Opinion
30867-2007.
Decided January 10, 2008.
Gary S. Josephs, Esq., Stoney Brook, New York, ATTORNEY FOR PLAINTIFF.
Mark S. Moroknek, Esq., Mineola, New York, ATTORNEY FOR DEFENDANT.
ORDERED , that the motion (motion sequence number 001) by plaintiff for a preliminary injunction is granted to the extent indicated below; and it is further
ORDERED , that plaintiff shall post an undertaking in the amount of $100,000.00.
ORDERED , that a preliminary conference is scheduled for February 7, 2008 at 9:30 a.m. before the undersigned.
This is an action by plaintiff, Joanne Cornell May, commenced by the filing of a Summons and Verified Complaint on or about September 24, 2007, essentially seeking to recover possession and occupancy of certain property located at 357 Old Town Road, Setauket, New York (the "subject premises"). The defendant is the son of plaintiff's husband, John May ("May" or "decedent"), who died on September 6, 2007. The Complaint sets forth nine (9) causes of action: ejectment; recovery of value of use and occupancy of the subject premises; treble damages; conversion; intentional infliction of emotional distress; prima facie tort; fraud; conversion; and unjust enrichment. Plaintiff seeks a permanent injunction, enjoining defendant's use of the subject premises and money damages.
The submissions reflect that plaintiff and decedent were the owners of the subject premises as tenants by the entirety, having acquired same by deed dated October 9, 1997 from John May to John May and Joanne Cornell May. The gravamen of the Complaint is that defendant has seized the subject premises, to her detriment and forcibly prevented plaintiff from entering the property. Plaintiff alleges that defendant changed the locks on the subject premises to prohibit her entry and on or about August 23, 2007, two weeks prior to John May's death, defendant unduly influenced decedent into entering into a lease for the subject premises. The lease to defendant was for a period of 99 years at a rental rate of one dollar per year. Defendant recorded the lease in the office of the Suffolk County Clerk. Plaintiff alleges that defendant has converted the subject premises and the personal belongings of decedent therein, to his own use, without plaintiff's consent. Additionally, plaintiff states there is a tenant in the subject premises at a monthly rental of $1,200.00 and that defendant has been collecting the rent.
The papers further reflect that plaintiff and decedent also owned, as tenants by the entirety, property located at 10 Lower Devon Road, Belle Terre, New York. Such premises was the location of the marital residence. Plaintiff further alleges defendant removed certain automobiles from that residence without her consent.
Plaintiff now moves for a preliminary injunction and seeks the following relief: enjoining, restraining and prohibiting defendant from entering upon, occupying or in any way interfering with plaintiff's quiet enjoyment and ownership of the subject premises; enjoining, restraining and prohibiting defendant from attempting to collect or misappropriate rent from any tenant or occupant of the subject premises; enjoining, restraining and prohibiting defendant from removing or disposing of any person property, owned by plaintiff or decedent, from the subject premises; enjoining, restraining and prohibiting defendant from harassing plaintiff; enjoining, restraining and prohibiting defendant from changing the locks to, or in any way denying or interfering with plaintiff's access to the subject premises; enjoining, restraining and prohibiting defendant from enforcing the 99 year lease or otherwise encumbering the subject premises; and directing the Suffolk County Clerk, nunc pro tunc, to void, invalidate and discharge of record the 99 year lease for the subject premises.
Plaintiff alleges defendant has seized control of the subject premises, twice changed the locks, prevented her from entering, removed personal property and misappropriated the rent due from a tenant. Plaintiff asserts the lease executed by decedent in favor of defendant is invalid because she, as a tenant by the entirety, did not sign the lease. Further, she asserts, that even if the lease was valid, it was extinguished upon the death of John May.
In opposition to the motion, defendant submits an affidavit wherein he claims plaintiff "stole" decedent's previous will and that the deeds to the subject premises and Lower Devon Road property were fraudulently induced by plaintiff. Defendant further claims decedent had power of attorney for plaintiff to execute the lease for the subject premises and he has a valid leasehold interest. Defendant asserts he was the business partner of decedent and a tenant in possession who has a right to remain in possession; he argues that even if plaintiff now is the landlord, her remedy would be to commence an eviction proceeding.
