Opinion
39557/04.
Decided on June 20, 2005.
On December 6, 2004, plaintiff Virginia Robinson (Robinson) moved by order to show cause for a temporary restraining order (TRO) and preliminary injunction preventing defendant Dime Savings Bank of Williamsburgh (Dime) from selling, transferring or conveying her shares of a cooperative stock certificate and the appurtenant proprietary lease located at 3310 Avenue H, apartment 4F, Brooklyn, New York.
On December 6, 2004, Supreme Court Justice Yvonne Lewis granted the TRO. The followings facts are not disputed. Plaintiff is seventy two years old and has resided for twenty five years at 3310 Avenue H, apartment 4F, Brooklyn, New York. She is the owner of stock certificate number sixty-six (66), representing three hundred and ten (310) shares in Mansfield Owners, Inc (Mansfield). She is also the proprietary lessee and tenant of apartment 4F at 3310 Avenue H, Brooklyn, New York which is appurtenant to said stock certificate. Mansfield is a cooperative corporation that owns the development in which plaintiff resides. Dime is the owner of the mortgage on the aforementioned cooperative shares represented by stock certificate number sixty-six (66).
Plaintiff's OTSC includes her counsel's affirmation, her affidavit and six annexed exhibits. Her affidavit contains the following allegations of fact: She has regularly paid Mansfield the monthly maintenance charge of six hundred and twenty six dollars and twenty cents ($626.20) for apartment 4F on the first of each month. She has also made her mortgage payments to Dime by direct payment from her Dime Savings Bank Account. In or about 2002 and 2003, Mansfield billed her for a series of small charges as additional rent without explaining what the charges were for. Despite her numerous inquiries to the building's management office, the charges were never explained. Instead she was threatened with termination of her proprietary lease, eviction and sale of her appurtenant shares at a non-judicial foreclosure sale unless the charges were paid. She then, under protest, paid the amount demanded which by that time grew to approximately $9,297.82. This amount included alleged unpaid "additional maintenance" late charges, and attorneys' fees for Mansfield and Dime.
It is undisputed that plaintiff brought an action for restitution against Mansfield in the Kings County Civil Court under index number 69299/03, claiming that these monies were wrongfully paid to them. Mansfield moved for summary judgment alleging that the doctrine of voluntary payment barred the action. By decision issued June 28, 2004, Judge Peter P. Sweeney granted defendant's application and dismissed plaintiff's cause of action. Mansfield thereafter demanded from the plaintiff, the sum of eight thousand six hundred and seventy two dollars and eighty five cents ($8,672.85), the purported amount of their attorney fees incurred defending the action. Once again, the demanded sum was characterized by Mansfield as additional maintenance.
Thereafter, Mansfield advised Dime of plaintiff's nonpayment of these attorney's fees which it characterized as additional maintenance. By letter dated October 26, 2004, Dime advised plaintiff, that pursuant to the terms of her loan agreement with Dime, they had scheduled a non-judicial foreclosure sale of her cooperative shares for Tuesday, December 8, 2004.
Plaintiff commenced the instant action seeking a declaratory judgment that she does not owe the sums demanded by defendants. It is noted that Mansfield did not assert any counterclaims against plaintiff in the King's County Civil Court matter bearing index number 69299/03. Both Mansfield and Dime filed opposition to plaintiff's OTSC. Mansfield's opposition papers assert that plaintiff is in default of her lease obligations for apartment units 2E and 4F. They further allege that under the terms of the lease agreement, they may recover, as additional rent, the reasonable attorney's fees incurred to enforce the lease obligation which plaintiff allegedly defaulted. They also set forth their explanation showing that the attorney's fees incurred in defending plaintiff's cause of action under index number 69299/03 and in prosecuting their successful summary judgment motion was reasonable.
Dime alleges that on August 5, 2004, after Judge Sweeney issued the decision and order dismissing plaintiff's complaint, Mansfield made a demand to both plaintiff and Dime for reimbursement of its legal fees in connection with that proceeding. Dime contends that it was required to pay the amount demanded by Mansfield to avoid termination of the proprietary lease and potential loss of the collateral they held. After payment of that amount to Mansfield, Dime served a notice of default, dated September 28, 2004, upon plaintiff. Dime is claiming that it cured plaintiff's default on the proprietary lease by paying the attorney's fees to Mansfield. Dime contends that plaintiff's failure to pay this sum constitutes a default under the terms of the security agreement she entered into with Dime.
Plaintiff's instant order to show cause seeks to preserve the status quo and to prevent the loss of her cooperative shares and appurtenant proprietary lease while the court determines whether she owes the money demanded by defendants Mansfield and Dime. This application must be analyzed in light of the statutory requirements of CPLR § 6301.
CPLR § 6301 provides the grounds for preliminary injunction:
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.
