August v Schwartz

[*1] August v Schwartz 2016 NY Slip Op 50253(U) Decided on March 1, 2016 Supreme Court, New York County Freed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2016
Supreme Court, New York County

Jane August, Plaintiff,

against

Michelle Schwartz, individually, and as Trustee for the MICHELLE J. SCHWARTZ FAMILY TRUST, Defendant(s).



150340/2016



Jan Ira Gellis, Esq.

Attorney for Plaintiff Jane August

137 Fifth Avenue

New York, NY 10010

Peter E. Sayer, Esq.

Attorney for Defendants Michelle Schwartz,

Individually, and as Trustee for the

Michelle J. Schwartz Family Trust

90 Broad Street, Suite 602

New York, NY 10004
Kathryn E. Freed, J.

In this action claiming, inter alia, breach of an oral contract and seeking equitable relief, plaintiff Jane August moves 1) pursuant to CPLR 325(b), 326(a), and 602(b) to remove and consolidate with the captioned action a pending holdover action commenced against her by defendant Michelle Schwartz in the Civil Court of the City of New York, New York County and 2) for a preliminary injunction enjoining defendant from taking any other steps to evict plaintiff pending resolution of this action.[FN1] Defendant cross-moves, pursuant to CPLR 3211(a)(1), to dismiss the complaint based on documentary evidence. She also moves pursuant to CPLR6514(b) to cancel the notice of pendency filed by plaintiff and pursuant to CPLR 6514 (c) for costs and expenses incurred due to the cancellation of the said notice. After oral argument and after a review of the parties' papers and the relevant case law, the motion and cross motion are denied.

FACTUAL AND PROCEDURAL BACKGROUND:

This is a dispute between two old friends, plaintiff Jane August and defendant Michelle Schwartz, which arises, in principal part, from the issue of whether defendant promised plaintiff that she could live in the apartment she owned, unit 4D at 188 East 76th Street, New York, New York ("the apartment"), for the rest of her (plaintiff's) life, so long as plaintiff paid monthly common charges for the unit.

Plaintiff alleges in her complaint that she has known defendant since 1978. In 1999, defendant told plaintiff, who was then living in Rockville Centre, New York, that she wanted to buy an apartment in Manhattan where plaintiff could live for the rest of her life. In 2000, plaintiff found the apartment in the Siena Condominium ("the condominium"). Defendant gave plaintiff power of attorney to conduct transactions relating to the apartment on her behalf.In 2000, plaintiff, using the power of attorney, took title to the apartment in defendant's name. Defendant reiterated her promise that she was purchasing the apartment so that plaintiff could live there for the rest of her life and, in return, plaintiff agreed to pay the apartment's monthly common charges. Common charges were always paid by plaintiff directly to the condominium. On the few occasions when plaintiff could not make the common charge payments, defendant made the same.

Since the purchase of the apartment, it has been used exclusively as plaintiff's residence.Plaintiff has attended all of the condominium's annual meetings and, by using her power [*2]of attorney, she has exercised the rights allocated to the apartment under the condominium's offering plan.Plaintiff has also managed the apartment's affairs, including interacting with the Board of Managers ("the Board") and the managing agent in order to properly maintain the apartment. She also spent a great deal of time and energy with the Board assisting with the renovation of the condominium's lobby and paid for and supervised the replacement of the apartment's heating and air conditioning units, washer/dryer, dishwasher, flooring, and other appliances, and has paid for painting the apartment several times.

From 2000-2007, plaintiff and defendant were partners in a wholesale handbag business called "Jane August." During that time, defendant invested over $750,000 in the company and plaintiff ran the day to day operations.

