, transcript of oral decision.) An order of this Court from that date appears as NYSCEF Doc No. 328.
The Parallel Proceeding
Insofar as the Plaintiffs Marc Edery and Anat Edery reside at the property, EOM, the owner of record of the property, filed a holdover petition in Civil Court on August 3, 2022 against them, other persons with the last name of Edery, "John Doe," and "Jane Doe" (see NYSCEF Doc No. 357, Letter of Leo L. Esses dated June 20, 2023 at 2, citing https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=3fH0yey_PLUS_NY1IHQpirbbEQg== [last accessed ]).
A decision and order was issued by Hon. Kevin C. McClanahan, Judge of the Housing Part of Civil Court, on March 13, 2023, when a trial was conducted (see NYSCEF Doc No. 357, Letter of Leo L. Esses dated June 20, 2023 at 2, citing https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=nuJZqNRIdI6KlnG4JIRdtg== [last accessed ]).
Judge McClanahan sat in Housing Part P of the Civil Court of the City of New York, Kings County.
Critically, Judge McClanahan issued a final judgment of possession in favor of the petitioner therein, EOM, and against the respondents Marc Edery, Anat Edery, and the other named respondents, after having conducted a trial (see NYSCEF Doc No. 357, Letter of Leo L. Esses dated June 20, 2023 at 2, citing https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=EHp5pQrIXZNI0WjKxkWRjw==.) At the conclusion of his decision and order, Judge McClanahan wrote:
Based on the foregoing , the Court grants to petitioner a final judgment of possession against all respondents with issuance of the warrant forthwith. Execution is stayed thirty days to allow respondents to vacate with dignity.
/s/
Kevin C. McClanahan, J.H.C.
Hon. Kevin C. McClanahan(https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=nuJZqNRIdI6KlnG4JIRdtg==.)
The Civil Court's Critical Decision and Order
Significantly, Judge McClanahan issued the following well-reasoned decision and order underlying his grant of a "final judgment of possession" in favor of the petitioner EOM:
On March 13, [2023], respondent's counsel [attorney for Plaintiffs herein Marc Edery and Anat Edery] made an application for an adjournment claiming he needed time to prepare his witnesses and that the witnesses were not available for trial. The Court considered and denied the application as this proceeding is the second between the parties and the testimony will be essentially identical. The Court then addressed another proceeding. When commencing the trial, respondent's counsel notified the Court that he would be "intentionally defaulting" because he "would lose" the hearing. The Court requested that he reconsider his strategy as he had the right to cross-examine petitioner's witnesses. He declined and left the courtroom. The Court conducted the trial/inquest.(Id.)
Judge McClanahan's decision and order further accounted for his grant of a "final judgment of possession" in favor of the petitioner EOM and against the respondents Marc Edery and Anat Edery as follows:
On March 13, 2023, the Court held a trial of this matter. The predicate notice characterizes respondents as tenants "at will" and purports to give Respondents ninety days to vacate possession of the subject premises, expiring on July 31, 2022. An affidavit of service of the predicate notice shows that service of it was complete as or April 22, 2022.
***
Petitioner submitted into evidence the deed dated December 6, 2019, for the house in which the subject premises is located.
***
Leo Mizrachi ('the LLC Member') testified that he is the sole member of petitioner and that he closed on the subject premises on December 6, 2019. He further testified that respondents were in possession of the subject premises at the time of the closing, that respondents are still in possession, that respondents have never paid him anything, and that there is no lease agreement for the subject premise. Petitioner then rested.(Id.)
In his decision and order, Judge McClanahan articulated as follows the rationale underlying his grant of a "final judgment of possession" in favor of the petitioner EOM:
The Court finds respondents are tenants at will, which is defined as occupants who enter upon property by permission of the owner for an indefinite period even without the reservation of rent. Larned v. Hudson, 60 NY 102 (1875). Given their status as tenants at will, petitioner properly served them with a ninety-day notice of termination.... Based on the foregoing, the Court grants to petitioner a final judgment of possession against all respondents with issuance of the warrant forthwith. Execution is stayed thirty days to allow respondents to vacate with dignity.
/s/
Kevin C. McClanahan, J.H.C.
Hon. Kevin C. McClanahan(Id.)
