Opinion
102255-2006.
Decided May 14, 2008.
This action arises out of the break-up between the popular hip-hop and movie artist known as "50-Cent" ("defendant") and his long-time girlfriend Shaniqua Tompkins ("plaintiff").
The factual background is taken from the plaintiff's complaint.
The parties' thirteen-year relationship started when they first began dating in 1995. At the time, plaintiff was in college and defendant was unemployed. At some point thereafter, they began living together in plaintiff's apartment in Jamaica, New York.
The parties relocated to Far Rockaway, New York in 1996, while plaintiff was pregnant with their child. In September 1996, defendant informed plaintiff that he would always take care of her, that she "would own everything" he owned, and that she would share in all his earnings equally. The parties then entered into an oral agreement ("Agreement"), whereby defendant promised to aggressively pursue a professional recording career, to provide for and support plaintiff, and to equally share the fruits of his labors and investments with her. He also promised that they would be equal partners in all earnings generated by defendant and divide same equally between them. In return, plaintiff agreed to continue to live and cohabit with defendant, maintain his home, perform other homemaking services for defendant, and accompany him to social and other events so that he could focus his energies on becoming a professional recording artist. The parties orally agreed that they would continue to live together in a common residence and devote their assets and abilities to acquiring and accumulating wealth and property.
From 1997 through 2000, plaintiff honored her obligations by providing homemaking and domestic services, while defendant remained unemployed. Plaintiff paid all of their living expenses, financed various expenses related to defendant's musical career, such as studio recording time, costs for production of demo tapes, tattoos, clothes, and jewelry. Defendant devoted his time and energy exclusively to developing his musical recording career. The parties then entered into a joint venture agreement that established "Rotten Apple Records."
In May of 2000, defendant was shot several times, and spent two weeks in intensive care. Plaintiff slept in a chair beside defendant's hospital bed, and then nursed him back to health.
After defendant's discharge from the hospital, they moved to Pennsylvania to escape the violence in their neighborhood. Although defendant could not perform any work towards his musical career, plaintiff continued to honor her obligations. While in Pennsylvania, defendant reiterated that he would always take care of her and that she would own everything that was his.
In the fall of 2000, the parties moved to an apartment, where plaintiff continued to pay for their living expenses. The defendant paid the rent through monies he received through a publishing contract with Columbia Records. When, in 2002, defendant was unable to pay the rent, plaintiff resumed paying rent, in addition to their living expenses.
Thereafter, from 2002 through 2005, the parties continued living together between residences in Pennsylvania and Farmington, Connecticut. During this period, defendant began realizing profits from his musical career, and plaintiff had unhampered access to his bank accounts in order to pay for their living expenses. Defendant also purchased new vehicles for plaintiff's exclusive use.
In 2005, the parties moved to Bayside, New York, where plaintiff continued to take care of defendant and their home, and perform other homemaking services, while defendant concentrated on his recording career.
In this same year, defendant starred in an autobiographical film, "Get Rich or Die Tryin'." While in the offices of Violator Records in New York City, defendant violently assaulted plaintiff by grabbing her hair, pushing her to the floor, and choking her until she signed a release from any and all claims plaintiff might have against defendant or any other entity in connection with the film.
For the following two years, the parties cohabited together. The parties then entered into an oral agreement to write a book that would have resulted in additional, substantial income to the parties. However, defendant repudiated this agreement.
Finally, in 2006, the parties agreed to purchase a home in Dix Hills, New York, and that the title would be in plaintiff's name. However, at the closing, defendant's attorney advised plaintiff that defendant would not be attending, and that the title would instead be in the defendant's name. Defendant later refused to share with the plaintiff the wealth and assets he accumulated. Defendant also began limiting the amount of money he provided for their living expenses.