In 2001, defendant told plaintiff that she wanted a home of her own close to the apartment so that she could grow old with plaintiff. Plaintiff identified unit 6B at the Empire Condominium at 188 East 78th Street, New York, New York ("the Empire apartment"), which defendant purchased for $2.1 million in December of 2001. At defendant's request, plaintiff assumed responsibility for the management and maintenance of the Empire apartment. This included obtaining another power of attorney, pursuant to which she conducted the transactions necessary to refinance the Empire apartment. The Empire apartment was sold in 2015 for $3,722,500, for a gross profit of $1,622,500. After defendant purchased the Empire apartment, she notified plaintiff that she wished to purchase a house that she (defendant) and her family could use. Plaintiff identified a property in Jeffersonville, New York, which defendant purchased in 2004. At defendant's request, plaintiff managed that property as well, including maintaining insurance on the property at her own expense. In or about December, 2014, defendant told plaintiff that she wanted her to vacate the apartment because she wanted to sell it. Defendant told plaintiff that she would provide her with a $3,500 monthly stipend toward the rental of a different apartment if she vacated the apartment.

On September 3, 2015, defendant sent plaintiff a 30 Day Notice of Termination, terminating plaintiff's tenancy in the apartment as of October 31, 2015 and threatening to commence a summary proceeding to remove plaintiff from the apartment if she did not vacate it by that date.

On November 6, 2015, defendant commenced a summary holdover eviction proceeding against plaintiff in the Civil Court of the City of New York, New York County under L & T Index Number 083044-NLT-2015.

On or about January 14, 2016, plaintiff commenced the captioned action against defendant. The complaint alleges three causes of action. First, plaintiff alleges that, unless a constructive trust is imposed over the apartment for her lifetime, providing her with the exclusive right to live in the apartment, defendant will be unjustly enriched. Next, plaintiff claims that defendant breached her oral agreement to provide plaintiff with a life estate in the apartment. Third, plaintiff claims promissory estoppel. Specifically, she alleges that, as a result of defendant's oral promise to provide her with a life estate, she moved into the apartment and paid common charges and acted as defendant's attorney-in-fact, managing the apartment for 15 years, and managing all of defendant's real estate affairs in New York without compensation. Plaintiff claims that her efforts with respect to the apartment, the Empire apartment and the Jeffersonville property were unequivocally referable to defendant's promise to provide her with a life estate. [*3]Thus, she claims, she is entitled to a declaratory judgment awarding her a life estate in the apartment and an order enjoining defendant from removing her from possession.

At the same time plaintiff commenced the captioned action, she brought the instant order to show cause seeking the relief set forth above. In support of the motion, plaintiff submitted an affidavit, the summons and complaint, pleadings relating to the Civil Court action, documents purporting to establish the current value of the apartment, and the notice of pendency.

On or about January 25, 2016, defendant cross-moved for the relief set forth above. In support of her motion, defendant submitted, inter alia, an affidavit, the deed to the apartment, common charge ledgers, and pleadings from the Civil Court action.

POSITIONS OF THE PARTIES:

Plaintiff claims that the Civil Court action must be consolidated with the captioned action because the two actions share common issues: whether defendant may evict plaintiff from the apartment or whether plaintiff may remain in the apartment for the rest of her life. She further claims that this Court should stay the Civil Court action pending the determination of this motion and that a preliminary injunction should be issued staying the Civil Court action pending the resolution of the captioned action.Plaintiff claims that a determination of the Civil Court action prior to the resolution of the captioned action would render the captioned action "ineffectual."

In support of her argument that she is entitled to a preliminary injunction, plaintiff asserts that she has established a likelihood of success on the merits, the prospect of irreparable injury if the injunction is not granted, and a balancing of equities in her favor with respect to all three of her causes of action.

First, plaintiff claims that she met all four elements of her claim seeking to impose a constructive trust: a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment. Plaintiff maintains that she had, and has, a confidential and fiduciary relationship with defendant since she is executrix of defendant's will, successor trustee of defendant's family trust, successor guardian to defendant's son, has defendant's power of attorney to manage the affairs of the apartment, and was defendant's business partner.

Next, plaintiff asserts that she established defendant's promise that plaintiff could live in the apartment for the rest of her (plaintiff's) life, which promise can be implied from the circumstances. Plaintiff further maintains that she established a transfer in reliance on defendant's promise by spending 15 years contributing her time, money and energy to maintaining and improving the apartment, paying common charges, and working with the Board to renovate the lobby.