The Order to Show Cause
In endeavoring to wrestle with the adverse consequences flowing from the March 13, 2023 decision and order, and the judgment entered thereon, issued by Judge McClanahan, Plaintiffs in the present action, rather than appealing to the Appellate Term, opted to move by order to show cause to: (1) stay enforcement of the Civil Court's judgment after trial granting possession of the premises to EOM; and (2) consolidate the Civil Court summary proceeding with the present action.
The Order to Show Cause, as Proposed, Was Unavailing on Various Grounds
The Order to Show Cause, as proposed with the TRO, was unsound on several independent bases, which are explored below.
This Court considered two alternative routes: (1) not approving the order to show cause; or (2) approving the order to show cause with modifications, thus allowing EOM to submit opposition papers.
Whereas Plaintiffs submitted a plethora of documents, Defendants submitted a counsel's letter which appears as NYSCEF Doc No. 357; it contained links to documents.
Plaintiffs Moved in the Wrong Forum
Plaintiffs' decision to move by order to show cause in the Supreme Court to stay enforcement of the Civil Court's judgment granting possession of the premises to EOM is puzzling.
Plaintiffs' strategic choice to proceed in this Courthouse can only be construed as the fruit of forum shopping.
Justice Doris Ling-Cohen of Supreme Court, New York County, held as follows in a relatively similar fact pattern, in which she declined to sign an order to show cause which sought, as here, a TRO staying all proceedings in a related Civil Court landlord-tenant holdover summary proceeding and the consolidation of the Civil Court action with the Supreme Court action, which relief she aptly described as "extraordinary":
It is well settled that the Civil Court, Housing Part, is the preferred forum for resolving landlord-tenant disputes, expeditiously. In the Civil Court, both plaintiff and defendants can adjudicate their claims and defendants can adjudicate their claims and defenses, via summary proceedings, where a prompt and expeditious determination may be had. The ends of Justice are always promoted by the speedy trial of an action.
Upon the above referenced papers, the Court declines to sign this Order to Show Cause which seeks, inter alia, a temporary restraining order and a preliminary injunction staying all proceedings in the related summary proceeding and the removal and consolidation of the summary proceeding with this action:
(1) Movants failed in the submitted papers to meet the standard for injunctive relief; such relief sought by plaintiff is extraordinary, and not granted lightly by courts.
(2) Plaintiffs may assert their declaratory judgement/equitable claims as defenses in the context of the landlord-tenant holdover proceeding which has been commenced by defendant, in the preferred, more expeditions forum resolving landlord-tenant disputes.
(3) Plaintiff's cited cases on irreparable harm are inapplicable, as the summary proceeding has already been commenced by the landlord in housing court.
Any further applications/orders to show cause in this case must contain a copy of this order.(MacDonald v 1700 First Avenue, LLC, 2009 WL 10206994, *1-2 [Sup Ct, NY County, Feb. 3, 2009, No. 114622/2008] [emphasis added] [internal citations and quotation marks omitted].)
A Temporary Restraining Order Constitutes a Drastic Remedy That Should Be Used Sparingly
Beyond interposing a motion in the wrong forum, Plaintiffs seek a temporary restraining order, which relief is a drastic remedy that should be used sparingly.
As held by Justice Ling-Cohan, of Supreme Court, New York County, in another well-crafted decision in which the movant, as here, interposed a motion by order to show cause seeking the extraordinary relief of a temporary restraining order:
CPLR 6301 and 6313 (a) allow for the granting of a temporary restraining order pending the hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. To be entitled to temporary injunctive relief, movant must show: (1) the likelihood of success on the merits; (2) irreparable injury absent granting the injunction; and (3) a balancing of the equities. (W.T. Grant Co. v Srogi, 52 N.Y.2d 496, 517 [1981].) Irreparable injury has been held to mean an injury for which monetary damages are insufficient. (See James v Gottlieb, 85 A.D.2d 572 [1st Dept 1981]; Klein, Wagner & Morris v Lawrence A. Klein, P.C., 186 A.D.2d 631, 633 [2d Dept 1992].)
To be successful, a plaintiff must establish a showing of urgency that the requested temporary relief is needed to protect the status quo, lest the defendant act in such a way as to render the desired final outcome an impossibility. (Building Mgt. Assoc., Inc. v Rivera, NYLJ, Oct. 23, 2002, at 22, col 2 [Sup Ct, Bronx County].) Temporary restraining orders are drastic remedies and should be used sparingly. (67A NY Jur 2d, Injunctions § 57; Grumet v Cuomo, 162 Misc.2d 913, 929 [Sup Ct, Albany County 1994]; Bisca v Bisca, 108 Misc.2d 227 [Sup Ct, Nassau County 1981].)