A preliminary injunction is a drastic remedy which should only be granted if the moving party establishes clear entitlement upon the relevant facts set forth in the moving papers. Bare conclusory allegations are insufficient to support the motion ( Wyler v. Wyler 5 Misc 3d 1031(A) [NY Sup. 2004]). The plaintiff's showing must convince the court that the preliminary injunction will prevent conduct before judgment which may impair the ability of the court to render the appropriate final judgment ( Mucchi v. Eli Haddad Corp., 101 AD2d 724). Plaintiff must further show a likelihood of success on the merits, no adequate remedy at law and the balancing of the equities in her favor ( Franzese v. Franzese, 108 Misc 2d 154).
At the outset, it is important to note that plaintiff's factual allegations in the instant application demonstrate to this court a curious and compelling predicament which cries out for the equitable assistance of the Supreme Court. The alleged facts demonstrate plaintiff's payment of an amount to Mansfield, characterized as additional rent, without every receiving an explanation for the sum demanded. It further alleges plaintiff's commencement of an action to recover this unexplained sum. Inasmuch as this court has no appellate authority to review the aforementioned decision of Judge Sweeney granting defendant's summary judgment motion, it will not be disturbed here. It is clear to this court, however, that to the date of the instant application, plaintiff remains unaware of the basis for the additional rent she was originally charged by Mansfield. Compounding this problem, plaintiff is now faced with an additional demand for attorney's fees incurred by Mansfield in defending the Civil Court action brought by plaintiff. Those fees which Mansfield characterized as additional rent were demanded from plaintiff and from Dime, her mortgagee. Once again, plaintiff is placed in the predicament of either paying or potentially losing her cooperative shares and appurtenant proprietary lease. Only this time, Dime has made the "voluntary payment" of attorney's fees on her behalf and is itself seeking payment based on plaintiff's alleged default of the security agreement with Dime because of her failure to pay the attorney's fees demanded by Mansfield. Once again, plaintiff seeks the assistance of the court to address this problem.
To prevail, plaintiff must first demonstrate the likelihood of success on the merits of her claim that this debt is not owed by her. Although plaintiff has not yet moved pursuant to CPLR § 3212 for an accelerated declaratory judgment on this issue, it is abundantly clear to this court that she would likely succeed on such an application. When plaintiff commenced an action against Mansfield in King's County Civil Court under index number 69299/03 she was seeking reimbursement under her proprietary lease for monies wrongfully demanded and received by Mansfield as additional rent. Mansfield's motion for summary judgment dismissing plaintiff's complaint conceded the existence of a lease, the fact that it made a demand for payment of additional rent under the terms of the lease, and that plaintiff paid the monies demanded. Mansfield also successfully argued that the manner in which plaintiff made the payment rendered it a voluntary act which barred her from contesting the merits of the sum demanded. Mansfield's
later claim for attorney's fees incurred for defending this action, however, arose directly from the terms of its proprietary lease with the plaintiff. It was the lease which also supported Mansfield's claim of right to demand the charges which were the subject of plaintiff's cause of action. Thus Mansfield's claim for attorney's fees were interrelated and should have been part of one cause of action. Failure to make a claim for attorney's fees in the initial summary proceeding results in the splitting of a cause of action which is prohibited"( 930 Fifth Corporation v. King, 42 NY2d 886; 222 Bloomingdale Rd. Assocs. v. NYNEX Props. Co., 269 AD2d 525 [2nd Dept 2001]). Enforcement of the prohibition against the splitting of causes of action requires that such fees be sought within the action in which they are incurred, and not in a subsequent action" ( Wavertree Corp. V 136 Waverly Associates, 258 AD2nd 392 [lst Dept. 1999]; Lupoli v. Venus Labs., 287 AD2d 488 [2nd Dept. 2001]).
Here, there is no question that Mansfield's claim for attorney's fees was not asserted as a counterclaim in the King's County Civil Court matter bearing index number 69299/03. The claim for such fees would be subject to an accelerated judgment of dismissal by application of the plaintiff. Although the plaintiff has yet to make such an application, the court may consider the strong likelihood of success on such an application in considering plaintiff's request for a preliminary injunction. With this in mind, it is also clear to this court, that if the plaintiff were not granted the relief requested, she would lose her cooperative shares in a non-judicial foreclosure sale and be subject to the termination of her appurtenant proprietary lease for failing to pay attorney's fees that Mansfield would be barred from collecting. Although a cooperative share is considered personalty, the shares in question here are tied to a proprietary lease for apartment 4F which has been plaintiff's home for twenty five years. The court is satisfied that plaintiff would have no adequate remedy at law in the absence of injunctive relief. The court also finds that the equities balance in plaintiff's failure. Dime may seek repayment from Mansfield for monies it improperly paid should the court determine that Mansfield was not entitled to the monies it demanded.
Plaintiff's request for a preliminary injunction enjoining the defendants is granted. The foregoing constitutes the decision and order of this court.