Plaintiff further maintains that, if defendant is permitted to sell the apartment, she will be unjustly enriched, since the apartment was purchased for $826,000 and online realty sites Trulia and Zillow estimate that the apartment is worth $2,580,000 and $2,700,000, respectively. Further, asserts plaintiff, she maintained the apartment, the Empire apartment, and the Jeffersonville property without receiving any compensation, and did so only because she was promised that she could live in the apartment for the rest of her life. Thus, she asserts that equity warrants the imposition of a constructive trust.

Next, plaintiff asserts that she is likely to prevail on her claim for breach of contract. [*4]While she acknowledges that the Statute of Frauds is a bar to an action requiring a writing, it will not prevent a court of equity from enforcing an oral contract where partial performance has occurred and failure to enforce the contract will result in injustice. In support of this argument, plaintiff asserts that, in reliance on defendant's promise that she could live in the apartment for the rest of her life, she moved to New York, took occupancy of the apartment, spent her own money on maintenance of the apartment, and undertook the other tasks set forth above.

Additionally, plaintiff maintains that she is likely to prevail on her claim for specific performance based on promissory estoppel. In support of this argument, she asserts that defendant made a clear and unambiguous promise, that she reasonably and foreseeably relied on, and that she was injured due to the reliance.

With respect to irreparable injury and the balancing of the equities, plaintiff argues that an immediate injunction is necessary to prevent her eviction from the apartment, which would render her homeless and prejudice her ability to establish her right to a life estate in the apartment.

Defendant argues that the Civil Court action, in which she seeks possession of the apartment, should not be consolidated with the captioned action since the two actions do not share common issues of law or fact. She asserts that she would be prejudiced if the actions were consolidated, since the summary holdover proceeding would then become protracted and delay her from using the apartment.

Next, defendant maintains that plaintiff is not entitled to a preliminary injunction enjoining defendant from prosecuting the Civil Court action because she (plaintiff) failed to satisfy the elements for issuing an injunction.

First, defendant argues that plaintiff has failed to meet the elements necessary to establish a constructive trust. She initially posits that plaintiff is not entitled to this equitable relief since she does not have "clean hands" as a result of failing to pay all of her monthly common charges (defendant had to make payments of $25,483.50 which plaintiff was unable to pay) for the apartment. Defendant further asserts that, despite plaintiff's claim of her fiduciary relationship with defendant, she (plaintiff) fails to submit any documentation of such relationship in her motion papers. Next, defendant maintains that plaintiff failed to make any promise to plaintiff and that, if defendant promised plaintiff a life estate, such promise was unenforceable pursuant to the Statute of Frauds. Defendant also argues that plaintiff failed to establish a transfer in reliance on defendant's promise since she submitted no evidence of her alleged contribution of her time money and energy to the improvement of the apartment. Finally, urges defendant, plaintiff's submission of internet appraisals of other apartments in the building where the apartment is located are not probative of the value of the apartment and cannot be used to demonstrate any unjust enrichment on the part of defendant.

Defendant denies that she is in breach of an oral contract to give plaintiff a life estate in the apartment since such an agreement never existed and, if it did, it was barred by the Statute of Frauds.

Similarly, defendant maintains that there is no likelihood of success on plaintiff's claim of promissory estoppel since the latter failed to demonstrate a clear and unambiguous promise upon which she relied, thereby sustaining an injury.

Additionally, defendant asserts that plaintiff will not be irreparably harmed if denied the [*5]requested relief since she could be fully compensated by a monetary award.

Further, defendant maintains that plaintiff is not entitled to a preliminary injunction because the equities are not in her favor. Specifically, urges defendant, plaintiff does not have clean hands and has commenced the captioned action based solely on her conclusory affidavit.

Next, defendant asserts that the complaint must be dismissed pursuant to CPLR 3211(a)(1)

because her affidavit constitutes documentary evidence conclusively establishing her defense to plaintiff's claim as a matter of law.

