Garden City Irrigation, Inc. v Salamanca
Annotate this CaseDecided on April 18, 2005
Supreme Court, Nassau County
Garden City Irrigation, Inc., Plaintiff,
against
Donna Salamanca, Anthony Perez and Meredith Ercoli, Defendants.
13304-04
Counsel for Plaintiff
Bondi & Iovino, Esqs.
190 Willis Avenue
Mineola, New York 11501
Counsel for Defendant
Schrier, Fiscella & Sussman, LLC
250 Old Country Road
Mineola, New York 11501
Leonard B. Austin, J.
Plaintiff, Garden City Irrigation, Inc. ("Garden City") moves for a preliminary injunction enjoining the Defendants from transferring, gifting, disposing of, wasting, destroying, encumbering or in any manner affect title or possession of any real or personal property owned by Defendant Donna Salamanca ("Salamanca") during the pendency of this action and for a preliminary order of attachment directing Alfred Zafante, Esq. ("Zafante") to hold in his possession, pending further order of this Court, funds belonging to, or claimed by, Salamanca including any funds received by Zafante in escrow regarding a real estate transaction involving Salamanca.
Salamanca cross-moves for an order staying the prosecution of this action pending the disposition of the criminal matter.
BACKGROUND
Garden City is in the business of providing irrigation systems, drainage systems and landscaping for commercial and residential premises.
In April 2001, Garden City hired Salamanca as its bookkeeper. In June 2004, Garden City discovered that Salamanca had been misappropriating funds. She was immediately fired.
As of the date of the application, Garden City had discovered that Salamanca had taken in excess of $150,000.00.
As Garden City's bookkeeper, Salamanca was responsible for writing checks. She also received and reconciled the corporate checking account. She was not an authorized signatory on the corporation's checking account.
Garden City alleges that Salamanca wrote checks to herself and designated them as payroll, bonus or reimbursement for expenses. She would then forge the signature of an authorized person and cash or deposit the checks into here personal account.
Salamanca also took funds by writing checks to Defendant Meredith Ercoli
("Ercoli") who was an employee of Garden City for a short period of time in September and October 2001. Garden City asserts that the checks were issued by Salamanca to Ercoli after Ercoli was terminated as an employee. The signature on the checks was forged by Salamanca.
Garden City further alleges that Salamanca diverted funds from Garden City for the benefit of Defendant Anthony Perez ("Perez") by issuing checks to a body shop in Staten Island to pay for detailing and restoration work on a motor vehicle owned by Perez.
Garden City claims that Salamanca entered into a contract to purchase a home. The deposit due on contract was paid over to Zafante to be held in escrow pending the closing. Salamanca was unable to close on the purchase of the home and the deposit due on contract was still being held by Zafante.
Salamanca is alleged to have few ties to New York. Her father resides in Florida. She drives a car with Florida plates. Her brother resides in Pennsylvania. Garden City believes that Salamanca will transfer her assets out of the jurisdiction or transfer title to other persons thus preventing Garden City from either recovering the money Salamanca misappropriated or from obtaining restitution through the criminal matter.
Salamanca has been charged with Grand Larceny in the Second Degree, which is a Class C Felony under Penal Law §155.40(1). The criminal action is presently [*2]pending before the County Court, Nassau County. She has plead not guilty.
Salamanca seeks to stay the prosecution of this action pending the resolution of the criminal action asserting that she will assert her Fifth Amendment privilege against self-incrimination if compelled testify in this action.
DISCUSSION
A. Preliminary Injunction
In order to obtain a preliminary injunction, the party seeking the relief must demonstrate a probability of success on the merits, the danger of irreparable harm if injunctive relief is not granted and a balancing of the equities favors the granting of such relief. Doe v. Axelrod, 73 NY2d 748 (1988); and W. T. Grant Co. v. Srogi, 52 NY2d 496 (1980); and Olabi v. Mayfield, 8 AD3d 459 (2nd Dept. 2004).