In February 2007, defendant came to their home in Dix Hills, began claiming that the house was his and that he could do what he wanted, and then assaulted her. This culminated in a holdover proceeding to evict plaintiff, their child, and plaintiff's child from a previous relationship, from the house in Dix Hills. The Suffolk Housing Court Judge granted an order of eviction and stayed execution until after the return date of plaintiff's instant order to show cause for injunctive relief.
While the holdover proceeding was pending in Suffolk County, plaintiff commenced this action to stay the ensuing eviction order, and for damages for breach of contract and breach of joint venture agreement, for the imposition of a constructive trust concerning the house in Dix Hills, a partition of all of the property acquired throughout their relationship, an accounting, quantum meruit for services performed, damages for unjust enrichment, a declaration of the parties' rights and obligations under the Agreement, specific performance of the Agreement and joint venture, assault and battery, and punitive damages.
Motion
In support of injunctive relief, plaintiff argues that each of her claims is meritorious, and that absent injunctive relief, plaintiff would suffer irreparable harm. It is argued that if the eviction is not stayed, plaintiff and her children would be evicted from their home, resulting in a disruption of their child's school year. The school year ends in June of this year, and it would be almost impossible for plaintiff to locate a home in the area where the parties' child attends school. Further, courts have found that the loss of one's ownership and possessory rights in one's home is irreparable harm in and of itself. The defendant would suffer no prejudice in the event this court were to issue injunctive relief. Thus, the balance of the equities tip in favor of granting the relief requested.
In opposition, defendant maintains that there is no merit to plaintiff's claims. The defendant pays child support pursuant to a Family Court order, which includes a housing allowance. At the Family Court proceedings, plaintiff's own expert established the amount necessary for plaintiff to find suitable, comparable housing, and the Family Court order directs the defendant to pay an amount consistent with the plaintiff's expert's opinion. Therefore, plaintiff has sufficient funds to relocate to another home in the area.
Analysis
A preliminary injunction is a drastic remedy which should only be granted where the movant has demonstrated in the moving papers a clear legal right to the relief demanded based upon the undisputed facts ( see Cohen v Department of Social Servs., 37 AD2d 626, affd 30 NY2d 571). The purpose of this provisional remedy is to maintain the status quo until there can be a full hearing on the merits ( Residential Board of Managers of the Columbia Condominium v Alden, 178 AD2d 121 [1st Dept 1991]). To be entitled to a preliminary injunction, plaintiff must clearly demonstrate: (1) a likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities in their favor ( see W.T. Grant Co. v Srogi, 52 NY2d 496, 517; Aetna Ins. Co. v Capasso, 75 NY2d 860; Borenstein v Rochel Props., Inc., 176 AD2d 171, 172 [1st Dept 1991]).
Likelihood of Success on the Merits
Plaintiff alleges a multitude of legal theories to secure "one-half" of defendant's assets accumulated during their relationship. The merit of each of her claims is discussed in turn.
Breach of Contract
To state a cause of action for breach of contract, the proponent of the pleading must specify the making of an agreement, the performance by that party, breach by the other party, and resulting damages ( Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071, 816 NYS2d 702 [Supreme Court New York County 2006], citing Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). The essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability is predicated, must be alleged ( Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071 [Supreme Court New York County 2006] citing Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995]; and Caniglia v Chicago Tribune-New York News Syndicate Inc., 204 AD2d 233, 234 [1st Dept 1994]).
Plaintiff alleges that defendant agreed to place her name, in addition to his own, on the title to the subject property, so as to entitle her a one-half interest therein. At bottom, plaintiff's breach of contract claim regarding the Dix Hills home is that defendant agreed to buy her a house. However, any agreement for the conveyance of real property must be in writing (General Obligations Law § 5-703[3]). Plaintiff may not succeed on the theory of an express agreement to convey to her an interest in the home in Dix Hills since the agreement, not being in writing, is barred by the Statute of Frauds (Real Property Law, §§ 259 and 259-a). Further, the claim that there was an oral agreement at the time of the purchase of the subject property that plaintiff would be allowed to remain in the house for an indefinite period of time, is also barred by the Statute of Frauds ( Dalmacy v Joseph, 297 AD2d 329, 746 NYS2d 312 [2d Dept 2002] citing General Obligations Law § 5-701; § 5-703).
