Opinion
EF004816-2020
04-14-2021
PM, Plaintiff, v. NM, Defendant.
For the Proposed Intervenors: James E. Monroe, Esq., Dupee & Monroe P.C., Goshen, NY For plaintiff Patricia A. McAteer: Robert S. Sunshine, Esq., Pearl River, NY
For the Proposed Intervenors: James E. Monroe, Esq., Dupee & Monroe P.C., Goshen, NY
For plaintiff Patricia A. McAteer: Robert S. Sunshine, Esq., Pearl River, NY
Catherine M. Bartlett, J. Application of DB and HD for an order (a) permitting them to intervene in this matrimonial action, (b) staying the issuance of a Judgment of Divorce herein, and (c) granting them a preliminary injunction restraining specified assets of defendant NM, and (2) the cross motion of plaintiff PM for a declaration that Executive Law § 632-a is unconstitutional.
It is ORDERED that the motions are disposed of as follows:
I. Factual and Procedural Background
This is an action for divorce. Plaintiff PM and defendant NM, formerly a police officer employed by the NYC Police Department, were married on March 23, 1998. There are three children of the marriage, presently aged 17, 13 and 9. On August 23, 2017, NM was arrested on charges that he had sexually abused DB and HD over a period of years. On April 11, 2018, he pleaded guilty to two counts of Rape in the First Degree and was sentenced to incarceration for a period of not less than 18 years.
A. The Nassau County CVA Lawsuit
On March 13, 2020, DB and HD commenced an action against NM under the Child Victims Act seeking compensation for their injuries. The action is pending before the Hon. Steven M. Jaeger in Supreme Court, Nassau County. On August 5, 2020, Judge Jaeger issued an order directing PM and NM and specified third parties to show cause why a temporary restraining order should not be issued pursuant CPLR § 6313 and Executive Law § 632-a against personal and real property of the M's. Judge Jaeger granted interim relief, as follows:
ORDERED, that pending the hearing of this motion, NM, PM, the New York State Deferred Compensation Plan (aka 457 Plan); the Lieutenants Benevolent Association of the City of New York; the New York City Police Pension Fund; and the New York State Department of Corrections and Community Supervision Inmate Accounts are forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any property in defendant NM's name, title, possession, custody or control in which the aforementioned garnishees know or have reason to believe that defendant NM has an interest, or pay over or otherwise dispose of any debts said garnishees owed to the defendant in particular, but not limited to,
Certain real property located at ... New York ...;
Certain personal property contained within a pension in NM's name with the
Lieutenants Benevolent Association of the City of New York;
Certain personal property contained within a pension in NM's name with the New York City Police Pension Fund; and
Certain personal property contained within a commissary fund in NM's name with the New York State Department of Corrections and Community Supervision Commissary.
Approximately one week later, on August 13, 2020, Judge Jaeger vacated a portion of the interim relief — to wit, that pertaining to NM's NYC police pension — as follows:
ORDERED, that the portion of the temporary restraining order dated August 5, 2020 that restrained "certain personal property contained within a pension in NM's name with the New York City Police Pension Fund" is vacated effective this date, pending further Order of the Court.
B. The Matrimonial Action and Proposed Intervenors’ Application for a Stay of Judgment of Divorce and Restraint of Defendant's Property
The above captioned action for divorce was commenced on August 31, 2020. Presently pending before this Court is PM's application for a Judgment of Divorce based on a marital settlement agreement entered into by NM and PM on July 29, 2020. By Amended Order to Show Cause, DB and HD seek an order:
(1) permitting them to intervene in this matrimonial action;
(2) staying the issuance of the Judgment of Divorce herein; and
(3) granting them a preliminary injunction restraining assets of defendant husband NM.
The Proposed Intervenors originally sought to restrain NM's assets by means of an order of attachment pursuant to CPLR § 6201. However, since the remedy of attachment is not available in matrimonial actions ( see, id. ; Saladino v. Saladino, 103 A.D.3d 873, 960 N.Y.S.2d 160 [2d Dept. 2013] ), they withdrew that application and seek instead a preliminary injunction.