Finally, defendant asserts that the notice of pendency must be cancelled pursuant to CPLR 6514(b) and that plaintiff must pay all costs and expenses associated with the same pursuant to CPLR 6514 (c) since the captioned action was not commenced in good faith.

In a memorandum of law in opposition to the cross motion and in further support of her motion, plaintiff argues, inter alia, that the Civil Court action should be consolidated with the captioned action because they involve the same issues, i.e., who is entitled to legal possession of the apartment.

Plaintiff further relies on CPLR 6312 (c) in asserting that, because she has established her entitlement to a preliminary injunction, defendant's denial or contradiction of allegations in the complaint and plaintiff's affidavit is not in itself grounds to deny the injunction. At most, urges plaintiff, defendant raised a single issue of fact: whether defendant agreed to allow plaintiff to live in the apartment for the rest of her (plaintiff's) life.

Next, plaintiff asserts that defendant's argument regarding unclean hands is without merit, since that type of conduct typically entails unconscionable and brazen behavior, which would not include the failure to pay approximately $25,000 in common charges over a 15-year period. In support of her argument, she maintains that she has always paid the electrical bills on the apartment, as well as a number of special assessments.

Plaintiff further asserts that the Statute of Frauds does not bar her claim for specific performance given its statutory exception as set forth at General Obligations Law §5-703(4). She also argues that defendant's only defense to her promissory estoppel claim, other than clean hands, was to raise an issue of fact regarding whether the oral agreement was to last for the plaintiff's entire lifetime.

Plaintiff argues that she will be irreparably harmed if the preliminary injunction is not granted since she can be evicted from her home. She also asserts that the balance of the equities weigh in her favor because, inter alia, evidence submitted in support of the motion reflects that the apartment tripled in value while she has lived there.

In response to the cross motion, plaintiff argues that defendant's motion to dismiss must be denied since defendant failed to establish a defense with "documentary evidence" within the meaning of CPLR 3211(a)(1). On the contrary, asserts plaintiff, defendant conceded that the parties had an agreement pursuant to which she (plaintiff) was permitted to occupy the apartment with the understanding that she paid the common charges.

Finally, plaintiff asserts that there is no basis for defendant's argument that the notice of pendency should be canceled and that costs should be awarded against her for failing to bring this action in good faith.

In a reply affidavit in further support of her motion and in further opposition to the cross [*6]motion, plaintiff argues that, although defendant now maintains that she (plaintiff) failed to pay approximately $25,000 in common charges, defendant never asked for that money but instead always paid the charges for plaintiff when the latter was unable to pay them.

In an affirmation in reply to plaintiff's opposition to the cross motion, defendant essentially asserts that her affidavit refutes all of plaintiff's allegations and warrants the dismissal of the complaint. In the alternative, defendant asks that, if its motion to dismiss is not granted pursuant to CPLR 3211(a)(1), that this Court treat the motion as one for summary judgment pursuant to CPLR 3212. Finally, defendant reiterates her argument regarding the cancellation of the notice of pendency.

CONCLUSIONS OF LAW:

Plaintiff's Motion to Consolidate

CPLR 602(b) provides that "[w]here an action is pending in the [S]upreme [C]ourt it may, upon motion, remove to itself an action pending in another court and consolidate it or have tried together with that in the [S]upreme [C]ourt." Although there is usually a "strong preference" for resolving holdover proceedings in Housing Court (Civil Court) (44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440, 441 [1st Dept 2004]), where complete relief cannot be provided by the Housing Court and common questions of law and fact exist, judicial economy is served by consolidation of a Housing Court and Supreme Court matter. See Murphy v 317-319 Second Realty LLC, 95 AD3d 443 (1st Dept 2012). The decision whether to consolidate is one to be made in the Court's discretion. Id.

Here, this Court, in its discretion, denies the motion to consolidate the Civil Court action with the captioned action. The Civil Court action is a summary holdover proceeding, whereas the captioned action seeks equitable relief involving completely different proof than that in the summary proceeding. Since common issues of law and fact do not exist in the two actions, there is no reason to depart from the strong preference for resolving the holdover proceeding in Civil Court.

