Opinion
Index No. 500316/2018
11-09-2023
Taaffe Asset Corp., Petitioner, v. Donna Grosvenor and Austin Smith, Respondents.
Unpublished Opinion
Aaron D. Maslow, J.
The following numbered papers were read in connection with this application: NYSCEF Doc Nos. 1-54 (all documents filed in this proceeding).
Respondent Austin Smith ("Respondent Smith") has submitted to this Court a proposed order to show cause to bring on a motion seeking the following relief:
(1) pursuant to CPLR 5015 to vacate the judgment rendered on April 13, 2018, and officially recorded on April 18, 2018; (2) to set aside the sheriff's deed dated June 28, 2021 pursuant to RPAPL 231; (3) to obtain a preliminary injunction as per CPLR 6301; and any other relief that the Court deems just and equitable.(NYSCEF Doc No. 40, Proposed OTSC.)
By way of background, this special proceeding was commenced on January 8, 2018, pursuant to CPLR 5227, to direct a turnover of real property owned by Respondent Smith to Petitioner Taaffe Asset Corp. ("Petitioner Taaffe"). Respondent Smith was the owner of the real property located at 529 MacDonough Street, Brooklyn, New York. A judgment on behalf of co-Respondent Donna Grosvenor ("Respondent Grosvenor") was entered in the Kings County Clerk's office against Respondent Smith on December 21, 2016, in the amount of $330,835.00. Prior thereto a judgment on behalf of Wenig Saltiel LLP was entered in the Kings County Clerk's office against Respondent Grosvenor on August 4, 2015, in the amount of $43,656.96, which judgment was thereafter assigned to Petitioner Taaffe. To enforce its acquired judgment against Respondent Grosvenor, Petitioner Taaffe seeks to enforce Respondent Grosvenor's judgment lien against Respondent Smith. (See generally NYSCEF Doc No. 1, Petition; NYSCEF Doc No. 37, Order of Hon. Bernard J. Graham, J.S.C.; NYSCEF Doc No. 41, James J. Quail Aff.)
A judgment in the instant special proceeding was entered on April 18, 2018. It authorized the sheriff to execute on the lien against Respondent Smith by selling the subject property. The property was purchased at auction on June 9, 2021. (See generally NYSCEF Doc No. 15, Judgment; NYSCEF Doc No. 53, Steven Vlock Letter.) The purchaser at the auction, MCD 529 Corp., had commenced an eviction proceeding, and the eviction is impending (see NYSCEF Doc No. 41, James J. Quail Aff ¶ 3).
Respondent Smith's counsel's affirmation asserts that the order to show cause he submitted should be signed inasmuch as an emergency exists due to the impending sheriff's eviction (based on the sheriff's deed emanating from the auction sale), service of the papers commencing this special proceeding having been improperly made on Respondent Smith and the improper advertising of the auction (see id. ¶3, 5-8-13). The proposed order to show cause contains a temporary restraining order against proceeding with the eviction process (see NYSCEF Doc No. 40, Proposed OTSC).
Paragraph 13 of counsel's affirmation is incomplete. It states, "The purchase at auction," without anything following.
This Court notes that subsequent to the judgment in this proceeding having been entered on April 18, 2018, Respondent Smith moved by order to show cause on March 6, 2020, to stay the sheriff's auction and sale of the property (see NYSCEF Doc No. 23, OTSC). In Respondent Smith's counsel's affirmation submitted in support of that motion, it was argued that Respondent Smith was not served with process in the lawsuit which resulted in the judgment lien by Respondent Grosvenor against Respondent Smith (see, e.g., NYSCEF Doc No. 19, Alan J. Sasson Aff ¶ 6). Notably, the issue of Respondent Smith's residence-relevant because Respondent Smith claims he was not served at the proper address in the within proceeding-was raised as an issue: "This is important because Ms. Grosvenor['s] summons identifies Mr. Smith as residing at an alternative residence" (id. ¶ 7). Then-counsel Alan J. Sasson also asserted:
9. Austin Smith is pursuing an order to show cause to vacate such default and to simultaneously stop the sale on the premises known as 529 MacDonough Street, Brooklyn, New York 11233 ("Subject Premises") to which Respondents here seek a Sheriff's auction and sale. See Complaint (NYSECF Doc No. 3) ¶¶ 12-13, Exhibit C.
10. Austin Smith was allegedly served at a different address in that underlying lawsuit by DONNA GROSVENOR and, therefore, the default judgment (the judgment at issue here), should be vacated in its entirety and the relief sought here enjoined until this Court or a Court of Competent Jurisdiction determines that the default judgment obtained against Austin Smith is a nullity.(NYSCEF Doc No. 19, Alan J. Sasson Aff ¶¶ 9-10.).