More specifically, DB and HD seek an order:
a. Permitting DB and HD to intervene as third-party plaintiffs pursuant to CPLR §§ 1012(a)(3) or 1013 ;
b. Staying the issuance of a judgment of divorce and a determination as to the division and/or rights to marital assets and/or obligations to pay spousal maintenance with regards to assets and/or property owned, held devised and/or transferred as between plaintiff PM and defendant NM until such a time as a determination has been made by the Court as to whether Intervenors/Crime Victims DB and HD possess superior claim(s) to such assets and/or property held, owned and/or titled to NM as specified under Executive Law § 632-a(1)(c) & (6)(a) ;
c. Granting Intervenors/Crime Victims DB and HD a preliminary injunction restraining plaintiff PM and defendant NM; the New York City Deferred Compensation Plan (a/k/a 457 Plan); the Lieutenant's Benevolent Association of the City of New York; the New York City Police Pension Fund; the New York State Department of Corrections and Community Supervision; and its employees and assigns from in any way disbursing, distributing, encumbering or assigning such funds, assets and/or properties except those sums which constitute child support and earned income until such a time as the litigation brought by the Intervenors/Crime Victims ... is finally determined as authorized
by Executive Law § 632-a(6) and CPLR §§ 6301 & 5205(k)....
In their "Proposed Intervenor Third-Party Complaint," DB and HD invoke Executive Law § 632-a. They contend that Section 632-a entitles them to a stay of the matrimonial action and a preliminary injunction restraining NM's assets pending a final determination in their Child Victims Act lawsuit against him. They seek this relief in order to prevent the equitable distribution of marital property between NM and PM pursuant to the Judgment of Divorce — that is, to prevent PM's inchoate interest in marital property from ripening into a vested right of ownership. According to the Proposed Intervenors, Executive Law § 632-a entitles them, as crime victims, to freeze those marital assets prior to securing a judgment against NM so that the assets remain available to satisfy a prospective judgment in their Child Victims Act lawsuit.
II. Legal Analysis
A. Executive Law § 632-a
Determination of the issue before the Court requires an exposition of the tortured history of Executive Law § 632-a. The statute, nicknamed the "Son of Sam" Law, was originally enacted in 1977 to permit crime victims to recover any profits earned by convicted criminals as a result of their crimes. The statute was declared unconstitutional by the United States Supreme Court in Simon & Schuster, Inc. v. Members of NY State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). A new version of Section 632-a was enacted in 1992, and substantively amended in 2001. Minor amendments thereafter made in 2010 and 2011 have no bearing on the case at bar.
1. The Original "Son of Sam" Law
Executive Law § 632-a (L. 1977, ch. 823) was entitled "[d]istribution of moneys received as a result of the commission of crime." In substance, the statute provided as follows:
(a) Anyone contracting with a person "accused of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions or emotions regarding such crime, shall pay over to the [crime victims] board any moneys which would otherwise, by the terms of such contract, be owing to the person so convicted ..."
The reference is to the New York State Crime Victims Board, now known as the New York State Office of Victim Services.
( Executive Law § 632-a[1] )
(b) "The [crime victims] board shall deposit such moneys in an escrow account for the benefit of and
payable to any victim of crimes committed by such person, provided that such person is eventually convicted of the crime and provided further that such victim, within 5 years of the date of the crime, brings a civil action in a court of competent jurisdiction and recovers a money judgment against such person ..." ( Id., § 632-a[1] )
This statute, per the Second Department in Barrett v. Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (2d Dept. 1979), created a new in rem cause of action directed exclusively to the escrow account, funded by profits of the crime, maintained by the Crime Victims Board:
... here the Legislature has created a new cause of action pointed, as the title of the section indicates, towards "Distribution
of moneys received as a result of the commission of crime", and in connection therewith has created its own Statute of Limitations. Although the action here is generally grounded on assault and wrongful imprisonment it is based on a statute creating a new in rem cause of action that is not limited to these willful torts but more generally "to any victim of crimes committed by (the accused)". The Legislature had the right to provide for the same limitation period, no matter what the crime, where the victim seeks the proceeds from listed sources that would otherwise be retained by the criminal....
However, a caveat must be noted. There is no question here that the one-year limitation of CPLR 215 (subd. 3 ) barred the traditional in personam actions for assault and false imprisonment. Accordingly, any judgment that may be recovered by plaintiff should be deemed one in rem and be limited by the court to a recovery of the pro rata amount which is found to be payable to him from the escrow account held by the Crime Victims Compensation Board for the benefit of all the victims of the defendant's crime and such judgment should not be deemed a judgment in personam against any other assets of the defendant.