Plaintiff's Motion For A Preliminary Injunction

The decision to grant a preliminary injunction rests in the discretion of the Supreme Court. See Doe v Axelrod, 73 NY2d 748, 750 (1988).

A preliminary injunction substantially limits a defendant's rights and is thus an extraordinary provisional remedy requiring a special showing. Accordingly, a preliminary injunction will only be granted when the party seeking such relief demonstrates a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party. With respect to likelihood of success on the merits, the threshold inquiry is whether the proponent has tendered sufficient evidence demonstrating ultimate success in the underlying action. While the proponent of a preliminary injunction need not tender conclusive proof beyond any factual dispute establishing ultimate success in the underlying action, "[a] party seeking the drastic remedy of a preliminary injunction must [nevertheless] establish a clear right to that relief under the law and the undisputed facts [*7]upon the moving papers". Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction (citations omitted).

1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, 23 (1st Dept 2011).

Based on the foregoing principles of law, this Court, in its discretion, denies plaintiff's motion for a preliminary injunction. Initially, this Court notes that plaintiff has not established its entitlement to such relief because the facts, as set forth in her moving papers, are disputed. See 1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, supra at 23, citing Gagnon Bus Co., Inc. v Vallo Transp., Ltd., 13 AD3d 334, 335 (2d Dept 2004). Indeed, plaintiff admits in her motion papers that the "material disputed issue of fact on this motion is the nature of the promise that [defendant] made to [plaintiff]." Pltf.'s Memo. Of Law In Opp. To Cross Mot., at p. 7.

Further, plaintiff's motion is based on statements which are conclusory and/or lack evidentiary detail. See 1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, supra at 23, citing Village of Honeoye Falls v Elmer, 69 AD2d 1010 (4th Dept 1979). Specifically, in her affidavit in support of the motion, plaintiff states:

1. "This relief is necessary to prevent my eviction from the [a]partment, in which I hold a life estate." Pltf.'s Aff. In Supp., at par. 3. Plaintiff's representation that she holds a life estate is utterly conclusory. 2. Defendant granted her power of attorney to purchase the apartment but does not annex the power of attorney to her motion. Id., at pars. 10-11.[FN2] 3. She "managed the apartment's affairs, interacting with [the Board] and managing agent for necessary maintenance." Id., at par. 16. This statement is unsupported by any evidence.4. She "expended significant time, energy and effort with the Board in helping to shape the vision and execution of the Condominium's renovation of the Building lobby. The renovation of the Building's lobby has increased the value of the [a]partment." Id., at par. 17. This statement is conclusory and unsupported by any evidence other than internet printouts reflecting the values of other units in defendant's building. See Ex. 3 to Pltf.'s Mot. Plaintiff has not, however, presented any evidence regarding the actual value of the apartment. 5. "Since purchasing the [a]partment, I have paid for and supervised the replacement of the [a]partment's heating and air conditioning units, washer/dryer, dishwasher, flooring and various other appliances and also paid for painting the [a]partment on multiple occasions." Id., at par. 18. However, plaintiff does not support this contention with any [*8]documentation. Additionally, plaintiff, even assuming such expenditures, fails to indicate how these purchases or replacements were made for any reason other than to enhance her own living conditions or made for any reason other than ordinary care of the apartment.6. Defendant granted plaintiff power of attorney to conduct all transactions to refinance the Empire apartment. Id., at par. 29. Plaintiff found tenants who would lease the Empire apartment at a profit to defendant, was responsible for dealing with the problems of those tenants, and acted as a project manager when repairs needed to be performed due to a leak at the Empire apartment. Id., at pars. 25-27. However, plaintiff submits no documentation that this occurred. Further, plaintiff does not explain how her actions in regard to the Empire apartment were in any way related to the apartment. 7. She paid for the insurance on the Jeffersonville property out of her own money. Id., at par. 37. However, plaintiff submits no evidence supporting this statement. Nor does plaintiff explain how her payment was in any way connected to the apartment or whether defendant ever paid her back. 8. Plaintiff claims that, "[u]pon information and belief, when [defendant] bought the [a]partment she paid $826,000" (Id., at par. 47) and that the apartment is now worth approximately $2,607,164.73. Id., at par. 50. Plaintiff states "I believe that the tripling of the [a]partment's value over the past fifteen years was not caused only by market forces, but because of the excellent condition in which I have kept the [a]partment, and the improvements that I have made to it." Id., at par. 51. First, plaintiff fails to submit any evidence regarding the purchase price of the apartment. It is rather curious that she states the price "upon information and belief" since, given her emphasis on her allegation that she had power of attorney to purchase the unit, she would presumably know the price and would have records regarding the sale. Additionally, to the extent the value of the apartment has allegedly increased, plaintiff has not presented evidence on this motion reflecting how she contributed in any way to such increase other than pointing to expenditures which enhanced her living conditions or represented expenses for anything other than ordinary care.