This is significant because it evidences that Respondent Smith was aware that there was an issue regarding the address or addresses used to serve him in the various lawsuits. Yet, he did not specifically raise service in the instant proceeding when his motion was made in March 2020. He could have done so then.
In any event, Hon. Justice Bernard J. Graham denied Respondent Smith's motion brought on via order to show cause in 2020. Later that year, on November 19, 2020, Justice Graham issued an order denying the motion; the order was entered December 10, 2020. Justice Graham found that the order leading to the judgment herein was granted in favor of Petitioner Taaffe, without opposition. Justice Graham found further that the return date of the motion to stay the sheriff's auction and sale was originally March 21, 2020, but that it was adjourned due to Gov. Cuomo's stay of judicial proceedings (Covid-19 had struck). It was rescheduled for June 11, 2020. Then it was adjourned again to July 23, 2020, and then to September 17, 2020. On the latter date, counsel for Respondent Smith and Petitioner Taaffe appeared remotely for a hearing. Respondent Smith's counsel sought an adjournment. Respondent Smith's motion was marked final for November 19, 2020. On that date, both sides appeared remotely and Respondent Smith's counsel sought another adjournment. The application was denied. Justice Graham considered the arguments for and against the motion. He found no merit to the relief sought. (See generally NYSCEF Doc No. 37, Order.)
CPLR 2217 (b) provides: "(b) Affidavit on ex parte motion. An ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown."
Respondent Smith's counsel's affirmation in support of the within proposed order to show cause states:
38. No prior application for this relief has previously been made for the relief requested herein. A prior attorney did file an application for a stay, which was denied because there was no accompanying application to vacate the underlying judgment.(NYSCEF Doc No. 41, James J. Quail Aff ¶ 38.)
That the motion in 2020 was denied "because there was no accompanying application to vacate the underlying judgment" (id.) is correct. The "underlying judgment" is the one in the action instituted by Respondent Grosvenor against Respondent Smith, which led to the former's $330,835.00 judgment against the latter. This was set forth in Justice Graham's order. But more importantly, Respondent Smith could have raised the issue then of service in the within proceeding. He did not do so. It is clear to this Court that Respondent Smith has delayed for more than three years, if not five, in raising as issue in the within proceeding as to whether he was properly served herein. In 2020, he was aware that there was an issue over his address at which legal process was attempted in the Grosvenor action. He knew this in 2020 as evidenced by his reference to his address in his 2020 motion papers. He did not then make an issue of service in the within proceeding despite having the opportunity to do so. He did not make an issue then over the publication for the sheriff's auction sale.
Respondent Smith may be conflating the failure to raise the issue of service in the Grosvenor action with the failure to raise service of the papers commencing this proceeding. Either way, service of the papers herein was not raised back in 2020, when it could have. Certainly Respondent Smith was aware of this proceeding because he made a motion within it in 2020.
There comes a point at which judicial proceedings must repose and judicial resources must be conserved (see Campbell v Campbell, 107 A.D.3d 929 [2d Dept 2013]). In this proceeding, the time has long passed for the judicial system's adjudicatory function to play a role in the dispute between the parties. It must now culminate in the enforcement process, i.e., eviction, taking place.
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].)
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].)
The balancing of the equities herein lies with Petitioner Taaffe. Moreover, there is no likelihood of success on the merits with respect to a temporary restraining order, a preliminary injunction, vacatur of the judgment, or setting aside the sheriff's deed emanating from the sheriff's auction and sale. No showing has been made by Respondent Smith that Petitioner Taaffe does not have an acquired judgment against Respondent Grosvenor or that Respondent Grosvenor did not have a judgment against Respondent Smith. Moreover, Respondent Smith had a full and fair opportunity to present the arguments advanced here back in 2020, but he failed to do so. "Although there is no express time limit for seeking relief from a judgment pursuant to CPLR 5015 (a) (3), a party is required to make the motion within a reasonable time (see Richardson v Richardson, 309 A.D.2d 795, 796 [2003]; Miller v Lanzisera, 273 A.D.2d 866, 868 [2000]; Green Point Sav. Bank v Arnold, 260 A.D.2d 543 [1999]; City of Albany Indus. Dev. Agency v Garg, 250 A.D.2d 991, 993 [1998]). Here, the appellant's delay of more than five years after entry of the judgment of foreclosure and sale in moving to vacate the judgment was unreasonable." (Aames Capitl Corp v Davidsohn, 24 A.D.3d 474 [2d Dept 2005].) The same analysis applies to the within application seeking the signing of Respondent Smith's proposed order to show cause with stay.
This Court declines to sign the proposed order to show cause.