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Petitioner Brings Action for Preliminary Injuction



This is an application for a preliminary injunction. The proceeding was commenced by Petitioner by order to show cause and petition seeking a judgment declaring him to be the owner of real property located at Merrick, New York (the Property), or imposing a constructive trust. The order to show cause, which was issued on November 9, 2007, contained a temporary restraining order restraining respondent and/or her agents from transferring, selling or otherwise encumbering the Property and from terminating the tenancy of a brokerage) pending the return date of the order to show cause. Jurisdiction is complete.

On December 5, 2007, the court held a hearing on whether a preliminary injunction should issue. The hearing continued on December 6, 2007 and concluded the following day.

At the close of the hearing, the court vacated from the bench that portion of the temporary restraining order that restrained the respondent and/or her agents from terminating the tenancy of the brokerage. The court issued a written order to that effect on December 11, 2007.

In addition to the pleadings, both sides have submitted several affidavits, as well as memoranda of law, in support of their respective positions. In lieu of oral closing arguments, counsel for each party has submitted a written closing statement with the court’s permission.

The decedent died on August 15, 2007 a resident of Florida, leaving his spouse and four children from a prior marriage. The spouses had a prenuptial agreement under which the wife waived her rights to inherit or elect against the estate or the assets held in the Family Trust.

On October 16, 2007, petitioner filed a petition seeking letters testamentary as the nominated executor of the last will and testament dated June 11, 2007 and to probate the will. Paragraph 9 (a) of the probate petition lists the value of decedent’s improved real property located in New York State as $3,000,000. Paragraph 9 (b) states that the decedent does not have any other testamentary assets in New York State, except for a possible recovery from litigation regarding the transfer of stock in the mortgage brokerage business. On October 16, 2007, the court issued an order granting preliminary letters testamentary.

The Family Trust was executed on June 21, 19941 and was amended and restated on April 3, 2001 as the Total Amendment and Restatement of the Family Trust. Section 4.3 states that after the death of the first to die of either spouse, the surviving trustee was to divide the trust estate into three separate trusts, a survivor’s trust (governed by section 4.4), an exemption trust and a marital trust. Section 6.1 (a) states, in pertinent part, that, upon the deaths of both spouses, the Property would be distributed outright to the son. It is the disposition of the Property that is the subject of the proceeding. It is uncontroverted that title to the Property was never transferred to the trust (EPTL 7-1.18).

The parties agree that title to the Property never passed to the trust and that the Property is therefore not an asset of the trust (EPTL 7-1.18). The parties also agree that New York State law governs since the situs of the Property is New York State (EPTL 3-5.1 [b] [1]). “The validity of an inter vivos trust of real property is determined by the law of the situs. The law of situs also regulates the descent, alienation and transfer of the property, the construction and effect of the instrument, and the effect of transfers and conveyances of interests therein”

To be entitled to a preliminary injunction, the petitioner must establish by clear and convincing evidence: (1) the likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities in his favor. “The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual”. Whether to grant a preliminary injunction lies in the court’s discretion (id.). A preliminary injunction is a drastic remedy that will not be granted unless the petitioner meets the heavy burden of establishing a clear right thereto under the law and the undisputed facts. ” Additionally, it is a remedy that should be used sparingly, “with caution, and only when required by urgent situations or grave necessity, and then upon the clearest evidence”. Although as indicated above, Richard advances several causes of action, the only evidence adduced at the hearing was relative to the constructive trust claim.

The usual elements required for the imposition of a constructive trust are: (1) a confidential or fiduciary relation; (2) a promise; (3) a transfer in reliance thereon; and (4) unjust enrichment, but these criteria are not rigidly applied and “a constructive trust may be erected whenever necessary to satisfy the demands of justice”.

Accordingly, the application for a preliminary injunction restraining the other party and/or her agents from transferring, selling or otherwise encumbering the Property and his application to stay distributions to beneficiaries from the trust pending a determination of this proceeding are denied. The party’s request that the court issue an order directing the Clerk of Nassau County to cancel the lis pendens is denied without prejudice as the request was not properly raised. Even if the request were properly made, however, there does not appear a basis for cancelling it.

The temporary restraining order restraining the other, and/or her agents from transferring, selling or otherwise encumbering the Property is hereby vacated.

The court issued a preliminary conference order after the conclusion of the hearing on December 7, 2007. The parties are directed to adhere to the dates contained in that order.

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