Opinion
Index No. 3189/2016
07-21-2023
Annette Renaud, Plaintiff, v. Lisa A. Renaud, Defendant, Chase Bank, N.A., Counterclaim defendant.
Pro Se Plaintiff Annette Renaud Annette Renaud redacted Defendant Lisa Renaud Robert A. Freilich, Esq. Rottenberg Lipman Rich, P.C.
Unpublished Opinion
Pro Se Plaintiff Annette Renaud Annette Renaud redacted
Defendant Lisa Renaud Robert A. Freilich, Esq. Rottenberg Lipman Rich, P.C.
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause filed by plaintiff Annette Renaud on April 26, 2023, proceeding pro se, seeking, among other things, an order vacating an interim judgment dated July 17, 2017, as improper as no accounting was performed as required by law, see RPAPL 911 and RPAPL 945; and staying, vacating or modify the January 13, 2022, Interim Judgment, pursuant to CPLR 2221(a).
• Order to Show Cause
• Affirmation in Opposition,
• Exhibits A-Y
• Affidavit in Reply
BACKGROUND
On March 25, 2016, Annette Renaud (hereinafter plaintiff or Annette R.) commenced the instant action by filing a summons and complaint with the Kings County Clerk's Office (KCCO). The complaint alleges thirty-seven allegations of fact in support of three causes of action. The first cause of action is denominated as asserting a claim for unjust enrichment. The second cause of action sounds in fraud. The third cause of action is denominated as a claim for promissory estoppel. Underlying the plaintiff's claim is the defendant's alleged breach of a promise made by the defendant to her sister, the plaintiff, whereby the defendant would hold legal title to certain real property in Brooklyn, New York, Block No. 1837 Lot No. 23 and retain in trust for the benefit of the plaintiff's one-half interest in the subject property.
On March 25, 2016, defendant Lisa A. Renaud (hereinafter Lisa R.) interposed and filed an answer with counterclaim. By stipulation of the parties executed on November 16th, 2016, Lisa R. amended the answer and counterclaim. The counterclaim sought a judgment declaring that the defendant is the owner of a one-half interest of the subject property, partition, an accounting, and attorneys' fees. The plaintiff did not interpose a reply to Lisa R.'s counterclaim.
The instant order to show cause was signed by Justice Genine D. Edwards. The order included a temporary restraining order staying the sale of the subject property which had been scheduled for April 27, 2023. The order directed personal and email service of the order to show cause upon the defendants and all parties entitled to notice on or before April 27, 2023.
LAW AND APPLICATION
The plaintiff filed two affidavits of service of the instant order to show cause in the NYSCEF system under document Nos. 309 and 310 respectively. Neither one of the filed affidavits of service reflected that the plaintiff complied with the Court's directions on the manner and method of service. The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with (Matter of Sharma v New, 87 A.D.3d 1070 [2d Dept 2011], citing Hennessey v DiCarlo, 21 A.D.3d 505 [2d Dept 2005]). Lisa R. submitted and filed opposition papers to the instant order to show cause. The opposition papers did not object to the plaintiff's failure to comply with the Court's direction on the manner and method of service. Hence, the objection of improper service of the order to show cause was waived (Matter of Sharma, 87 A.D.3d at 1070).
Lisa R.'s opposition papers contained numerous documents setting forth the procedural an appellate history of the underlying action. The papers were proffered to demonstrate that the plaintiff's application had no merit. Lisa R. sought denial of the order to show cause and sanctions against the plaintiff for engaging in frivolous conduct by the filing of the meritless application.
A party seeking affirmative relief of the court such as an order of dismissal based on an objection of law must follow the procedures set forth in the CPLR and applicable court rules for making a motion. The Uniform Rules for New York State Trial Courts, 22 NYCRR 202.7 and 202.8, set forth the court rules that pertain to motion practice. 22 NYCRR 202.7(a) provides that "no motion shall be filed with the court unless they have been served and filed with the motion papers on notice of motion." It also directs compliance with the statutory procedures prescribed in CPLR 2214. At a minimum, a movant must file a notice of motion that shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (CPLR 2214 [a]; see Tirado v Miller, 75 A.D.3d 153, 158 [2d Dept 2010]; Friedman v 292 Fuel Stop, Inc., 73 Misc.3d 1233 [A] [ Sup. Ct., NY County 2021]). Lisa R. however did not make a motion on notice seeking such sanctions. It is therefore denied without prejudice.
On July 6, 2023, the date scheduled for oral argument of the instant order to show cause, the Court removed the temporary restraining order and reserved decision on the remainder of the motion.
CPLR 2214 (a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor (Abizadeh v Abizadeh, 159 A.D.3d at 857 [2d Dept 2018]; Powercap Partners LLC v Beaux Equities LLC, 77 Misc.3d 1221 [A] [Sup Ct, NY County 2023]). The plaintiff's motion papers consisted solely of order to show cause and nothing else. There was no affirmation or affidavit in support and no annexed exhibits. Contrary to the requirements of CPLR 2214, the plaintiff offered no law, facts, or argument in support of any aspect of the relief sought. By the failure to specifically explain the legal and factual basis for the relief that was being sought and the grounds therefore, the motion must be denied (id.). The plaintiff's papers in response to Lisa R.'s opposition papers did not remedy the defect.
It is noted that Lisa R.'s opposition papers demonstrated that the relief sought by the plaintiff had no merit in fact or in law. However, because the plaintiff's motion papers were defective, the merit or lack of merit of the plaintiff's request was not reached. Although the Court did not consider the imposition of sanctions based on the allegation that the order to show cause had no merit in law or fact, that denial was without prejudice based on Lisa R.'s failure to seek said relief by an appropriate notice of motion.
CONCLUSION
Plaintiff Annette Renaud's order to show cause seeking an order restraining the sale of the subject property, as well as the other requested relief is denied in its entirety.
The foregoing constitutes the decision and order of this Court.