The purpose of a preliminary injunction is to preserve the status quo pending a resolution of the matter on the merits. Icy Splash Food & Beverage, Inc. v. Henckel, 14 AD3d 595 (2nd Dept. 2005).
A preliminary injunction will be issued only if the party seeking the injunction demonstrates a clear right to such relief on the undisputed facts. Gagnon Bus Co., Inc. v. Vallo Transportation, Ltd., 13 AD3d 334 (2nd Dept. 2004); and Peterson v. Corbin, 275 AD2d 35 (2nd Dept. 2000).
In this case, Garden City has demonstrated all three elements required to obtain a preliminary injunction from the undisputed facts. Garden City places before the Court numerous checks which it asserts were written and signed by Salamanca constituting the diverted and misappropriated corporate funds. Salamanca does not either directly or indirectly contest that she wrote these checks to herself, that she was not entitled to these funds or that she forged the signature on the checks. This proof establishes a likelihood of success on the merits.
Garden City will also sustain irreparable harm if a preliminary injunction is not issued. Garden City asserts that Salamanca engaged in a course of systematic dishonesty. If the Court does not restrain her from transferring, gifting, disposing of, wasting, destroying or encumbering her assets, there is a likelihood that Garden City will be unable to enforce a judgment it obtains in this action.
Garden City alleges, and Salamanca does not deny, that her father resides in Florida and her brother resides in Pennsylvania or that the vehicle she drives has Florida license plates. This Court should not permit Salamanca to transfer assets out of the jurisdiction. Salamanca should not be able to misappropriate funds from her employer and then make it difficult if not impossible for her employer to recover these funds if it obtains a judgment.
Finally, a balancing of the equities indicates that a preliminary injunction should issue. Salamanca has not indicated that she has or will suffer any harm as a result of the issuance of the preliminary injunction. On the other hand, Garden City will clearly suffer harm if the preliminary injunction is not issued. This Court should not permit Salamanca to transfer assets which are alleged to have been misappropriated.
CPLR 6312(b) requires the Court to fix an undertaking in an amount sufficient to compensate the Defendant should the Court determine that the preliminary injunction was improvidently granted. Catalogue Serv. of Westchester, Inc. v. Henry, 107 AD2d 783 (2nd Dept. 1985). In this case, if it is found that the Court improvidently granted the [*3]preliminary injunction, damages would be nominal. Accordingly, the bond is set in the sum of $1,000.00.
B. Preliminary Order of Attachment
Garden City seeks a preliminary order of attachment with regard to the funds Zafante is holding in escrow as the deposit on the aborted real estate deal. In order to obtain a preliminary attachment, plaintiff must demonstrate a likelihood of success on the merits and one of the statutorily enumerated grounds for obtaining such relief. Mineola Ford Sales Ltd. v. Rapp, 242 AD2d 371 (2nd Dept. 1997); and Arzu v. Arzu, 190 AD2d 87 (1st Dept. 1993); and CPLR 6201.
As indicated above, plaintiff has demonstrated a likelihood of success on the merits.
The only statutorily enumerated basis for granting a preliminary attachment is CPLR 6201(3) which provides for a preliminary attachment if the Defendant, with intent to defraud creditors or frustrate the enforcement of a judgment, assigns, encumbers or secretes property or removes property or is about to remove property from the state, or assign, encumber or secrete property to defraud creditors or frustrate the enforcement of a judgment.
Plaintiffs allege, and Salamanca does not deny, that she has limited contact with New York. Plaintiff asserts and Salamanca does not deny that if the funds being held by Zafante were released that she would transfer them to her brother or father who are out of state.
Under these circumstances, it would appear appropriate that Zafante continue to hold the funds paid by Salamanca as the deposit due on contract pending the determination of this action.
CPLR 6212(b) mandates the filing of an undertaking of at least $500.00 to cover the costs and damage that they be incurred by the Defendant if the Defendant recovers judgment or if the Court decides that plaintiff was not entitled to the attachment. The Court therefore fixes the undertaking in the sum of $500.00.