Defendant argues that plaintiff cannot meet the three part test required for a preliminary injunction. He alleges that plaintiff cannot demonstrate a likelihood of success on the merits and annexes a document he claims is the Last Will and Testament of decedent proffered by defendant, dated August 31, 2007, which he recorded in the office of the Suffolk County Clerk on September 10, 2007. Defendant asserts that this document, which purports to bequest the subject premises to defendant and the Lower Devon Road property to plaintiff's daughter, was properly witnessed as a will and reflects decedent's testamentary intent. Defendant claims he was one of the witnesses to the document. Defendant also annexes an unsigned document which he claims was a postnuptial agreement, the original of which he claims plaintiff destroyed. That document also affected title to the subject premises and the Lower Devon Road property. Again, however, there is no evidence that this document was ever executed by the plaintiff and decedent. Finally, defendant annexes canceled checks and invoices demonstrating he has been paying the expenses of the subject premises.
In reply, plaintiff reiterates she did not execute the lease of the subject premises to defendant and decedent did not have her power of attorney. Plaintiff asserts she never signed a postnuptial agreement and the purported Last Will and Testament proffered by defendant is facially invalid because, defendant, as a beneficiary, cannot be a witness to the document. Furthermore, plaintiff asserts there are no assets to probate because all of the assets were owned jointly with plaintiff. She argues the 99 year lease to defendant was void at its inception because it was procured by undue influence, and in any case, extinguished by decedent's death. Plaintiff states that decedent was represented by an attorney when he executed the deeds to the subject premises and Lower Devon Road property and has annexed an affidavit from John P. Oliver, Esq. in support of the motion. Mr. Oliver states that he drafted the deeds to the subject premises and Lower Devon Road property and also the September 23, 2003 Will of decedent. Mr. Oliver asserts that when decedent executed the deeds he was "fully competent, in good health, and free from any undue influence or fraud." He further states he never drafted the purported postnuptial agreement as alleged by defendant and never discussed with decedent defendant's ownership of the subject premises. Finally, plaintiff has annexed the Last Will and Testament of John May, dated September 23, 2003 in which he bequeaths $100,000 to defendant and his residual estate to plaintiff.
The Court has been advised that plaintiff did file this will in the Suffolk County Surrogate's Court in December, 2007, subsequent to the submission of the within motion.
The law is well settled that to obtain a preliminary injunction, the moving party must demonstrate by clear and convincing evidence (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the preliminary injunction; and (3) that a balancing of equities favors the moving party. Edcia Corp. v. McCormack , 44 AD3d 991, 845 NYS2d 104 (2nd Dept. 2007). The purpose of a preliminary injunction is to maintain the status quo during the pendency of the proceeding and prevent the dissipation of property that could render a judgment ineffectual. Ruiz v. Meloney , 26 AD3d 485, 810 NYS2d 216 (2nd Dept. 2006). Moreover, "even when the facts are in dispute, a court may find a likelihood of success on the merits, conclusive proof is not required." Id. However, absent extraordinary circumstances, a mandatory preliminary injunction should not be granted where to do so would grant the moving party the ultimate relief sought in a final judgment. SHS Baisley, LLC. V. Res Land, Inc. , 18 AD3d 727, 795 NYS2d 690 (2nd Dept. 2005). See also, Rosa Hair Stylists, Inc., v. Jaber Food Corp. , 218 AD2d 793, 631 NYS2d 167 (2nd Dept. 1995).
The first cause of action in the Complaint asserts a claim sounding in ejectment and trespass, and seeks a permanent injunction. In order to maintain a cause of action to recover possession of real property, the plaintiff must "(1) be the owner of an estate in fee, for life, or for a term of years, in tangible real property, (2) with a present or immediate right to possession thereof, (3) from which, or of which, he has been unlawfully ousted or disseised by the defendant or his predecessors, and of which the defendant is in present possession." Jannace v. Nelson , 256 AD2d 385, 681 NYS2d 591 (2nd Dept. 1998).