Nor is the alleged agreement to "write a book," or "to take care of the plaintiff" for some indefinite period of time, in the absence of any definition of "take care of," sufficient to support a claim for breach of contract.
However, with respect to the defendant's agreement to share his investments and profits equally with the plaintiff, plaintiff alleges that in exchange thereof, she agreed to provide, inter alia, homemaking services, and assets and abilities in furtherance of defendant's entertainment career. Plaintiff also alleges that she made various expenditures to further defendant's career, such as providing finances for his studio recording time, costs for production of demo tapes, tattoos, clothes, and jewelry. The Court observes that the New York Court of Appeals stated in Morone v Morone ( 50 NY2d 481, 486), that "while cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law."
In this State, cases of unmarried persons living together who thereafter seek financial recovery frequently run afoul of the theory that a contract founded upon an agreement to live together as man and wife will not be enforced. While one may not claim compensation for having been a paramour, if there are services rendered which are nonsexual in nature and do not arise directly from such a relationship, then such services may be deemed separable, and form the basis for compensation. (Internal citations omitted) . . ."housewifely" services are to be distinguished from such other services as may be rendered during the course of a living-together relationship. . . .
Trimmer v Van Bomel, 107 Misc 2d 201 [Supreme Court New York County 1980]).
This court adopts the view that unmarried cohabitants may lawfully contract concerning their financial and other matters relevant to their relationship, subject to the rules of contract law, except where sexual services constitute the only consideration for the agreement ( see e.g. Wilcox v Trautz, 427 Mass 326, 693 NE2d 141 [unmarried cohabitants may contract concerning financial matters, "even if expressly made in contemplation of a common living arrangement, except to the extent that sexual services constitute the only, or dominant, consideration for the agreement, or that enforcement should be denied on some other public policy ground"]; Suggs v Norris, 88 NC App 539, 364 SE2d 159 [adopting the rule that agreements regarding the finances of an unmarried but cohabiting couple, whether express or implied, are enforceable as long as sexual services or promises thereof do not provide the consideration for such agreements]).
Therefore, the complaint alleges sufficient services rendered by the plaintiff, which are non-sexual in nature and separable from the parties' relationship, such that a breach of contract claim in this regard supports plaintiff's request for an interim stay.
Breach of Joint Venture Agreement
To establish that a joint venture agreement, plaintiff must allege that there was "intent to engage in a certain project, with each joint venturer contributing and sharing an equal amount in investment, profit and loss, proprietary interest, and managerial responsibilities" ( Mitchell v A.F. Roosevelt Ave. Corp., 207 AD2d 388, 615 NYS2d 707 [2d Dept 1994] citing Gramercy Equities Corp. v Dumont, 72 NY2d 560, 565, 534 NYS2d 908). An oral agreement may be sufficient to create a joint venture relationship, unless by its terms, the agreement cannot be performed within one year from making thereof ( Sugar Creek Stores, Inc. v Pitts, 198 AD2d 833, 604 NYS2d 407 [4th Dept 1993] citing Rothfield v Clinger, 91 AD2d 939, 458 NYS2d 5).
The sole venture agreement referred to in the complaint is the purported agreement to establish Rotten Apple Records. However, the complaint is silent as to whether the parties ever agreed to contribute and share an equal amount in investment, profit and loss, proprietary interest, and managerial responsibilities regarding Rotten Apple Records. Except for stating that the parties agreed to establish this record company, there are no facts indicating that they agreed to any of the other elements to create a joint venture. Thus, plaintiff's claim for breach of venture agreement is insufficient to support injunctive relief.