Barrett v. Wojtowicz, supra, 66 A.D.2d at 615, 414 N.Y.S.2d 350 (emphasis added).
2. The 1992 Statute
Executive Law § 632-a (L. 1992, ch. 618, § 10) provided in substance as follows:
(a) Anyone who "knowingly contracts for, pays, or agrees to pay, any profit from a crime ... to a person charged with or convicted of that crime shall
give written notice to the crime victims board of the payment, or obligation to pay as soon as practicable after discovering that the payment or intended payment is a profit from a crime." ( Executive Law § 632-a[2][a] )
(b) "The board, upon receipt of notice of a contract, an agreement to pay or payment of profits of the crime shall notify all known victims of the crime of the existence of such profits at their last known address." ( Id., § 632-a[2][b] ).
(c) "... any crime victim shall have the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which he or she is a victim ... within three years of the discovery of any profits of the crime.... Any damages awarded in such action shall be recover-able only up to the value of the profits of the crime...." ( Id., § 632-a[3] )
(d) "Upon filing an action pursuant to subdivision 3 of this section, the victim shall give notice to the crime victims board of the filing by delivering a copy of the summons and complaint to the board. The victim may also give such notice to the board prior to filing the action so as to allow the board to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action." ( Id., § 632-a[4])
(e) "Upon receipt of a copy of a summons and complaint, the board shall immediately take such actions as are necessary to: (a) notify all other known victims of the crime of the alleged existence of profits of a crime ... (b) publish ... a legal notice ... advising any crime victims of the existence of profits of a crime... (c) avoid the wasting of the assets identified in the complaint as the newly discovered profits of the crime, in any manner consistent with subdivision 6 of this section." ( Id., § 632-a[5])
(f) "The board, acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional
remedies that are also otherwise available to the plaintiff. (a) The provisional remedies of attachment, injunction,
receivership and notice of pendency available to the plaintiff under the Civil Practice Law and Rules, shall also be available to the board in all actions under this section. (b) ...." ( Id., § 632-a[6])
Unlike the original Son of Sam Law, which required the payment of profits of a crime to the Crime Victims Board, the 1992 version of the statute provided for notice to the Board of a payment or intended payment of such profits and authorized the Board to take action "to avoid the wasting of the assets" by resorting to available provisional remedies. Construing the 1992 statute, the First Department in N.Y.S. Crime Victims Board v. T.J.M. Productions, Inc., 265 A.D.2d 38, 705 N.Y.S.2d 320 (1st Dept. 2000) wrote:
It is clear that the amended Son of Sam Law does not provide any new remedies, but consigns the victim, and the Crime Victims Board acting on behalf of the crime victim and other victims, to the remedies already available to the plaintiff under the Civil Practice Law and Rules ....
The Son of Sam Law, as revised, grants no additional substantive remedies to the crime victim but provides that the Crime Victims Board will lend assistance by acting to avoid the wasting of assets.
Id., 265 A.D.2d at 45, 705 N.Y.S.2d 320 (emphasis added). In another respect, the 1992 statute was similar to the original Son of Sam Law: it limited the plaintiff's recovery to "the value of the profits of the crime."
3. The 2001 Statute
Executive Law § 632-a (L. 2001, ch. 62, § 1) modified the 1992 Son of Sam Law in two critical respects.
First, the 2001 Law encompasses not only profits of a crime, but "any funds of a convicted person", which is statutorily defined to mean "all funds and property received from any source by a person convicted of a specified crime, ... excluding child support and earned income." See, Executive Law § 632-a(1)(c).
Second, the 2001 Law eliminated the provision in Executive Law § 632-a(3) that "[a]ny damages awarded in such action shall be recoverable only up to the value of the profits of the crime." There is no extant limitation on a plaintiff's recovery in a cause of action brought under Executive Law § 632-a(3).
In all other material respects, the 2001 Law is the same as the 1992 law. It is this 2001 version of the Son of Sam Law (with immaterial amendments subsequently enacted in 2010 and 2011) that governs the proceedings herein.
