Minzer v. Minzer

• Decision Date: 08 June 2022
• Docket Number: 2020–04434,Index No. 507094/20
• Citation: 206 A.D.3d 721,170 N.Y.S.3d 567
• Parties: Ruchel MINZER, et al., respondents, v. Deborah Rauch MINZER, etc., et al., defendants, Shlomo Noble, appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 721

170 N.Y.S.3d 567

Ruchel MINZER, et al., respondents,

v.Deborah Rauch MINZER, etc., et al., defendants,Shlomo Noble, appellant.

2020–04434

Index No. 507094/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 10, 2022

June 8, 2022

Offit Kurman, New York, NY (Franklyn H. Snitow of counsel), for appellant.

Law Office of Susie Chovev Esq., PLLC, Woodmere, NY, for respondents.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to impose a constructive trust on real property and to recover damages for unjust enrichment, the defendant Shlomo Noble appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated May 29, 2020. The order, insofar as appealed from, granted that branch of the plaintiffs’ motion which was, in effect, for a preliminary injunction enjoining the defendant Shlomo Noble from selling, transferring, or encumbering the real property located at 4701 Fort Hamilton Parkway in Brooklyn, denied those branches of the cross motion of the defendant Shlomo Noble which were pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him and to cancel the notice of pendency filed against the real property located at 4701 Fort Hamilton Parkway in Brooklyn, and denied the application of the defendant Shlomo Noble for an undertaking.

ORDERED that the appeal from so much of the order as denied the application of the defendant Shlomo Noble for an undertaking is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a] ), and leave to appeal has not been granted; and it is further,

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiffs’ motion which was, in effect, for a preliminary injunction enjoining the defendant Shlomo Noble from selling, transferring, or encumbering the real property located at 4701 Fort Hamilton Parkway in Brooklyn, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Shlomo Noble.

In October 2018, the plaintiff 4701 Ft. Hamilton Parkway, LLC (hereinafter the LLC), entered into a contract with the defendant Shlomo Noble for the sale of real property located at 4701 Fort Hamilton Parkway in Brooklyn (hereinafter the subject property). The sale closed on November 28, 2018, and the LLC deeded the subject property to Noble the same day. In April 2020, the LLC and the plaintiff Ruchel Minzer (hereinafter Ruchel), the sole member of the LLC, commenced this action, inter alia, to impose a constructive trust on the subject property and to recover damages for unjust enrichment. The plaintiffs alleged that Noble held title to the subject property as nominee for the LLC, but he thereafter failed to reconvey it to the LLC and had entered into a contract to sell the subject property to a third party.

At the time they commenced this action, the plaintiffs also filed a notice of pendency against the subject property and moved, inter alia, in effect, for a preliminary injunction enjoining Noble from selling, transferring, or encumbering the subject property. Noble opposed the motion and cross-moved, among other things, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him and to cancel the notice of pendency filed against the subject property, contending, inter alia, that Ruchel lacked standing to maintain this action. In an order dated May 29, 2020, the Supreme Court, among other things, granted that branch of the plaintiffs’ motion which was, in effect, for a preliminary injunction enjoining Noble from selling, transferring, or encumbering the subject property and denied those branches of Noble's cross motion which were to dismiss the complaint insofar as asserted against him and to cancel the notice of pendency. The court also denied an application by Noble to condition the preliminary injunction on the plaintiffs’ posting of an undertaking. Noble appeals.

"To be entitled to a preliminary injunction, a movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor" ( Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, 189 A.D.3d 1165, 1166–1167, 138 N.Y.S.3d 542 [internal quotation marks omitted]; see GG Acquisitions, LLC v. Mount Olive Baptist Church of Manhasset, 178 A.D.3d 1023, 1024, 116 N.Y.S.3d 303 ). However, where, as here, "the denial of a preliminary injunction would disturb the status quo and render the final judgment ineffectual, the degree of proof required to establish the element of likelihood of success on the merits should be reduced" ( Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, 189 A.D.3d at 1167, 138 N.Y.S.3d 542 [internal quotation marks omitted]). Although "the purpose of a preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one, which should be used sparingly" ( Soundview Cinemas, Inc. v. AC I Soundview, LLC, 149 A.D.3d 1121, 1123, 53 N.Y.S.3d 157 ; see Matter of Armanida Realty Corp. v. Town of Oyster Bay, 126 A.D.3d 894, 894, 3 N.Y.S.3d 612 ).

Here, the plaintiffs failed to demonstrate a likelihood of success on the merits on the causes of action sounding in unjust enrichment and constructive trust. "Where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded" ( IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 ; see Fernandez v. Abatayo, 172 A.D.3d 821, 822, 100 N.Y.S.3d 290 ; ISS Action, Inc. v. Tutor Perini Corp., 170 A.D.3d 686, 689–690, 95 N.Y.S.3d 298 ; Cortazar v. Tomasino, 150 A.D.3d 668, 670, 54 N.Y.S.3d 89 ). Here, Noble and the LLC entered into a contract for the sale of the subject property. Accordingly, the plaintiffs failed to establish a likelihood of success on the merits on the unjust enrichment cause of action.

"The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment" ( Fakiris v. Fakiris, 192 A.D.3d 993, 994, 141 N.Y.S.3d 326 [internal quotation marks omitted]; see Bekas v. Valiotis, 191 A.D.3d 937, 938, 143 N.Y.S.3d 94 ). "However, these factors, or elements, serve only as a guideline, and a constructive trust may still be imposed even if all four elements are not established" ( Tyree v. Henn, 109 A.D.3d 906, 907–908, 971...