Nor is plaintiff entitled to a preliminary injunction since she has not established a likelihood of success on the merits, the prospect of irreparable injury if the injunction is not granted or a balancing of the equities in her favor. See Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 (1990).

Likelihood of Success on the Merits

Constructive Trust

Plaintiff's first cause of action seeks to impose a constructive trust. Four factors are generally considered in ascertaining whether a constructive trust should be imposed on a property interest: 1) the existence of a fiduciary or confidential relationship; 2) an express or implied promise; 3) a transfer in reliance on the promise; and 4) unjust enrichment. See Sharp v [*9]Kosmalski, 40 NY2d 119, 121 (1976). Although defendant correctly asserts that the Statute of Frauds prevents enforcement of an oral agreement to convey an interest in land (See General Obligations Law § 5-703), a constructive trust can arise if these elements are met. See McGrath v Hilding, 41 NY2d 625, 628-629 (1977).

Although plaintiff has not submitted formal proof that she was granted power of attorney by defendant, defendant does not dispute that the parties have been close friends since 1978. The Appellate Division, First Department has "not applied a rigid standard when identifying relationships that can be the predicate for imposition of a constructive trust." Thomas v Thomas, 70 AD3d 588, 591 (1st Dept 2010). Thus, plaintiff has established a confidential relationship with defendant for the purpose of imposing a constructive trust.

However, plaintiff has not established a promise. Although plaintiff correctly cites Sharp v Kosmalski, supra, for the proposition that an express promise is not necessary to give rise to a constructive trust and that a promise can be implied from the circumstances of the transaction, the Court declines to do so here based on the conclusory nature of plaintiff's arguments regarding the alleged promise. Specifically, plaintiff claims that "the parties have always treated the [a]partment as if it belonged to [plaintiff], at least for her lifetime." Plaintiff's Memo. Of Law, at p. 7. This contention begs credulity, since the deed is in defendant's name (Ex. A to Cross Mot) and plaintiff has not produced any evidence establishing, or even suggesting, that there was a specific amount of time during which she (plaintiff) was permitted to remain in the apartment.

Nor has plaintiff established a "transfer in reliance" on defendant's promise. In support of this claim, plaintiff asserts that she spent her time, money and energy maintaining and improving the apartment and spent significant sums on common charges. However, she fails, as noted above, to provide any evidence of such expenses or efforts and fails to explain how they were performed specifically in reliance on the alleged promise.

Even if everything plaintiff says she did to improve the value of the apartment were true, such would not establish a "transfer in reliance." Plaintiff sets forth a list of items which she claims she performed to increase the value of the apartment, including managing the apartment's affairs, interacting with the managing agent, helping the Board to renovate the lobby, replacing appliances, and painting the apartment. However, such acts are day-to-day tasks which can be performed by any apartment dweller, and there is no proof that such were performed by plaintiff in specific reliance on any promise by defendant. Plaintiff's alleged acts with respect to the Empire apartment and the Jeffersonville property are even more remote, as there is absolutely no indication that they were even related in any way to the apartment.