B. Preliminary Injunctions
CPLR § 6301 provides in pertinent part:
A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff....
In Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 708 N.Y.S.2d 26, 729 N.E.2d 683 (2000), the Court of Appeals held that preliminary injunctions are not available to unsecured creditors to restrain a debtor's asset transfers during the pendency of an action for money damages . The Court wrote:
In applying provisional equitable remedies under civil procedure codes, from as early as 1892 in Campbell v. Ernest, 64 Hun. 188, 19 N.Y.S. 123 [(1892)], our courts have consistently refused to grant general creditors a preliminary injunction to restrain a debtor's asset transfers that allegedly would defeat satisfaction of any anticipated judgment.
In Campbell v. Ernest, just as here, plaintiff averred that the "defendant herein will, during the pendency of this action, dispose of his property *** with intent to defraud the plaintiff herein, and to render nugatory any proceeding or effort by this plaintiff to obtain payment of his claim in this action " ( id., at 189 ...). At the time, Section 604(2) of the Code of Civil Procedure authorized a preliminary injunction where the "defendant, during the pendency of the action, threatens or is about to remove or dispose of his property, with intent to defraud the plaintiff." The Campbell court held that Section 604(2) did not apply "to an action of this character, where a moneyed judgment only is sought" ( id., at 192 ...). Rather, provisional injunctive relief was limited to equitable actions where the
defendant threatened to violate the rights of the plaintiff " respecting the subject of the action , which would tend to render the judgment ineffectual" ( id. ...). Campbell explained that, in a pure contract money action, there is no right of the plaintiff in some specific subject of the action; hence, no prejudgment right to interfere in the use of the defendant's property; and no entitlement to injunctive relief pendente lite.
"In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff's rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same " ( id. ...).
More than 100 years after the Campbell v. Ernest decision, the United States Supreme Court, in Grupo Mexicano de Desarrollo v. Alliance Bond Fund [Inc.] 527 U.S. 308 [119 S.Ct. 1961, 144 L.Ed.2d 319 (1999)] ... came to the very same conclusion — that an unsecured creditor suing to collect a debt was not entitled to preliminary injunctive relief to prevent the debtor's dissipation of assets prior to judgment....
.... Precisely as the New York court reasoned in Campbell , the Supreme Court majority in Grupo Mexicano concluded that no provisional injunctive remedy was available because of "the substantive rule that a general creditor (one without a judgment) had no cognizable interest, either at law or in equity, in the property of his debtor, and therefore could not interfere with the debtor's use of that property" ( id., at 318-320 ...).
It is well worth noting that, in support of that holding, Justice Scalia, writing for the majority, invoked a venerable New York authority on general principles of equity jurisdiction:
"As stated by Chancellor Kent: ‘The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor's rights’ " ( id., at 318-22, 119 S.Ct. 1961 ...).
Our courts have uniformly followed the precept of Campbell v. Ernest, supra,
both before and after enactment of the CPLR [cit.om.].
Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, supra, 94 N.Y.2d at 545-547, 708 N.Y.S.2d 26, 729 N.E.2d 683 (italics in original).
It appears, then, that Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, supra , would preclude the issuance of a preliminary injunction restraining NM's asserts during the pendency of the Child Victims Act lawsuit to recover monetary damages only. Query whether, Credit Agricole Indosuez notwithstanding, Executive Law § 632-a authorizes the issuance of a preliminary injunction at the behest of either (i) the Crime Victims Board (i.e., Office of Victim Services, hereinafter "OVS"), or (ii) the Proposed Intervenors?
C. The Availability Of Preliminary Injunctive Relief
Under Executive Law § 632-a
1. At the Behest of OVS
Executive Law § 632-a(5)(c) provides in pertinent part:
Upon receipt of a copy of a summons and complaint, [OVS] shall immediately take such actions as are necessary to ... (c) avoid the wasting of the assets identified in the complaint as the newly discovered profits of the crime or as funds of a convicted person, in any manner consistent with subdivision 6 of this section.
Executive Law § 632-a(6) provides in pertinent part:
[OVS], acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff. (a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the Civil Practice Law and Rules, shall also be available to [OVS] in all actions under this section.
