Opinion
325107.
Decided December 5, 2003.
This is an application for a preliminary injunction. The proceeding was commenced by order to show cause and petition seeking, inter alia, to restrain the following persons from selling or assisting in the sale of real property located at 2 Leslie Lane, North Massapequa: Peter Perri, the administrator of the estate; Patrick Mielo, the attorney for the administrator; Dean Perri, a distributee; and Coldwell Banker, broker. The court held a hearing on the return date on whether a preliminary injunction should issue. The attorney for a prospective purchaser, Jenni Mass, was present at the hearing and submitted papers on behalf of his client.
The decedent, Myrna Perri, died intestate on September 5, 2002. She was survived by three sons, Peter Perri, Dean Perri and Craig Perri. Peter Perri was appointed temporary administrator of his mother's estate on May 30, 2003 and administrator on September 24, 2003.
On or about September 19, 2003, the attorney for the administrator forwarded copies of a proposed contract of sale to a prospective purchaser, Jenni Mass.
On or about September 22, 2003, Craig Perri commenced a proceeding by order to show cause which included a temporary restraining order enjoining and restraining Peter Perri from "entering into a contract for the sale of 2 Leslie Lane, North Massapequa, New York to any person other than the Petitioner, Craig Perri" . . . A copy of the order to show cause was served upon Peter Perri on the morning of September 30, 2003 and the matter was scheduled to be heard on October 8, 2003.
On or about September 30, 2003, the attorney for the purchaser returned the contracts, which his client signed, to the attorney for the administrator along with the down payment. The down payment was deposited into the escrow account maintained by the attorney for the administrator on or about October 4, 2003.
On October 10, 2003, Craig Perri, his attorney, Steven Hand, Esq., and Patrick Mielo, Esq., the attorney for the administrator, entered into a stipulation of settlement at the courthouse before a court reporter wherein they agreed to the following terms: Craig Perri would purchase the real property for $415,000. The down payment was in the amount of $20,000. Patrick Mielo was to provide a contract for sale of the property to Mr. Hand by October 14, 2003 and the closing was scheduled to take place, subject to the report of a reputable title company, on October 28, 2003. Mr. Mielo represented that he had the authority to settle on behalf of his client, Peter Perri.
It is uncontroverted that a contract was never forwarded to Mr. Hand. Instead, on October 20, 2003, Peter Perri signed the contract of sale with Jenni Mass as purchaser. His purported reason for not abiding by the terms of the stipulation is that Craig Perri failed to show him that he had sufficient assets which would allow him to consummate the sale. As a result, in Peter Perri's opinion, he was under no obligation to forward a contract to Craig Perri and he was not in violation of any restraining order.
In order to prevail in a proceeding for a preliminary injunction, the petitioner must demonstrate the likelihood of success on the merits, irreparable injury absent a preliminary injunction and a balancing of equities in his favor ( Aetna Ins. Co. v. Capasso, 75 NY2d 860).
The petitioner in this proceeding must show that he is likely to succeed on his claim to the real property in question and that Jenni Mass' claim to the real property is not likely to be successful. The stipulation entered into on October 10, 2003 contained definite terms as to the purchase price, the down payment, the closing date and possible penalties. The only future action contemplated by the parties was the signing of a formal contract which was to have been provided to the petitioner by October 14. "A memorandum of sale is no less a contract because the parties contemplated the execution of a more formal agreement . . . When all the essential terms and conditions of an agreement have been set forth in informal written memoranda and all that remains is their translation into a more formal document, such an agreement will be capable of specific performance ( Healy v. Gurnienny, 142 AD 2d 629, 630, citations omitted).
Further, stipulations of settlement are favored and will not be lightly cast aside ( Hallock v. State, 64 NY2d 224, 230). "Only where there is cause sufficient to invalidate a contract such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" ( id.). Thus, it is likely that the petitioner will succeed on the merits of his claim to the real property as long as Jenni Mass' claim is not superior to petitioner's claim.
When Peter Perri signed the contract in which he agreed to convey the property to Jenni Mass, he was subject to a restraining order which enjoined him from entering into a contract with anyone other than Craig Perri. A temporary restraining order may be vacated by judgment denying the permanent injunction or a discontinuance of the action (13 Weinstein-Korn-Miller, NY Civ Prac, ¶ 6314.12). "The presumption in a normal case should be that an action is not automatically terminated merely because an agreement to settle has been made. This presumption may be overcome only upon a showing that the parties have executed an express, unconditional stipulation of discontinuance, or have entered judgment in accordance with the terms of the settlement" ( Teitelbaum Holdings v. Gold, 48 NY2d 51, 56). Where further action is required of the parties, as is the case in the instant proceeding, the court has held that a stipulation of settlement "was not intended to nor did not conclude the action" ( Nikolaus v. Gasiorowski, 72 AD2d 834). As the stipulation in question contemplated further action on the part of the parties and did not contain any language, express or otherwise, that the parties contemplated discontinuing the proceeding, the temporary restraining order was in effect on October 20, 2003, when Peter Perri signed the contract to convey the property to Jenni Mass.
Contracts entered into in violation of temporary restraining orders are invalid ( Crane v. New York Council 66 of American Federation of State, County and Municipal Employees, 101 AD2d 682). Further, as Peter Perri's authority to act as administrator had been modified by the court, the letters of his appointment cannot be considered conclusive evidence of his authority (SCPA 703.1). As such, Peter Perri was an unqualified fiduciary with no authority to enter into a contract of sale of the real property with any other person than Craig Perri ( see, Petrizzo v. Kochersberger, 148 Misc2d 478).
Thus, the petitioner has shown a likelihood of success on the merits.
The petitioner has further demonstrated that he would suffer irreparable injury absent the preliminary injunction and that the equities balance in his favor ( Northside Studios, Inc. v. Treccagnoli, 262 AD2d 469).
Accordingly, the motion for preliminary injunction is granted and upon petitioner filing an undertaking in the amount of twenty-five thousand dollars ($25,000), Peter Perri, Patrick Mielo, Dean Perri and Coldwell Banker are enjoined from taking any steps to sell or assist in selling the real property located at 2 Leslie Lane, North Massapequa, New York, pending a determination on the merits of the underlying proceeding.
This constitutes the decision and order of the court.