C. Cross-Motion to Stay
Salamanca moves to the stay the prosecution of this action pending the determination of the criminal matter. CPLR 2201 permits the Court to stay the prosecution of the action under such circumstances and on such terms as the Court deems appropriate.
Defendant asserts that the prosecution of this action should be stayed because she should not be required to waive her Fifth Amendment right against self-incrimination in order to defend this action. See, DeSiervi v. Liverzani, 136 AD2d 527 (2nd Dept., 1988).
In deciding whether to stay the prosecution of a civil action pending the final disposition of a criminal matter arising from the same set of facts, the court should consider all relevant factors including the risk of inconsistent adjudications and the potential waste of judicial resources. Britt v. International Bus Services, Inc., 255 AD2d 142 (1st Dept. 1998); and Zonghetti v. Jeromak, 150 AD2d 561 ( 2nd Dept. 1989).
In this case, the Court must consider the collateral estoppel effect that would result if Salamanca were to be found guilty after trial or plead guilty. The allegations that give rise to the criminal prosecution are similar if not identical to those that would be [*4]litigated in this action. If Salamanca were to either plead guilty or be found guilty after trial, she would be collaterally estopped from contesting the facts underlying the conviction in this action. See, Schwartz v. Public Administrator of Bronx County, 24 NY2d 65 (1969); and Sterling Ins. Co. v. Chase, 287 AD2d 892 (3rd Dept. 2001); and Wagman v. Kandekore, 243 AD2d 628 (2nd Dept. 1997). A guilty plea or a conviction after trial might very well obviate the need for discovery or a trial in this action.
Additionally, Salamanca might be required to make restitution if she pleads guilty or is convicted. Penal Law §60.27. The amount of restitution would most certainly affect or possibly obviate the need to conduct discovery or have a trial of this action.
Since Salamanca has indicated that she will assert her Fifth Amendment right if required to testify in this action and the fact that the resolution of the criminal action may result in this case either not requiring discovery or a trial or significantly simplify and streamline discovery and trial, the Court believes that it is appropriate to stay the prosecution of this action pending the final determination of the criminal prosecution.
Accordingly, it is,
ORDERED, the Plaintiff's motion for a preliminary injunction is granted. Defendant Donna Salamanca is hereby stayed and enjoined, during the pendency of this action, from transferring, gifting, disposing of, wasting, destroying and/or encumbering or in any manner affecting the title or possession of any real or personal property in which she has any legal or beneficial interest without the written consent of Plaintiff or its counsel or by Order of this Court; provided that Plaintiff posts an undertaking in the sum of $1,000.00 within ten days of the date of this Order. Such undertaking may be a deposit into the escrow account of Plaintiff's attorney, deposit with the Nassau County Clerk or by a reputable surety within the State of New York; and it is further,
ORDERED, that Plaintiff's motion for an order of attachment is granted. Albert Zafante, Esq., shall continue to retain the deposit paid by Donna Salamanca in connection with a contract for the purchase of real estate during the pendency of this action and shall not disburse same without written consent of Plaintiff or its counsel or Order of this Court provided that Plaintiff posts an undertaking in the sum of $500.00 within ten days of the date of this Order. Such undertaking may be a deposit into the escrow account of Plaintiff's attorney, deposit with the Nassau County Clerk or by a reputable surety within the State of New York; and it is further,
ORDERED, that if Plaintiff fails to post the undertakings herein provided, then Plaintiff's motion for a preliminary injunction and order of attachment is denied; and it is further,
ORDERED, that Defendant Donna Salamanca's motion to stay the further prosecution of this action pending the final disposition of her criminal prosecution on the charges which give rise to this litigation is granted; and it is further,
ORDERED, that counsel for the Plaintiff shall initiate a telephone conference with all counsel and the Court on June 10, 2005 at 4:00 p.m. to advise the Court of the status of the criminal matter.
This constitutes the decision and order of this Court.
Dated: Mineola, NY _____________________________
[*5]
April 18, 2005 Hon. LEONARD B. AUSTIN, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
