Mohamed v Persaud

[*1] Mohamed v Persaud 2012 NY Slip Op 50747(U) Decided on April 27, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 27, 2012
Supreme Court, Queens County

Robert Mohamed and Rita Dillon

against

Ena Persaud



24956/2011



For the Plaintiffs: Salfarlie, Salfarlie & Assoc., P.C., by Donald A. Salfarlie, Esq., 88-11

Sutphin Blvd., Jamaica, New York 11435

For the Defendant: Jack L. Glasser, P.C., 88-28 Sutphin Boulevard, Jamaica, New York

11435

Charles J. Markey, J.

The following papers numbered 1 to 5 read on this motion by plaintiff Robert Mohamed and plaintiff Rita Dillon for, inter alia, a preliminary injunction prohibiting defendant Ena Persaud from prosecuting a landlord-tenant proceeding in the New York City Civil Court, County of Queens (Persaud v Mohamed, L & T Index No. 70970/11) and on this cross motion by defendant Ena Peraud for, inter alia, a preliminary injunction directing the plaintiffs to pay sums owed on a mortgage from March 1, 2011, through November 30, 2011

Papers Numbered

Order to Show Cause - Affidavits - Exhibits ...............................................................1-2

Notice of Cross Motion - Affidavits - Exhibits ...........................................................3

Reply Affidavits ...........................................................................................................4-5

I. The Allegations of the Plaintiffs

In or about July, 2006, plaintiff Rita Dillon entered into a contract with Raja Singh whereby the former agreed to purchase premises located at 104-26 124th Street, Richmond Hill, New York (" the subject property"). After she could not obtain a mortgage, David Ramnauth, [*2]the husband of defendant Ena Persaud, informed her that she should place the subject property in his wife's name. On or about September 13, 2006, pursuant to an oral agreement between the parties, defendant Persaud purchased the subject property in her name, but for the benefit of the plaintiffs. The defendant promised to convey the subject premises to the plaintiffs as soon as they obtained their own mortgage. The plaintiffs agreed to pay the carrying charges on the premises to defendant Persaud, and she agreed to transmit the payments to the creditors. The plaintiffs occupied the subject premises on the day after title closed, although they now live in a different home.

In or about March, 2011, the defendant insisted that the plaintiffs pay the carrying charges in cash, and she refused to sign receipts for the cash payment. On or about July 14, 2011, the defendant began a landlord-tenant proceeding against the plaintiffs, falsely claiming that they were merely her tenants.

The defendant has not properly accounted for certain sums that she has derived from the transaction.

II. The Allegations of the Defendant

Defendant Persaud obtained a purchase money mortgage for the premises because she had good credit. She agreed to purchase the subject property on the plaintiffs' behalf with the expectation that they would become sufficiently credit worthy to obtain a new mortgage within one year and that they would pay off her mortgage. However, after a year had expired, the plaintiffs told the defendant that they still lacked the ability to obtain their own mortgage, and she agreed to continue the arrangement whereby they lived on the subject property and paid the carrying charges.

In March, 2011, the plaintiffs told her that they could no longer give her the money for the mortgage payments, and she herself made the mortgage payments, totaling more than $40,000 , due from March, 2011 through November, 2011 out of her own pocket. She has nearly exhausted her savings, and the plaintiffs continue to live at the house expense free. Although she has no desire to retain title to the premises, she had to bring the landlord-tenant proceeding because the plaintiffs, who breached their promise to take ownership of the house within one year after she purchased it on their behalf, do not pay either rent or the mortgage debt. She has "no objection whatsoever to the plaintiffs to continue living in this house so long as they pay the mortgages associated with the upkeep and maintenance of the house." She has never demanded cash payments from the plaintiffs.

III.Discussion

A party moving for a preliminary injunction has the burden of establishing (1) a likelihood of success on the merits, (2) irreparable injury if provisional relief is withheld, and (3) a balance of the equities in his favor ( Aetna Ins. Co. v. Capasso, 75 NY2d 860 [1990]). The [*3]plaintiffs failed to carry this burden. In regard to the likelihood of success on the merits, a cause of action to impose a constructive trust requires proof of a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment (Abacus Federal Savings Bank v. Lim, 75 AD3d 472 [1st Dept. 2010]).

In the case at bar, the parties do not stand in a confidential or fiduciary relationship, and as far as unjust enrichment is concerned, the defendant is willing to convey title to the plaintiffs as soon as they pay off her mortgage as they allegedly promised. Moreover, in view of the conflicting allegations of the parties, the court cannot determine here whether the "equities of the situation" warrant the imposition of a constructive trust in favor of the plaintiffs (see, Osetek v. Osetek 75 AD2d 867, 868 [2nd Dept.], lv. to appeal dismissed, 52 NY2d 828 [1990]).

In regard to irreparable injury, the plaintiffs reside at 104-23 123rd Street, Richmond Hill, in Queens County, New York, not at the subject property, and, thus, they are in no danger of being evicted from their home. This case involves economic loss, and an injury compensable in money is not irreparable (see, Rowland v Dushin, 82 AD3d 738 [2nd Dept. 2011]. In regard to the balance of the equities, the issuance of a preliminary injunction would cause substantial hardship to the defendant because of the plaintiffs' failure to make the mortgage payments due from March, 2011.

In regard to the cross motion, the defendant failed to establish the element of irreparable injury in this case which concerns financial loss compensable in money (see, Rowland v Dushin, 82 AD3d 738, supra).

Finally, the removal of the landlord-tenant proceeding to this Court, and the consolidation of the proceeding with the instant action is not warranted because of the prejudice that would accrue to the defendant from further delay (see, American Home Mortg. Servicing, Inc. v Sharrocks, 92 AD3d 620 [2nd Dept. 2012]). It is "well settled that the existence of substantial prejudice in the form of delay in the trial of another action is sufficient reason to deny consolidation even in situations where common questions of law or fact exist . . . ." (F & K Supply, Inc. v. Johnson, 197 AD2d 814, 814-815 [3rd Dept. 1993]). The plaintiffs are already more than $40,000 in arrears in their mortgage payments, and they gave no indication of a willingness or ability to pay past due amounts or current amounts.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: April 27, 2012