Imposition of a Constructive Trust
While the Statute of Frauds will ordinarily prevent enforcement of an oral agreement to convey an interest in land (General Obligations Law, 5-703), a constructive trust will be impressed, however, when an unfulfilled promise to convey an interest in land induces another, in the context of a confidential or fiduciary relationship, to make a transfer resulting in unjust enrichment ( McGrath v Hilding, 41 NY2d 625 citing Foreman v Foreman, 251 NY 237, 240). As stated by the Court of Appeals, there must be "(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" ( McGrath v Hilding, 41 NY2d 625 , supra, citing Sharp v Kosmalski, 40 NY2d 119, 121, 386 NYS2d 72, 75; accord Vassal v Vassal, 40 AD2d 713, 336 NYS2d 887 [2d Dept 1972], affd., 33 NY2d 533, 347 NYS2d 434; Sinclair v Pursy, 235 NY 245, 252-253).
It may be argued that plaintiff never owned or had an proprietary interest in the Dix Hills property prior to its transfer to defendant, and thus, failed to meet the predicate for the imposition of a constructive trust ( In re Zelnick, 273 AD2d 18, 709 NYS2d 400 [1st Dept 2000] citing In re Wells' Will, 36 AD2d 471, 321 NYS2d 200 [4th Dept 1971] [failure to establish grounds for imposition of a constructive trust, where there was no evidence that claimant had an interest in the property at the time it was transferred]). Courts have held that a party may not impress a constructive trust on real property absent the relinquishment of some interest in the parcel in reliance on a promise to convey ( Bontecou v Goldman, 103 AD2d 732, 733, 477 NYS2d 192 [2d Dept 1984] [plaintiffs failed show they had some interest in the property prior to obtaining the promise that the property would be conveyed, and that this interest was parted with in reliance on the promise]; see also, Miller v Merrell, 53 NY2d 881, 440 NYS2d 620 [defendant can be held a constructive trustee only if the law imposed upon him the obligation, regardless of intent, of acting in relation to the subject property for plaintiffs as well as himself, or in preference to himself]; Levy v Brush, 45 NY 589, 596 [an oral agreement where one party agrees to purchase land, and pay from his own funds the necessary amount for that purpose for the joint benefit of both, the other to reimburse one-half of the money so paid, cannot be enforced in equity; the oral agreement is not a partnership between the parties, and the party refusing to perform does not commit a fraud, as the contract is void, and there has been no part performance or parting with valuable consideration by the other]; Scivoletti v Marsala, 97 AD2d 401, 467 NYS2d 228 [2d Dept 1983] [a constructive trust will be imposed where property is parted with on faith of an oral or implied promise to reconvey, "but none may be imposed by one who has no interest in the property prior to obtaining a promise that such interest will be given to him" error in imposing a constructive trust where there is no indication that plaintiff ever had any prior interest in the house] affd., 61 NY2d 806, 473 NYS2d 949; Rizika v Kowalsky, 207 Misc 254, 138 NYS2d 711 [Supreme Court Oneida County 1954] [an oral agreement among the three persons to purchase the realty as owners in common. Such a tenancy does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property], affd. 285 AD 1009, 139 NYS2d 299 [4th Dept 1955]; Matter of Wells, 36 AD2d 471, 474, 321 NYS2d 200, affd. 29 NY2d 931, 329 NYS2d 322).
Before In re Zelnick was decided in 2000, the First Department expressed an intent to depart from In re Wells' Will and expanded the view of "transfer in reliance" ( see Hira v Bajaj, 182 AD2d 435, 582 NYS2d 197 [1st 1992]).