Construing these provisions in N.Y.S. Crime Victims Board v. T.J.M. Productions, Inc., 265 A.D.2d 38, 705 N.Y.S.2d 320 (1st Dept. 2000), the First Department observed that "[i]t is clear that the amended Son of Sam Law does not provide any new remedies, but consigns the victim, and the Crime Victims Board [i.e., OVS] acting on behalf of the crime victim and other victims, to the remedies already available to the plaintiff under the Civil Practice Law and Rules." Id., at 45, 705 N.Y.S.2d 320.
The Third Department did not find the matter so clear, and ruled to the contrary in New York State Crime Victims Board ex rel. Organek v. Harris, 68 A.D.3d 1269, 891 N.Y.S.2d 175 (3d Dept. 2009). That Court wrote:
Respondent's argument that injunctive remedies are not available to [OVS] because they would not be available to a plaintiff suing for money damages ( see CPLR 6301 ) is unpersuasive. While it is true that such remedies are generally unavailable in actions for damages ( see Credit Agricole Indosuez v. Rosslyskiy [Rossiyskiy] Kredit Bank ...), a crime victim does not stand in the same shoes as a potential ordinary creditor. Indeed, the Legislature went to great lengths to provide avenues to allow crime victims to recover from the convicted persons for the victim's damages resulting from the crimes. Thus, the interpretation of the statute urged upon by respondent to prevent [OVS] from obtaining injunctive relief pending the outcome of such a proceeding would render meaningless the provisions bestowing such authority upon [OVS] and would defeat the very purpose of the statute ( see Executive Law § 632-a[6] ; see generally McKinney's Cons. Laws of NY, Book 1, Statutes §§ 111, 144;
Matter of SIN, Inc. v. Department of Fin. of City of NY, 71 N.Y.2d 616, 621-622 [528 N.Y.S.2d 524, 523 N.E.2d 811] [1988] ; Matter of Lewis Family Farm, Inc. v. New York State Adirondack Park Agency, 64 A.D.3d 1009, 1013-1014 [2009] )....
Harris, supra, 68 A.D.3d at 1271-72, 891 N.Y.S.2d 175.
The statute's purport is indeed unclear:
(1) OVS is required to take action "to avoid the wasting of the [convicted criminal's] assets ..." See, Executive Law § 632-a(5)(c).
(2) OVS's actions in this regard may be exercised "in any manner consistent with subdivision 6 of this section." See, id.
(3) Subdivision 6 accords OVS "the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff. " See, id., § 632-a(6).
(4) Subdivision 6 further provides that " [t]he provisional remedies of ... injunction ... available to the plaintiff under the Civil Practice Law and Rules, shall also be available to [OVS] in all actions under this section. " See, id., § 632-a(6)(a).
(5) However, under longstanding New York law, reaffirmed by the Court of Appeals in Credit Agricole Indosuez v. Rosslyskiy [Rossiyskiy] Kredit Bank, supra , a preliminary injunction is not available to the plaintiff in an action for money damages.
In other words, Executive Law § 632-a does, and does not, authorize OVS acting on behalf of crime victims to apply for a preliminary injunction.
In frank recognition of this conflict, the Harris Court resorted to McKinney's Statutes §§ 111 and 144, which state:
The courts may in a proper case indulge in a departure from literal construction and will sustain the legislative intention although it is contrary to the literal letter of the statute.
Statutes will not be construed to render them ineffective.
Harris, supra, 68 A.D.3d at 1271, 891 N.Y.S.2d 175. Departing from the language the Legislature actually employed in the Son of Sam Law in order to effectuate what it conceived to be the Legislature's intent, the Harris Court resolved the conflict by holding that Executive Law § 632-a authorizes OVS to apply for a preliminary injunction even though that provisional remedy is not available to the crime victim herself. That is precisely how the Third Department itself has construed Harris.
In Waldman v. State of New York, 163 A.D.3d 1114, 81 N.Y.S.3d 601 (3d Dept.), lv. denied 32 N.Y.3d 910, 2018 WL 6176224 (2018), the Third Department wrote:
OVS is empowered to "avoid the wasting of" the funds by applying for provisional remedies that would ordinarily be unavailable to an individual suing for money damages...
Waldman, supra, 163 A.D.3d at 1115, 81 N.Y.S.3d 601 (citing Harris ).