Here, as further detailed below, plaintiff has failed in the moving papers to meet the standard for injunctive relief. Additionally, as detailed below, this court lacks jurisdiction to grant the requested relief.(Silvestre v De Loaiza, 12 Misc.3d 492, 493 [Sup Ct, NY County 2006] [emphasis added].)
Plaintiffs' Delay Warrants Denial of Extraordinary Temporary Restraining Order Sought
Any attempt on the part of Plaintiffs to contend that they satisfy the above-described "irreparable harm" prong of the temporary restraining order inquiry is belied by the following critical fact: Plaintiffs waited for a staggering period exceeding three months since the Civil Court issued a final judgment of possession on March 13, 2023 to move by order to show cause before this Court to challenge such decision.
As held by the First Department in a situation involving a comparable three-and-a-half month delay by a movant in seeking injunctive relief:
Denial of an injunction pendente lite against solicitation of plaintiff-appellant's customers is amply justified by delay of three and one-half months in seeking this relief. In the interval, had plaintiff moved with dispatch consonant with a threat of truly irreparable harm, all issues could well have been resolved at a plenary trial. Further, there is no clear showing of a right to the relief sought.(Mercury Serv. Sys., Inc. v Schmidt, 50 A.D.2d 533, 533 [1st Dept 1975] [emphasis added].)
Plaintiffs' Demand for Monetary Damages in the "Wherefore Clause" of the Complaint Undermines Their Claim of Irreparable Injury
Further undermining any attempt on the part of Plaintiffs to posit that they satisfy the above-described "irreparable injury" prong of the temporary restraining order and preliminary injunction inquiry is a fact that has not been addressed by either party.
In the verified amended complaint, Plaintiffs seek not only injunctive relief but also tellingly seek a monetary judgment against all Defendants for $1,300,000.00 (NYSCEF Doc No. 355, Plaintiff's Exhibit F at 17 [Wherefore clause ¶ (g)]). This request for a monetary judgment drastically undermines Plaintiffs' attempt to convince this Court that they satisfy the irreparable injury requirement to the grant of the temporary restraining order and preliminary injunction that they now seek.
As held by the Nassau County Surrogate's Court on this very issue:
It has long been recognized that economic loss, compensable by money damages, does not constitute irreparable harm (Rowland v. Dushin, 82 A.D.3d 738, 917 N.Y.S.2d 702 [2d Dept 2011]; EDCIA Corp. v. McCormack, 44 A.D.3d 991, 845 N.Y.S.2d 104 [2d Dept 2007]). In the "WHEREFORE" clause of the objections filed by Beth and Bonnie they seek to surcharge Carl for any loss to the trust estate by reason of this and other alleged breaches of fiduciary duty by him. Carl argues, and the court agrees, that this fact alone mitigates against a finding of irreparable harm. Although respondents urge that any surcharge would be "ineffectual," there is no indication either way of Carl's financial ability to answer for any damages. Further, while Beth and Bonnie contend that a contested accounting has some equitable aspects to it, and injunctive relief is available in an equitable setting, that does not alter the obvious conclusion that a surcharge would make them whole.(Matter of Raffe, 42 Misc.3d 1236 (A), 2014 NY Slip Op 50372(U) [Sur Ct, Nassau County 2014] [emphasis added].)
As the Second Department held, to satisfy the irreparable injury requirement, the plaintiff's injuries cannot be compensable by money damages:
To be entitled to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6312 [c]; Board of Mgrs. of Wharfside Condominium v Nehrich, 73 A.D.3d 822, 824 [2010]; Yemini v Goldberg, 60 A.D.3d 935, 936 [2009]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Gluck v Hoary, 55 A.D.3d 668, 668 [2008]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072, 1073 [2008]).