However, the First Department has also held that the law of constructive trusts is not confined to reconveyance situations, noting case law which "takes a less restrictive view and includes creation of interests in real property within the purview of a "transfer in reliance" for purposes of a constructive trust ( Hira v Bajaj, 182 AD2d 435, 582 NYS2d 197 [1st Dept 1992]). The transfer concept has been extended to instances where funds, time and effort are contributed in reliance on a promise to share in the result ( Lester v Zimmer, 147 AD2d 340, 542 NYS2d 855 [3d Dept 1989] [the transfer concept extends to instances where funds, time and effort are contributed in reliance on a promise to share in the result; plaintiff provided financial support for co-habitant during the period of construction of a dwelling owned by cohabitant's mother, contributed $1,382 for the cost of materials and actually participated in building the house over a two-year period]; see, e.g., Gottlieb v Gottlieb, 166 AD2d 413, 560 NYS2d 477 [2d Dept 1990] [plaintiff alleged that (1) she and the decedent "jointly shopped for, negotiated for and purchased the land upon which the said home was constructed", (2) she and the decedent "jointly planned" and "supervised" the "physical layout and construction of the said home", (3) she "contributed financially to the improvement of, maintenance and upkeep of the said home" and (4) she invested her labor and money in reliance upon the decedent's promise that he would put the deed in both of their names]; Mendel v Hewitt, 161 AD2d 849, 555 NYS2d 899 [3d Dept 1990] [fact that the plaintiff never held any previous interest in the disputed parcel was not fatal to her claim where plaintiff advanced $29,000 for the purchase and some $50,000 for improvements toward the land purchased by defendants]; Spodek v Riskin, 150 AD2d 358, 540 NYS2d 879 [2d Dept 1989] [plaintiff allegedly tendered a $6,000 check and a promissory note in the sum of $44,000, bearing interest at 16%, which defendants accepted; plaintiff commenced his duties as managing agent and, thereafter, furnished additional checks to the defendants in furtherance of the oral agreement]; Washington v Defense, 149 AD2d 697, 540 NYS2d 491 [2d Dept] [plaintiff paid $1,000 toward the downpayment on the property in Freeport; plaintiff did all the necessary preparatory work in obtaining these loans; she obtained a loan on her home in Amityville, the proceeds of which she contributed to the construction of a house in Freeport; she received a gift of $8,000 from her father which she also invested in the Freeport property; plaintiff painted, laid tile, and installed insulation in the house; she invested her labor and money in reliance upon the appellant's promise that he would put the deed in both their names as tenants in common; the couple and the plaintiff's children moved into the Freeport house; she subsequently sold her Amityville house and invested the proceeds from this sale in the Freeport house; plaintiff contributed to the mortgage payments and other household expenses], lv denied, 74 NY2d 609, 545 NYS2d 105; see, e.g., Artache v Goldin, 133 AD2d 596, 600, 519 NYS2d 702 [2d Dept 1987] [constructive trust claim was stated where it was alleged that plaintiff and defendant entered into an express oral partnership agreement under which they agreed to live together and hold themselves out as husband and wife; that plaintiff was to care for the parties' children, perform domestic duties and assist the defendant in the management and administration of his dental practice]; McGrath v Hiding, 41 NY2d 625, 394 NYS2d 603 [where plaintiff tendered funds to improve defendant's property in reliance on his premarital promise that a joint interest in the property would be created, court directed a new trial to explore the nature of the parties' relationship]).
In keeping with the equitable nature of the theory of constructive trust, and with caselaw on this subject, this Court adopts the view that plaintiff need not have had an interest in the subject property prior to its transfer in order to make out a claim for constructive trust. It is alleged that in 2006, plaintiff and defendant both agreed to purchase the home in Dix Hills, specifically because of the excellent school district in which the home was located. Prior to the closing, defendant agreed that the title would bear plaintiff's name. Plaintiff has resided in the Dix Hills home since January 2007, and rendered homemaking and domestic services to maintain their home, in furtherance of defendant's entertainment business. Thus, that plaintiff never held any previous interest in the disputed parcel is not fatal to her claim. The complaint alleges facts sufficient to permit the parties to explore, through discovery, whether plaintiff contributed any finances or labor toward the Dix Hills home to support a claim for constructive trust. Therefore, plaintiff's constructive trust claim sufficiently supports the grant of an interim stay.
