Lazaro v. Fed. Nat'l Mortg. Ass'n

• Decision Date: 23 February 2015
• Docket Number: No. 06873/2014.,06873/2014.
• Citation: 13 N.Y.S.3d 850 (Table)
• Parties: Ana LAZARO, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.
• Court: New York Supreme Court

13 N.Y.S.3d 850 (Table)

Ana LAZARO, Plaintiff

v.FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.

No. 06873/2014.

Supreme Court, Suffolk County, New York.

Feb. 23, 2015.

Susan N. Persaud, PLLC, Mineola, for Plaintff.

Houser & Allison, APC, New York City, for Defendant.

Opinion

THOMAS F. WHELAN, J.

ORDERED that this motion (# 001) by the plaintiff for preliminary injunctive relief precluding the defendant from “foreclosing” on the plaintiff's home and from restricting her access to and ownership of the mortgaged premises is considered under CPLR 6311 and is in all respects denied.

The record reflects that the plaintiff's home was the subject of a foreclosure action commenced in this court in 2010 by a predecessor-in-interest of the plaintiff. A judgment of foreclosure and sale issued therein on August 20, 2012 [Pastoresa, J]. In April of 2011, the plaintiff allegedly entered into a loan modification agreement which was conditioned upon making three successive monthly payments, although the defendant characterizes it as a forbearance agreement. After the second payment was allegedly returned for insufficient funds in June of 2013, the premises were conveyed to the defendant by the referee of sale appointed in the judgment of foreclosure by deed dated July 3, 2013. In December of 2013, the defendant commenced a “hold over” or “eviction” proceeding in the District Court having jurisdiction over the area in which the premises are located.

During the pendency of the District Court action, the plaintiff commenced this action in April of 2014 and immediately moved by order to show cause for the injunctive relief outlined above (see Order dated April 4, 2014 [Gazillo, J.] Granted in such order was a stay of the pending district eviction proceeding and a temporary restraint enjoining the defendant from interfering with the plaintiff's access to the mortgaged premises, pending the determination of this motion. The action was then assigned to the Honorable, Jerry Garguilo, J.S.C., and this motion was adjourned and/or left undecided until the action was transferred to the case inventory of this court on January 2, 2015. The instant motion was re-calendared on the motion calendar of this court for January 30, 2015 and marked submitted on that date. The defendant appeared in opposition by the submission of papers in which the plaintiff's entitlement to the relief requested in this motion is challenged on both procedural an substantive grounds.

For the reasons stated below, the motion is denied

By statutory fiat, “[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” (CPLR 6301 ). Appellate case authorities applying this provision have established that in the absence of a duly commenced underlying action which confers the requisite statutory authority upon the court to grant a preliminary injunction and service of process, the court has no jurisdiction to award such relief (see Hart Island Committee v. Koch 150 A.D.2d 269, 541 N.Y.S.2d 790 [1st Dept 1989] ; Matter of Caruso v. Ward, 146 A.D.2d 486, 487, 536 N.Y.S.2d 447 [1st Dept 1989] ; see also Granelli v. Granelli, 134 A.D.2d 930, 522 N.Y.S.2d 78 [4th Dept 1987] ). Equally well established is the necessity for a pleaded claim for relief that provides one or both of the statutory predicates for the granting of preliminary injunctive relief to the movant (see CPLR 6301 ; BSI, LLC v. Toscano, 70 AD3d 741, 896 N.Y.S.2d 102 [2d Dept 2010] ; Seebaugh v. Borruso, 220 AD3d 573, 632 N.Y.S.2d 800 [2d Dept 1995] ). Although the remedy of a preliminary injunction is available in actions commenced by filing and jurisdiction obtained by service of a summons with notice rather than a summons and complaint, the remedy will be lost if the notice on the face of the summons is insufficient to satisfy due process requirements (see Fairfield Presidential Associates v. Pollins, 85 A.D.2d 653, 445 N.Y.S.2d 229 [2d Dept 1981] ; Hart Island Committee v. Koch 150 A.D.2d 269, supra ).

The substantive measure for the granting of preliminary injunctive relief is the product of case law which unanimously provides that the decision to grant a preliminary injunction is committed to the sound discretion of the court, as the remedy is considered to be a drastic one (see Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44 [1988] ; Norton v. Dubrey, 116 AD3d 1215, 983 N.Y.S.2d 679 [3d Dept 2014] ; Tatum v. Newell Funding, LLC, 63 AD3d 911, 880 N.Y.S.2d 542 [2d Dept 2009] ; Bergen–Fine v. Oil Heat Inst., Inc., 280 A.D.2d 504, 720 N.Y.S.2d 378 [2d Dept 2001] ). To prevail on a motion for preliminary injunctive relief, the movant must clearly demonstrate a likelihood of success on the merits, the prospect of irreparable harm or injury if the relief is withheld and that a balance of the equities favors the movant's position (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 800 N.Y.S.2d 48 [2008] ; Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918 [1990] ; Greystone Staffing, Inc. v. Warner, 106 AD3d 954, 2013 WL 2228792 [2d Dept 2013] ; Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 AD3d 1051, 886 N.Y.S.2d 41 [2d Dept 2009] ; Pearlgreen Corp. v. Yau Chi Chu, 8 AD3d 460, 778 N.Y.S.2d 516 [2d Dept 2004] ). A movant must satisfy each requirement with “clear and convincing evidence” (County of Suffolk v. Givens, 106 AD3d 943, 967 N.Y.S.2d 387 [2d Dept 2013] ; Apa Sec., Inc. v. Apa, 37 AD3d 502, 503, 831 N.Y.S.2d 201 [2d Dept 2007] ). A clear legal right to relief, which is plain from facts presented that are generally undisputed, must be established (see Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 AD3d 1051, supra; Gagnon Bus Co., Inc. v. Vallo Transp., Ltd., 13 AD3d 334, 786 N.Y.S.2d 107 [2d Dept 2004] ; Blueberries Gourmet v. Avis Realty, 255 A.D.2d 348, 680 N.Y.S.2d 557 [2d Dept 1998] ).

Factors militating against the granting of preliminary injunctive relief include: 1) the absence of a jurisdictionally proper predicate claim for injunctive relief (see CPLR 6301 ; BSI, LLC v. Toscano, 70 AD3d 741, 896 N.Y.S.2d 102 [2d Dept 2010] ); 2) that the movant can be fully recompensed by a monetary award or other adequate remedy at law (see Di Fabio v. Omnipoint Communications, Inc., 66 AD3d 635, 636–637, 887 N.Y.S.2d 168 [2d Dept 2009] ; Mar v. Liquid Mgt. Partners, LLC, 62 AD3d 762, 880 N.Y.S.2d 647 [2d Dept 2009] ; Dana Distr., Inc. v. Crown Imports, LLC, 48 AD3d 613, 853 N.Y.S.2d 111 [2d Dept 2008] ; White Bay Enter. v. Newsday, Inc., 258 A.D.2d 520, 685 N.Y.S.2d 257 [1999] ); 3) that the granting of the requested injunctive relief would confer upon the plaintiff the ultimate relief requested in the action (see Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs. 65 AD3d 1051, supra; 35 New York City Police Officers v. City of New York, 34 AD3d 392, ...