Here, the plaintiffs did not meet their burden of demonstrating that they would suffer irreparable injury if the preliminary injunction were not granted (see Dixon v Malouf, 61 A.D.3d 630 [2009]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072 [2008]; 1659 Ralph Ave. Laundromat Corp. v Ben David Enters., 307 A.D.2d 288, 289 [2003]; Khan v State Univ. of NY Health Science Ctr. at Brooklyn, 271 A.D.2d 656 [2000]; cf. Winzelberg v 1319 50th Realty Corp., 52 A.D.3d 700 [2008]). The plaintiffs failed to point to any imminent and nonspeculative harm that would befall them in the absence of the requested relief, and failed to demonstrate that any injuries they would suffer would not be compensable by money damages (see EdCia Corp. v McCormack, 44 A.D.3d 991, 994 [2007]; Neos v Lacey, 291 A.D.2d 434, 435 [2002]).(Rowland v Dushin, 82 A.D.3d 738, 739 [2nd Dept 2011] [emphasis added].)
The Doctrine of Collateral Estoppel Arguably Bars the Relief Sought By Plaintiffs
A potent argument can be advanced that the doctrine of collateral estoppel bars the relief sought by Plaintiffs in the present action, namely, among other relief, a declaratory judgment to the effect that Plaintiffs are the owners of the premises.
Indeed, as set forth in detail above, in his March 13, 2023 decision and order, Judge McClanahan granted a final judgment of possession in favor of the petitioner EOM on the following ground:
The Court finds respondents are tenants at will, which is defined as occupants who enter upon property by permission of the owner for an indefinite period even without the reservation of rent. Larned v. Hudson, 60 NY 102 (1875). Given their status as tenants at will, petitioner properly served them with a ninety-day notice of termination....
Based on the foregoing, the Court grants to petitioner a final judgment of possession against all respondents with issuance of the warrant forthwith. Execution is stayed thirty days to allow respondents to vacate with dignity.
/s/
Kevin C. McClanahan, J.H.C.
Hon. Kevin C. McClanahan(https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=nuJZqNRIdI6KlnG4JIRdtg==.)
Having necessarily determined that EOM was the owner of the Premises, the judgment issued by the Civil Court after a trial may reasonably be deemed to bar the relief sought by Plaintiffs in the present action-namely, a declaratory judgment to the effect that Plaintiffs are the rightful owners of the very same property-by virtue of the doctrine of collateral estoppel, thereby arguably rendering the present action all but moot. The issue at the heart of the present action has already arguably been adjudicated in another forum (namely, in the Civil Court proceeding).
As held by the Court of Appeals in a relatively recent decision:
Issue preclusion, also known as collateral estoppel, bars the relitigation of "an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment"... As a result, the determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim.(Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 N.Y.3d 64, 72 [2018].)
This Court notes that Plaintiffs herein asserted adverse possession in the eleventh affirmative defense in their amended answer in the Civil Court action (NYSCEF Doc No. 357, Letter of Leo L. Esses dated June 20, 2023 at 2, citing https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=3fH0yey_PLUS_NY1IHQpirbbEQg== [last accessed ]). As such, even though they did not participate in the trial there and Judge McClanahan did not make an explicit finding regarding adverse possession, the potential effect of collateral estoppel is evident, and this could impair Plaintiffs' argument of likelihood of success on the merits (see Nissequogue Boat Club v State, 14 A.D.3d 542 [2d Dept 2005]; Akbar Self Help Inc. v City of New York, 24 Misc.3d 243 [Sup Ct, Kings County 2009]). In Nissequogue Boat Club, the Appellate Division held that the plaintiff was collaterally estopped from raising an issue of adverse possession in an action to determine a claim to real property, since it unsuccessfully raised the issue as a defense in a summary proceeding in the District Court seeking possession of the same real property. The fact that the District Court did not have the authority to determine issues of title did not bar application of the doctrine of collateral estoppel.
The phrase "adverse possession" was not used but the factual assertions in the eleventh affirmative defense (paragraphs 63-69) set forth the elements, and the defense refers to the instant Supreme Court action).
In short, a cogent argument can be made that Plaintiffs had a full and fair opportunity to argue in the context of the Civil Court proceeding that they are the rightful owners of the premises, i.e., that their eleventh affirmative defense precluded a judgment of possession for EOM. This issue, having been litigated through a trial in the Civil Court proceeding, as a result of which EOM was given a final judgment of possession against Plaintiffs, arguably precludes them from claiming a likelihood of success on the merits.
Determination
Plaintiff's application for a TRO was denied since they failed to establish that they met the criteria for its issuance. The motion to enjoin EOM is set for July 14, 2023, before this Court as per the signed order to show cause.