Partition of All of Property
Partition actions are governed by Article 9 of the RPAPL, § 901 which provides that a partition action may be brought by one holding or in possession as a tenant in common ( Snyder Fulton Street, LLC v Fulton Interest, LLC, 17 Misc 3d 1104, 851 NYS2d 61 [Supreme Court Kings County 2007]). The party bringing the petition action must have legal title, but it has been held that the possession necessary is not a strict Pedis possessio but a present right to possession ( Garland v Raunheim, 29 AD2d 383, 288 NYS2d 417 [1st Dept 1968] citing Brown v Crossman, 206 NY 471, 100 NE 42). Possession in that sense follows the title. In other words, constructive possession such as the law draws to the title is sufficient for the purposes of maintaining an action in partition ( see Deegan v Deegan, 247 AD 340, 287 NYS 230).
Accounting
An accounting may be ordered when four factors exist: (1) a fiduciary relationship, (2) entrustment of money or property, (3) no other remedy, and (4) a demand and refusal of an accounting ( In re Mary XX., 822 NYS2d 659 {33 AD3d 1066} [3d Dept 2006]; In re Garson, 774 NYS2d 644 {2 Misc 3d 847}[Supreme Court, New York County 2003]). At this juncture, the Court does not address the remedy of an accounting. Quantum Meruit
In order to make out a claim in quantum meruit, plaintiff "must establish (1) the performance of the services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services" ( Guggenheimer v Bernstein Litowitz Berger Grossmann LLP , 11 Misc 3d 926 , 810 NYS2d 880 [Supreme Court New York County 2006]). In light of the above, the Court determines that the complaint sufficiently states a claim for quantum meruit to support an interim stay.
Unjust Enrichment
To establish a claim for unjust enrichment, a plaintiff must establish that he/she performed services for the defendant which resulted in the defendant being unjustly enriched ( Hamlet on Olde Oyster Bay Home Owners Ass'n, Inc. v Holiday Organization, Inc., 12 Misc 3d 1182, citing Clark v Daby, 300 AD2d 732, 751 NYS2d 622 [3d Dept 2002] and Kagan v K-Tel Entertainment, Inc., 172 AD2d 375, 568 NYS2d 756 [1st Dept 1991]). Plaintiff must establish that the services were performed at the request or behest of the defendant. Clark v Daby, supra; Prestige Caterers v Kaufman, 290 AD2d 295, 736 NYS2d 335 [1st Dept 2002] and Lakeville Pace Mechanical, Inc. v Elmar Realty Corp., 276 AD2d 673, 714 NYS2d 338 [2d Dept 2000]). A cause of action for unjust enrichment arises when one party obtains a benefit that in equity and good conscience they should not have obtained or possessed because it rightfully belongs to another ( see, Parsa v State of New York, 64 NY2d 143, 148, 485 NYS2d 27).
The complaint herein appears to allege that plaintiff performed homemaking services and provided financial support during the course of their relationship, towards the advancement of defendant's career. Plaintiff anticipated being compensated in the form of sharing in the fruits of his successes in the entertainment industry. Thus, plaintiff's unjust enrichment claim also sufficiently supports an interim stay.
Specific Performance of the Oral Agreement and the Parties' Joint Venture
The right to specific performance is not automatic, but is available in the court's discretion as an alternative to the award of damages as a means of enforcing a contract when the remedy at law is inadequate ( Pecorella v Greater Buffalo Press, Inc., 107 AD2d 1064, 486 NYS2d 562 [4th Dept 1985] citing Hadcock Motors v Metzger, 92 AD2d 1, 4, 459 NYS2d 634, Huntington Min. Holdings v Cottontail Plaza, 96 AD2d 526, 465 NYS2d 40 [2d Dept 1983] affd, 60 NY2d 997, 471 NYS2d 267, Matter of Burke v Bowen, 40 NY2d 264, 267, 386 NYS2d 654).