In the instant case, plaintiff has demonstrated a likelihood of success on the merits of her claim to recover possession of the subject premises. Plaintiff has demonstrated, through the submission of the deed to the property, that she is the owner of the subject premises. Although plaintiff erroneously asserts that the lease to defendant was invalid as it was only executed by decedent, she correctly asserts that upon his death, plaintiff, as tenant by the entirety, became the fee owner of the entire property. "Although each tenant by the entirety is seized of the whole estate and neither can lease the premises so as to affect the right of the other's possession, each tenant may lease his or her interest to a third person who then becomes a tenant in common with the other tenant by the entirety, subject to that tenant's right of survivorship." Cataldi v. Cataldi , 34 Misc 2d 748, 229 NYS2d 919 (Sup.Ct. Queens Co. 1962). The right of survivorship remains unaffected by the lease; ultimately, the lessee may obtain the whole fee if his grantor survives, but his interest in the property is completely extinguished if the other spouse survives. Lum v. Antonelli , 102 AD2d 258, 476 NYS2d 921 (2nd Dept. 1984) (emphasis added). Application of these tenets to the case at bar illustrates plaintiff's clear right of ownership of the subject premises. While decedent had the right to lease his interest in the subject premises to defendant, upon decedent's death, such leasehold was extinguished. Moreover, in opposition, defendant has submitted nothing more than an unexecuted postnuptial agreement and an improperly witnessed document he purports to be decedent's Last Will and Testament. Defendant has not attempted to file such document in the Surrogate's Court nor commenced a probate proceeding challenging the Last Will and Testament filed by plaintiff. Such submissions are insufficient to rebut or challenge plaintiff's ownership of the subject premises. Although the Court recognizes that the grant of the preliminary injunction requested herein may have the effect of granting plaintiff the ultimate relief she requests, the documentary evidence unequivocally demonstrates plaintiff's right, title and interest in the subject premises. Thus, plaintiff has satisfied the first prong of the test for a preliminary injunction.
Plaintiff has also established irreparable injury if the preliminary injunction is not granted. Defendant has barred plaintiff's entry into the property by changing the locks, thus precluding her from retrieving decedent's personal belongings and other items located therein. Although money damages may compensate for the lost rental income retained by defendant, the same cannot be said for the decedent's personal belongings, as well as personal documents, etc., that may be located in the subject premises.
Finally, plaintiff has demonstrated that the equities are balanced in favor of granting the injunction. Plaintiff was married to the decedent for twenty-three (23) years and is the owner of the subject premises. While defendant claims plaintiff unduly influenced decedent to execute the deeds to the subject premises and Lower Devon Road property, he has proferred not one scintilla of admissible evidence to support this claim. On the contrary, the submissions, demonstrating that decedent executed certain documents within a few prior to his death in favor of defendant, tend to suggest influence by defendant, rather than plaintiff. Decedent, a sophisticated business owner, executed the subject deeds almost ten (10) years prior to his death and the filed Last Will and Testament almost four (4) years prior to his death; if he sought to change certain bequests, beneficiaries or ownership interests, he had ample opportunity to properly do so during his lifetime. Therefore, plaintiff has satisfied the final requirement for issuance of a preliminary injunction.
Based upon the foregoing, the Court rules as follows:
During the pendency of this action, or until further Order of the Court, defendant is enjoined, restrained and prohibited from entering upon, occupying or in any way interfering with Plaintiff's quiet enjoyment and ownership of premises known as 357 Old Town Road, Setauket, New York, including but not limited to attempting to collect the rent from any tenant or occupant of the premises; removing or disposing of any personal property located in the premises owned by plaintiff or decedent John May; and changing the locks at the subject premises.
The Suffolk County Clerk is directed to vacate and discharge of record the 99 year lease recorded in Liber D00012520 at page 829.
This Order is subject to plaintiff posting an undertaking in the amount of $100,000 pursuant to CPLR § 6312.
A preliminary conference is scheduled for February 7, 2008 at 9:30 a.m. before the undersigned.
The foregoing constitutes the DECISION and ORDER of the Court.