Wright v Smith

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Wright v Smith 2019 NY Slip Op 33808(U) December 23, 2019 Supreme Court, Kings County Docket Number: 523544/2019 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 01/03/2020 INDEX NO. 523544/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/07/2020 At Part 84 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at Civic Center, Brooklyn, New York on the,;('.5 day of December 2019 PRESENT: HON. CAROLYNE.WADE, Justice -------------------------------------------------------------------------X DELROY WRIGHT, Plaintiff, Index No. 523544/2019 DECIBIOtbRD~ -against- LESLIE SMITH, AIK/A JOSEPHINE SMITH AMELDA HAZLE, AIK/A AMELDA SMITH DURYEA PL LLC, ~ ,.._, = ,_ ~ I Defendants. w -------------------------------------------------------------------------X -:,-;-:; <n "T\g ;:--= s:; \"!\~.:..:'; 0-< c-, I.- ~ _,, Recitation, as required by CPLR § 2219(a), of the papers considered iu the review of plaintiffDELROY WRIGHT's order to show cause: Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed ........................ . Cross~Motion and Affidavits/Affirmations....... .. Answering Affidavits/Affirmations ..................... . Reply Affidavits/Affirmations .•••••••.••.•.••••••.•.••••••. Memorandum of Law.......................................... . 1 of 4 _ _1_ _ _ _2_._ _ [*FILED: 2] KINGS COUNTY CLERK 01/03/2020 NYSCEF DOC. NO. 35 INDEX NO. 523544/2019 RECEIVED NYSCEF: 01/07/2020 Upon the foregoing cited papers and after oral argilment, plaintiffDELROY WRIGHT moves, by an order to show cause, for an Order staying a Landlord/Tenant eviction proceeding in Kings County Civil Court, brought by DURYEA PL LLC against him and others. Relevant Facts The underlying acti~n sounding in constructive trust, inter alia, was brought to compel the determination of claims with respect to real property located at 14 Duryea Place, Brooklyn, New York (the "Property"). Plaintiff DELROY WRIGHT ("Plaintiff'), defendant AMELDA SMITH ("Amelda") and defendant LESLIE SMITH ("Leslie") are relatives. Plaintiff's wife, Pavelle HurdWright ("Pavelle"), is the former owner of the Property. The Property consists ofa residential and a commercial unit. Plaintiff and Pave lie lived on the second floor and operated a cafe on the first floor. Pavelle lost the Property as the result.of a foreclosure proceeding. On April 27, 2015, Defendant DURYEA PL LLC (the "LLC") (collectively with Amelda and Leslie, "Defendants") purchased the · Property by way of a Referee's Deed. Leslie signed the Real Property Transfer Report as the Managing Member of the LLC. On May 3, 2015, the LLC, as landlord, entered into ·a commercial lease agreement with Plaintiff and Pavelle, as tenants. In April 2019, a holdover proceeding was commenced by the LLC to recover possession of the residential unit on the Property that was occupied by Plaintiff. By a decision dated September I 9, 2019, the Hon. Michael Weisberg, JHCfound, inter alia, that Plaintiff failed to meet the elements of constructive trust, granted the LLC a final judgment of possession, and issued a warrant of eviction against him (Defendants' opposition, exhibit "B"). Thereafter, a separate commercial landlord/tenant proceeding was brought in June 2019 by the LLC against Plaintiff and Pavelle for nonpayment of their commercial rent. By a decision dated 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 01/03/2020 INDEX NO. 523544/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/07/2020 November 14, 2019, the Hon. Ira R. Greenberg granted the LLC $126,829.84 in rent arrears, and a judgmerit of possession for the commercial unit (id., exhibit "C"). Arguments In support of his application to stay the eviction, Plaintiff alleges that Amelda and his other family members agreed to form the LLC, in which he would be 100% owner, so that they could bid on the Property at the foreclosure (aff ofDelroy Wright, if 7) 1• He claims that his family agreed to lend him money (aff of Leila Rose-Gordon, aff, if 15), and that Leslie would be the managing partner of the LLC (aff ofDelroy Wright, if 7). Plaintiff alleges that once he paid off the loan, he would "take over" the LLC (id.). He further avers that he gave Amelda approximately $18,000.00 before the closing, $130,000.00 in the first year after the closing, and that he has been paying the mortgage on the Property (id., if 8-10). He argues that the conveyance of the Property to him is warranted on the ground of constructive trust, and that "only a temporary restraining order and a preliminary injunction can afford the protection to the Plaintiff to which he is entitled" (aff of Leila Rose-Gordon, aff, if 2). lit opposition, Defendants submitted an affidavit from Leslie, who asserts that Plaintiff does not currently reside at the Property; thus, he will not be irreparably harmed by the eviction (aff of Leslie Smith, if 3). Leslie also claims that she and her sister are the only members of the LLC, and, as the owners of the Property, they have been paying the mortgage, water, taxes and other expenses (id., if 4). She avers that Plaintiff has no involvement in the LLC (id., if 39), and that Amelda denied his request for a loan due to Plaintiff's history of poor money management (id., if 8). Leslie also submitted Plaintiff's affidavit and his attorney Leila Rose-Gordon, Esq.'s affirmation in the underlying Housing Court matter, which provided inconsistent percentages of Plaintiff's ownership in the LLC (id., exhibits HG" and "I''). 1 As aforementioned, the LLC purchased the Property by way ofa Referee's Deed on April 27, 2015. 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 01/03/2020 INDEX NO. 523544/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/07/2020 Analysis To be entitled to a preliminary injunction, the movant must establish (I) a likelihood of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (Ruiz v Meloney, 26 AD3d 485, 485-86 [2d Dept 2006]; W T. Grant Co. v Srogi, 52 NY2d 496, 517 [ 1981 ]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Doe v Axelrod, 73 NY2d 748, 750 [1988]; Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 604 [2d Dept 2004]). A meticulous examination of the submissions. reveals that Plaintiff has not addressed, much less established, his likelihood of success on the merits, irreparable injury or balancing of equities, to support his request for a preliminary injunction. Notably, Plaintiffs claims regarding his ownership of the LLC and his alleged payments of the mortgage are unsubstantiated, and this finding is consistent with the September 19, 2019 decision by Hon. Michael Weisberg that Plaintiff had not demonstrated the elements of a constructive trust. Accordingly, based upon the above, it is ORDERED that plaintiff DELROY WRIGHT's order to show cause for an Order staying the Landlord/Tenant proceeding in Kings County Civil Court brought by DURYEA PL LLC against him and others.is DENIED. This constitutes the Decision and Order of the court. · ('") C-'O I' r. ON. CAR Cl YN I§ WAPJ:j 'f' ~- tivG su,0 r~cME COQRT JLlt:nc,i:;, HON. OLYNE. WADE ACTING SUPREME COURT JUSTICE 4 4 of 4

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