In light of this Court's finding that plaintiff failed to allege sufficient facts to support a claim that the parties entered into a joint venture, specific performance of the joint venture agreement is not available to the plaintiff.
Likewise, specific performance of the purported agreement to jointly write a book and to place plaintiff's name on the title to the Dix Hills property, is unavailable. Therefore, plaintiff's claims for specific performance lack merit, and do not support injunctive relief.
Although the Court finds that plaintiff may maintain her claim regarding defendant's alleged agreement to share his investments and profits equally with the plaintiff, the court does not reach the merits of specific performance of such obligation at this juncture.
Assault and Battery
An assault is the intentional placing of another in apprehension of imminent harmful or offensive contact ( Tom v Lenox Hill Hosp., 165 Misc 2d 313 [Supreme Court New York County 1995]; Bunker v Testa, 234 AD2d 1004 [4th Dept1996]). A claim for battery is stated if one alleges bodily contact which is offensive and is made with intent ( Tom v Lenox Hill Hosp., 165 Misc 2d 313 [Supreme Court New York County 1995] citing NY PJI 3:3, 1995 cumulative supp., comment, p. 18). The necessary intent is the intent to make contact, not to do injury ( Tom v Lenox Hill Hosp., 165 Misc 2d 313 citing Villanueva v Comparetto, 180 AD2d 627, 629 [2d Dept 1992]).
To the extent plaintiff's claim for assault and battery rests on the event in 2005 where defendant allegedly grabbed plaintiff's hair, pushed her to the floor, and choked her constituting plaintiff's claim for assault and battery, such claim is time-barred (CPLR § 215(3)).
Furthermore, the claim that defendant came into their home in February 2007 and assaulted her is plainly insufficient to state a claim for assault or battery.
Therefore, the claims of assault and battery are insufficient to support injunctive relief.
Irreparable Harm
To be "irreparable," the injury alleged must be incapable of being adequately compensated in money damages ( George V Restauration S.A. v Little Rest Twelve, Inc., 19 Misc 3d 1125 [Supreme Court New York County,2008] citing OraSure Tech., Inc. v Prestige Brands Holdings, Inc. , 42 AD3d 348 [1st Dept 2007]; Rosenthal v Rochester Button Co., 148 AD2d 375 [1st Dept 1989]). Any forced sale of the Dix Hills home, which houses plaintiff and the parties' child will result in considerable disruption and "loss of family security, both as regards their permanent shelter and the education and neighborhood associations" of the child ( Holmes v W. T. Grant, Inc., 71 Misc 2d 486, 336 NYS2d 601 [Supreme Court Nassau County 1972]).
Balance of the Equities
In view of plaintiff's likelihood of success on some of her claims and the irreparable harm that would result absent injunctive relief, this court is satisfied that the balance of equities tips sufficiently in her favor so as to warrant an interim stay of the execution of the order of eviction.
Conclusion
In light of the foregoing, the court concludes that plaintiff's complaint alleges sufficient facts to support her claim for breach of contract, the imposition of a constructive trust concerning the house in Dix Hills, a partition of same, an accounting, quantum meruit for services performed, damages for unjust enrichment to warrant preliminary injunctive relief.
Therefore, it is hereby
ORDERED that the branch of plaintiff's order to show cause to enjoin and restrain defendant from transferring, encumbering, selling or disposing of the Dix Hills home, and for an order staying the execution of the order of eviction is granted pending a further hearing by this court; the order to show cause is denied in all other respects. And it is further ORDERED that the parties shall comply with the discovery order dated April 30, 2008. And it is further
ORDERED that plaintiff serve a copy of this order with notice of entry upon defendant within 20 days of entry.
This constitutes the decision and order of the Court.