2. At the Behest of the Proposed Intervenors
Harris and its progeny are of no avail to the Proposed Intervenors. The Third Department has consistently followed Harris in upholding awards of preliminary injunctive relief granted at the behest of OVS. See, Waldman v. State of New York, supra ; N.Y.S. Office of Victim Services v. Vigo, 162 A.D.3d 1335, 1336-37, 81 N.Y.S.3d 232 (3d Dept. 2018) ; N.Y.S. Crime Victims Board v. Sookoo, 77 A.D.3d 1227, 1228, 909 N.Y.S.2d 823 (3d Dept. 2010). However, Proposed Intervenors acknowledge that they have not invoked the assistance of OVS by giving notice of their lawsuit to OVS in accordance with Executive Law § 632-a[4]. Moreover, they cite no authority — and the Court is aware of none — entitling them to a preliminary injunction in contravention of Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, supra .
A review of extant authority yields the following.
The First Department, as noted above, has held that the Son of Sam Law creates no provisional remedies beyond those already available to plaintiffs under the Civil Practice Law and Rules. See, N.Y.S. Crime Victims Board v. T.J.M. Productions, Inc., supra, 265 A.D.2d 38, 45, 705 N.Y.S.2d 320 (1st Dept. 2000).
The Second Department has yet to address the issue. In Thompson v. 76 Corp., 54 A.D.3d 844, 865 N.Y.S.2d 233 (2d Dept. 2008), Supreme Court, Kings County issued a preliminary injunction at the behest of a crime victim in a Section 632-a case, but the Second Department held that the question of its propriety was not before the Court since the order granting it had not been appealed. See, id., 54 A.D.3d at 845, 865 N.Y.S.2d 233. Kane v. Galtieri, 122 A.D.3d 582, 996 N.Y.S.2d 78 (2d Dept. 2014), a police pension case upon which the Proposed Intervenors rely, is not apropos because it involved a pre-judgment attachment , not a preliminary injunction. See, id., at 584-585, 996 N.Y.S.2d 78.
The pertinent Third Department authority is exclusively concerned with provisional remedies issued at the behest of the OVS; in not one case was a preliminary injunction awarded at the behest of an individual crime victim. See, Waldman v. State of New York, supra ; N.Y.S. Office of Victim Services v. Vigo, supra ; N.Y.S. Crime Victims Board v. Sookoo, supra ; N.Y.S. Crime Victims Board ex rel. Organek v. Harris, supra ; N.Y.S. Crime Victims Board v. Mitchell, 12 A.D.3d 870, 784 N.Y.S.2d 740 (3d Dept. 2004) ; N.Y.S. Crime Victims Board v. Jackson, 4 A.D.3d 710, 772 N.Y.S.2d 419 (3d Dept. 2004).
Those cases are, of course, predicated on Executive Law § 632-a ; and Section 632-a, insofar as it addresses the issue of provisional remedies, concerns only OVS's authority to take action to prevent the wasting of a convicted criminal's assets. See, id., § 632-a(4)(5c)(6). The statute neither expands nor contracts individual crime victims’ rights to pursue provisional remedies on their own. Those rights are defined instead by the Civil Practice Law and Rules.
Therefore, the Proposed Intervenors’ reliance on Harris and its progeny is grievously misplaced. Neither is their cause advanced by Prindle v. Guzy , 179 A.D.3d 1169, 117 N.Y.S.3d 326 (3d Dept. 2020), another police pension case. Prindle involved not a pre-judgment preliminary injunction but a post-judgment restraining notice issued pursuant to CPLR § 5222(b). As such, it is not apropos.
Accordingly, the matter before the Court turns on whether CPLR § 6301, as interpreted by the Court of Appeals in Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, supra , authorizes the issuance of a preliminary injunction at the Proposed Intervenors’ behest.
CPLR § 6301, once again, provides that "[a] preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action , and tending to render the judgment ineffectual ..."
As to "the subject of the action", the Court of Appeals in Credit Agricole Indosuez wrote:
The Campbell court held that Section 604(2) did not apply "to an action of this character, where a moneyed judgment only is sought" ( id., at 192 ...). Rather, provisional injunctive relief was limited to equitable actions where the defendant threatened to violate the rights of the plaintiff " respecting
the subject of the action , which would tend to render the judgment ineffectual" ( id. ...). Campbell explained that, in a pure contract money action, there is no right of the plaintiff in some specific subject of the action; hence, no prejudgment right to interfere in the use of the defendant's property; and no entitlement to injunctive relief pendente lite.