Finally, as noted above, plaintiff has failed to submit evidence sufficient to establish unjust enrichment since she has not submitted documentation regarding the price for which the apartment was purchased or the current value of the apartment. Despite this documentary failure, she admits that, at the time she moved into the apartment, it was worth approximately $826,000 and that it is now worth approximately $2.5 million." Pltf.'s Memo. Of Law in Opp. To Cross Mot., at p. 14. It is quite ironic that plaintiff can allege the unjust enrichment of defendant after having paid merely common charges and the purchase or replacement of appliances, as needed, to live in what she admits was a very expensive apartment for 15 years at the largesse of her friend. Additionally, plaintiff fails to take into consideration the general effects of what is universally admitted to be a very positive market for apartment values which [*10]have risen astronomically in New York City.

Thus, plaintiff has failed to establish a likelihood of success on the merits of her claim for a constructive trust.

Breach of Contract

Plaintiff has failed to establish the likelihood of success on the merits of her breach of contract claim, since she has failed to submit sufficient evidence on her motion supporting this claim. See Doe v Axelrod, supra, at 750-751. Specifically, plaintiff alleges that, based on defendant's promise that she (plaintiff) would have a life estate in the apartment, plaintiff moved to the apartment from her home in Rockville Centre, New York. Ex. 6 to Pltf.'s Aff., at par. 74. However, no proof of such a move is annexed to the motion. Plaintiff further asserts that she has paid common charges on the apartment for 15 years and has paid for the upkeep of the apartment during that time (Id., at par. 75) but does not annex statements, receipts or invoices reflecting such payments. Similarly, plaintiff maintains that she "managed [defendant's] other real estate affairs in New York, all without compensation" but does not submit any proof of such work. Id., at par. 77.

Promissory Estoppel

Similarly, plaintiff has failed to establish the likelihood of success on the merits of her claim of promissory estoppel, since she has fails to annex to her motion evidence supporting her claim. Plaintiff again claims that, in exchange for defendant's promise that she (plaintiff) could live in the apartment for the rest of her life, she maintained the apartment, paid common charges, acted as defendant's attorney-in-fact, and managed defendant's real estate affairs, and that these acts were unequivocally referable to defendant's promise. See Doe v Axelrod, supra, at 750-751.

Irreparable Injury

Plaintiff asserts that she is "not a wealthy person" and that she "could become homeless" if a preliminary injunction is not granted because her "current income is very limited and she does "not have the up-front monies that [she] would need to obtain a new apartment." Pltf.'s Aff., at pars. 52-53. This Court finds this to be a rather disingenuous contention for several reasons. First, plaintiff has not submitted any evidence whatsoever of financial hardship. Although plaintiff admits that she missed a few common charge payments, her affidavit plays down these missed payments, and plaintiff focuses on the years of common charge payments she made and the years she spent money on improving the apartment.

Plaintiff's representation that if she is evicted she will "certainly be unable to find comparable housing" is conclusory and therefore insufficient to warrant the granting of a preliminary injunction. See 1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, supra at 23. Moreover, plaintiff's inability to find comparable housing, especially after she has enjoyed the benefit of living in defendant's Upper East Side apartment for 15 years, paying only the common charges, is a far cry from being homeless. Indeed, even assuming, arguendo, that plaintiff has some degree of financial difficulty, she concedes that defendant offered her $3,500 per month towards the rental of an apartment if she vacated the premises. Pltf.'s Aff., at par. 44.

In support of her argument that eviction from one's home constitutes irreparable injury, [*11]plaintiff cites two New York decisions, Jones v Park Front Apts., LLC, 73 AD3d 612 (1st Dept 2010) and Recalde v Bae Cleaners, Inc., 20 Misc 3d 827 (Sup Ct New York County 2008). However, those case are distinguishable since, in each, plaintiff demonstrated a likelihood of success on the merits.

