Opinion
06873/2014
02-23-2015
Ana Lazaro, Plaintiff, v. Federal National Mortgage Association, Defendant.
SUSAN N. PERSAUD, PLLC Atty. for Plaintff 220 Old Country Rd. Mineola, NY 11501 HOUSER & ALLISON, APC Attts. For Defendant 60 East 42nd Street Suite 1148 New York, NY 10165
SUSAN N. PERSAUD, PLLC
Atty. for Plaintff
220 Old Country Rd.
Mineola, NY 11501
HOUSER & ALLISON, APC
Attts. For Defendant
60 East 42nd Street Suite 1148
New York, NY 10165
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 AD2d 269, 541 NYS2d 790 [1st Dept 1989]; Matter of Caruso v Ward , 146 AD2d 486, 487, 536 NYS2d 447 [1st Dept 1989]; see also Granelli v Granelli , 134 AD2d 930, 522 NYS2d 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 NYS2d 102 [2d Dept 2010]; Seebaugh v Borruso , 220 AD3d 573, 632 NYS2d 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 AD2d 653, 445 NYS2d 229 [2d Dept 1981]; Hart Island Committee v Koch 150 AD2d 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 NY2d 748, 536 NYS2d 44 [1988]; Norton v Dubrey , 116 AD3d 1215, 983 NYS2d 679 [3d Dept 2014]; Tatum v Newell Funding , LLC , 63 AD3d 911, 880 NYS2d 542 [2d Dept 2009]; Bergen-Fine v Oil Heat Inst ., Inc., 280 AD2d 504, 720 NYS2d 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 NYS2d 48 [2008]; Aetna Ins. Co. v Capasso , 75 NY2d 860, 862, 552 NYS2d 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 NYS2d 41 [2d Dept 2009]; Pearlgreen Corp. v Yau Chi Chu , 8 AD3d 460, 778 NYS2d 516 [2d Dept 2004]). A movant must satisfy each requirement with "clear and convincing evidence" ( County of Suffolk v Givens , 106 AD3d 943, 967 NYS2d 387 [2d Dept 2013]; Apa Sec ., Inc. v Apa , 37 AD3d 502, 503, 831 NYS2d 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 NYS2d 107 [2d Dept 2004]; Blueberries Gourmet v Avis Realty , 255 AD2d 348, 680 NYS2d 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 NYS2d 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 NYS2d 168 [2d Dept 2009]; Mar v Liquid Mgt. Partners , LLC , 62 AD3d 762, 880 NYS2d 647 [2d Dept 2009]; Dana Distr ., Inc. v Crown Imports , LLC , 48 AD3d 613, 853 NYS2d 111 [2d Dept 2008]; White Bay Enter. v Newsday , Inc., 258 AD2d 520, 685 NYS2d 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, 826 NYS2d 22 [1st Dept 2006]; SHS Baisley , LLC v Res Land , Inc., 18 AD3d 727, 795 NYS2d 690 [2d Dept. 2005]); or 4) that an alteration rather than a preservation of the status quo of the parties or res at issue would result from a granting of provisional injunctive relief ( see Automated Waste Disposal , Inc. v Mid-Hudson Waste , Inc., 50 AD3d 1072, 857 NYS2d 648 [2d Dept 2008]; Matter of 35 New York City Police Officers v City of New York ,34 AD3392, 826 NYS2d 22 [1st Dept 2006]).
Here, the plaintiff failed to submit a copy of the complaint filed and served in this action and the nature of the claims asserted are not readily discernable from the moving papers. The court is thus unable to conclude that statutory predicates regarding the nature of the action and the claims asserted that are imposed by CPLR 6301 upon the the granting of preliminary injunctive relief have been met.
That which is apparent from the moving papers is that the plaintiff is attempting to halt the eviction proceeding pending against her in the District Court and prevent the Sheriff of Suffolk County from removing her from her property. However, the granting of this relief, provisionally, in the form of a preliminary injunction, would violate the prescription against awarding the plaintiff some form of the ultimate relief she seeks in this action, as no special circumstances have been shown to exist which would warrant such drastic relief ( Wheaton/TMW Fourth Ave ., LP v New York City Dept. of Bldgs. 65 AD3d 1051, supra).
In addition, the true nature of the relief the plaintiff seeks constitutes a collateral attack upon the judgment of foreclosure and sale that was entered in the underlying foreclosure action, pursuant to which, a public sale of the premises was held and good and marketable legal title to the premises were conveyed to the defendant. Since such relief would defeat the defendant's resort to the rights conferred upon it under the terms of the final judgment of foreclosure, doctrines such as res judicata, collateral estoppel, the finality of judgments and rules governing the vacatur of judgments prohibit collateral attacks upon judgments rendered in one action by parties to a separate subsequent action or their agents in virtually all circumstances (see James v Shave , 62 NY2d 712, 476 NYS2d 532 [1984]; IndyMac Bank , F.S.B. v Vincoli , 105 AD3d 704, 962 NYS2d 624 [2d Dept 2013]; Limitone Enter ., Inc. v Walker , 102 AD3d 697, 958 NYS2d 179 [2d Dept 2013]; Egloff v Town of Lewisboro , 89 AD3d 792, 932 NYS2d 151 [2d Dept 2011]; Calabrese Bakeries , Inc. v Rockland Bakery , Inc ., 83 AD3d 1060, 923 NYS2d 556 [2d Dept 2011]). Morever, the law is clear that absent the availability of an appeal, applications attacking the validity of some or all parts of a judgment must be interposed in the action in which the judgment was rendered (see Oppenheimer v Westcott , 47 NY2d 595, 419 NYS2d 908 [1979]; GMAC Mtge. Corp. v Sung Sook Park , 51 AD3d 972, 860 NYS2d 122 [2d Dept 2008]; North Shore Envtl. Solutions , Inc. v Glass , 17 AD3d 427, 792 NYS2d 610 [2d Dept 2005]).
In view of the foregoing, the instant motion is all respects denied and all previously imposed stays and restraints imposed upon the defendant are hereby lifted and vacated.
Dated: February 23, 2015______________________________
THOMAS F. WHELAN, J.S.C.