Begum v Ahmed

[*1] Begum v Ahmed 2012 NY Slip Op 52043(U) Decided on October 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2012
Supreme Court, Queens County

Sultana Begum and HELALUR RAHMAN, Plaintiff,

against

Mohammed K. Ahmed, Defendant.



8056/2012



For the Plaintiff: Phillip A. Akakwam, Esq., 303 Livingston St., Brooklyn, New York 11217

For the Defendant: Eric B. Schultz, Esq., 1 Scott Place, Plainview, NY 11803

Charles J. Markey, J.

In this action to impose a constructive trust on certain real property and for other related relief, plaintiffs move to consolidate this action with a summary holdover proceeding entitled Mohammed K. Ahmed v Helalur Rahman and Sultana Begum, pending in Civil Court, Queens County, under L & T Index No. 58175/12, or, in the alternative, to stay the summary proceeding until the determination of the instant action.

Plaintiffs, who are married, allege that they purchased the subject property in October 2003, but took title thereto in the name of plaintiff Sultana Begum only. They further allege that they maintained possession of the property, exercised ownership rights over it, and retained the beneficial interest therein to date, despite two subsequent transfers of part or all of the legal title.

Defendant, the cousin of plaintiff Helalur Rahman, obtained title to the subject property by deed dated December 2, 2005. Plaintiffs assert that the conveyance to defendant was made for their convenience, because they were otherwise unable to obtain refinancing, with the understanding and agreement that defendant would hold title on behalf of plaintiffs and transfer title to them upon demand. By petition dated March 8, 2012, in the holdover proceeding, defendant claimed ownership of the premises and, describing plaintiffs as tenants whose term has expired, sought possession of the premises and a warrant of eviction.

The purpose of a preliminary injunction is to preserve the status quo and prevent the dissipation of property pending the disposition of an action on the merits (Perpignan v Persaud, 91 AD3d 622 [2nd Dept. 2012]; Reichman v Reichman, 88 AD3d 680 [2nd Dept. 2011]; Ruiz v Meloney, 26 AD3d 485, 486 [2nd Dept. 2006]). To be entitled to a preliminary [*2]injunction, the moving party must establish a likelihood of success on the merits, the prospect of irreparable injury if provisional relief is not granted, and a balancing of the equities in the movant's favor (Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; Ruiz v Meloney, 26 AD3d 485, 485-486 [2nd Dept. 2006]). Under the circumstances presented, plaintiffs have sufficiently met the burden imposed on them (see, Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2nd Dept. 2009]).

Defendant has not submitted his own affidavit or any other evidence to refute plaintiffs' sworn statements in support of their claim for the imposition of a constructive trust (see, McNeil v Mohammed, 32 AD3d 829 [2nd Dept. 2006]). The arguments of defendant's counsel regarding the lack of a writing between the parties do not affect plaintiffs' likelihood of success since the statute of frauds is not a defense to a cause of action for a constructive trust (see, Ubriaco v Martino, 36 AD3d 793 [2nd Dept. 2007]). Furthermore, a familial relationship, as alleged by plaintiffs, can provide the basis for finding the existence of a confidential relationship (see, Enzien v Enzien, 96 AD3d 1136 [3rd Dept. 2012]; Matter of Almasy v Ward, 53 AD3d 946, 947 [3rd Dept. 2008]; cf. Sharp v Kosmalski, 40 NY2d 119, 121 [1976]), and plaintiffs have offered substantiating evidence tending to show that they continued to pay the mortgage on the property following the transfer to defendant. Although there are gaps in the factual presentation offered by plaintiffs, conclusive proof is not required for a finding of a likelihood of success on the merits, and a preliminary injunction may issue even when factual questions exist (see, McNeil, 32 AD3d at 830; Ruiz, 26 AD3d at 486; see also, Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 625 [2nd Dept. 2011]; S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642 [2nd Dept. 2008].)

Injunctive relief is appropriate here in order to maintain the status quo since the issue of title raised in this action cannot be adjudicated in the summary proceeding and plaintiffs' claims, even if established, would not provide a defense to the summary proceeding (see, Capolino v Bua, 63 AD3d 1092 [2nd Dept. 2009]; Finkelman v Finkelman, 105 AD2d 771 [2nd Dept. 1984]; 3 Dolan, Rasch's Landlord and TenantSummary Proceedings §§ 43:38-43:39, at 137-139 [4th ed.]). In the absence of a stay of the Civil Court proceedings, plaintiffs could be evicted from the home where they have lived for almost nine years without the opportunity to establish their claimed right to title or a constructive trust. There is nothing before the Court to suggest that defendant would suffer any great hardship should the stay be granted, while denying it could result in allowing a breach of trust to be rewarded (see, Hightower v Reid, 5 AD3d 440 [2nd Dept. 2004]). In the event that the defendant prevails in this action, the expertise of the Civil Court will be available to resolve the remaining landlord-tenant dispute.

Accordingly, the motion is granted to the extent that defendant and his agents or representatives are stayed from prosecuting the above-named summary proceeding during the pendency of this action on the condition that plaintiffs timely pay the mortgage, insurance and real estate/water taxes that become due on the property from the date of the order to be entered hereon, and on the further condition that plaintiffs provide an undertaking in [*3]accordance with CPLR 6312 (see, Panish v Panish, 32 AD3d 382 [2nd Dept. 2006]). The amount of the undertaking will be fixed in the order to be entered hereon. The parties shall submit proof and recommendations as to the amount of the undertaking upon settlement of the order (see, Baldeo v Majeed, 33 Misc 3d 1233(A), 2011 WL 6187149, 2011 NY Slip Op. 52229(U) [Sup Ct Queens County 2011] [decision by the undersigned]; Friedman v Clearview Gardens Second Corp., 30 Misc 3d 1221(A), 2011 WL 489545, 2011 NY Slip Op. 50149(U) [Sup Ct Queens County 2011] [decision by the undersigned]).Settle order.

_______________________________

J.S.C.

Dated: October 26, 2012