"In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff's rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same " ( id. ...).
Credit Agricole Indosuez, supra, 94 N.Y.2d at 545-546, 708 N.Y.S.2d 26, 729 N.E.2d 683. However, where a lawsuit involves claims by a plaintiff to a specific fund , that fund may rightly be regarded as "the subject of the action", making a preliminary injunction appropriate under the express wording of CPLR § 6301.
See, id., 94 N.Y.2d at 548, 708 N.Y.S.2d 26, 729 N.E.2d 683.
The original Son of Sam Law, as construed by the Second Department in Barrett v. Wojtowicz, supra, 66 A.D.2d 604, 414 N.Y.S.2d 350 (2d Dept. 1979), created an in rem action involving (1) the creation of a specific fund compromised of profits from a crime, and (2) recovery by crime victims exclusively from that fund. See, Executive Law § 632-a (L. 1977, ch. 823); Barrett v. Wojtowicz, supra, 66 A.D.2d at 615, 414 N.Y.S.2d 350. That specific fund being the subject of the statutory action, preliminary injunctive relief would be authorized by CPLR § 6301.
However, as set forth hereinabove ( see, Point IIA), the original Son of Sam Law no longer exists, and its replacement has been extensively amended to eliminate all trace of the original in rem action. The present Son of Sam Law encompasses not only profits of a crime, but "all funds and property received from any source by a person convicted of a specified crime" ( see, Executive Law § 632-a [1c][2] ); and the crime victim's recovery on the cause of action created by Executive Law § 632-a(3) is no longer limited to any specific fund, such limitation having been eliminated by amendment in 2001 ( see, Executive Law § 632-a [L. 2001, ch. 62, § 1]) Moreover, as the cases make clear, even the exclusion of "child support and earned income" from the statutory definition of "funds of a convicted person" creates no limitation on the crime victims’ ability to recover on the cause of action created by Executive Law § 632-a(3) :
The distinction between earned and unearned income is relevant only to determine whether [OVS] must be notified, and has no effect on the ability of a crime victim or victim's representative to recover such income in a civil action.
N.Y.S. Office of Victim Services v. Vigo, supra, 162 A.D.3d 1335, 1336, 81 N.Y.S.3d 232 (3d Dept. 2018) ; N.Y.S. Crime Victims Board v. Sookoo, supra, 77 A.D.3d 1227, 909 N.Y.S.2d 823 (3d Dept. 2010).
In no meaningful sense, then, is there any specific fund that is the subject of the Proposed Intervenors’ action here. Accordingly, preliminary injunctive relief is not authorized by CPLR § 6301. D. Conclusion
N.Y.S. Crime Victims Board v. Majid, 193 Misc. 2d 710, 749 N.Y.S.2d 837 (Sup. Ct. Albany Co. 2002) involved the Crime Victim Board's application for a preliminary injunction with respect to a criminal's prison account. Referencing Barrett v. Wojtowicz, supra , the Majid Court suggested that the prison account could be deemed the "subject of the action" such that preliminary injunctive relief was available under Credit Agricole Indosuez, supra . See, id., 193 Misc. 2d at 715, 749 N.Y.S.2d 837. However, (1) the Majid Court did not take into account the wholesale revisions of the Son of Sam Law discussed above, and (2) the Third Department has not embraced the Majid Court's analysis. See, Waldman v. State of New York, supra ; N.Y.S. Crime Victims Board ex rel. Organek v. Harris, supra. This Court declines to follow Majid here.
In view of the foregoing, the Proposed Intervenors’ application for an order permitting them to intervene in this matrimonial action, staying the issuance of the Judgment of Divorce herein, and granting them a preliminary injunction restraining assets of defendant NM is denied. Accordingly, the Court need not address plaintiff PM's cross motion for an order declaring Executive Law § 632-a unconstitutional.
It is therefore
ORDERED, that the motion of Proposed Intervenors DB and HD is denied in its entirety, and the stay of this action is vacated, and it is further
ORDERED, that the cross motion of plaintiff PM is denied as moot.
The foregoing constitutes the decision and order of the Court.