Balancing of the Equities

In asserting that the balancing of the equities weigh in her favor, plaintiff asserts that evidence she submitted in support of this motion "suggests" that, based on her contributions of time and labor in caring for and improving the apartment, its value "over time has more than tripled, from around $826,000 to approximately $2.5 million." Pltf.'s Memo. Of Law in Opp. To Cross Mot., at p. 14. Plaintiff further asserts that she spent her own money caring for the Jeffersonville property and that her management of the Empire apartment allowed defendant to sell that property at a profit of $1,622,500 after 14 years. However, as noted above, plaintiff fails to submit any evidence supporting these claims and thus has failed to establish her entitlement to a preliminary injunction. Additionally, as pointed out supra, plaintiff fails to take into consideration, the general effects of what is universally admitted to be a very positive market for apartment values in New York City.

Defendant's Cross Motion To Dismiss The Complaint

Defendant's cross motion to dismiss the complaint pursuant to CPLR 3211(a)(1) must be denied. That section requires the movant to provide documentary evidence which "conclusively establishes a defense to the asserted claims as a matter of law." Leon v Martinez, 84 NY2d 83, 88. Affidavits, such as defendant's, which "do no more than assert the inaccuracy of plaintiff[ s] allegations . . . may not be considered, in the context of a motion to dismiss, for the purpose of determining whether there is evidentiary support for the complaint . . . and do not otherwise conclusively establish a defense to the asserted claims as a matter of law" (citations omitted). Amsterdam Hospitality Group, LLC v Marshall-Alan Assocs., Inc., 120 AD3d 431, 432 (1st Dept 2014). Other than her affidavit, the only other documents defendant submits are the deed to the apartment and the common charge ledgers, which do not establish her entitlement to dismissal as a matter of law.

Defendant's Cross Motion to Cancel Notice of Pendency

Defendant cross moves to cancel plaintiff's notice of pendency pursuant to CPLR 6514(b). That section provides the following: "(b) Discretionary cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith." A notice of pendency may be filed pursuant to CPLR 6501 where "the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property." In determining whether an action was commenced in good faith, a court is "essentially limited to reviewing the pleading to ascertain whether the action falls within the scope of CPLR 6501." 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 320 (1984). Plaintiff's likelihood of success on the merits is irrelevant. Id.

The party seeking to cancel the notice of pendency must demonstrate the requisite lack of good faith.This burden is not "easily met" since defendant must raise "at least a substantial question" as to whether plaintiff has not commenced or prosecuted the action in good faith. (citations omitted).

551 West Chelsea Partners LLC v 556 Holding LLC, 40 AD3d 546, 548 (1st Dept 2007).

Here, defendant failed to meet its burden. Plaintiff properly filed a notice of pendency since it sought a judgment which would affect an interest in the apartment. "An action for the imposition of a constructive trust seeks a judgment affecting title to, or the possession, use or enjoyment of real property within the purview of CPLR 6501(citations omitted)." Peterson v Kelly, 173 AD2d 688 (2d Dept 1991). Thus, that branch of defendant's cross motion seeking to cancel the notice of pendency is denied.

Since the motion to cancel the notice of pendency is denied, that branch of the motion seeking relief under CPLR 6514 (c), which imposes costs and expenses in an order cancelling a notice of pendency, is denied as well.

Therefore, in accordance with the foregoing, it is hereby:

ORDERED that the branch of plaintiff's motion seeking consolidation of the captioned action with the summary proceeding commenced by defendant against plaintiff in the Civil Court of the City of New York, New York County under Index Number L & T 083044-NLT-2015 is denied; and it is further,

ORDERED that the branch of plaintiff's motion seeking a preliminary injunction is denied; and it is further,

ORDERED that the branch of defendant's cross motion seeking to dismiss the complaint is denied; and it is further,

ORDERED that the branch of defendant's cross motion seeking to cancel the notice of pendency and for related costs is denied; and it is further,

ORDERED that this constitutes the decision and order of this Court.

DATED: March 1, 2016

ENTER:

______________________________

HON. KATHRYN E. FREED, J.S.C. Footnotes

Footnote 1:Plaintiff was granted a temporary restraining order preventing defendant from evicting her pending resolution of this motion.

Footnote 2:Although common charge ledgers annexed to defendant's cross motion reflect that plaintiff had power of attorney for defendant, they do not show when the power of attorney was granted.