Davanzo v Lajara
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Davanzo v Lajara 2020 NY Slip Op 34671(U) September 15, 2020 Supreme Court, Nassau County Docket Number: Index No. 605280/2020 Judge: Denise L. Sher 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] NASSAU COUNTY CLERK 09/22/2020 09:32 AM INDEX INDEX NO. NO. 605280/2020 605280/2020 NYSCEF DOC. DOC. NO. NO. 28 28 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON,.DENISE L SHER Acting Supreme Court Justice TRIAL/IAXPART 33 NASSAU COUNTY ELEANOR DAVANZO, Plaintiff, IndexNo.: 605280/2020 Motion Seq. No.: 01 Motion Date: 07/13/2020 -against- NICOLE DANA LAJARA, Defendant. The following papers have been read oil this motion: Order to Show Cause. Affidavit, Affinnation and Exhibits· Affirmation in Opposition, Affidavit and Exhibits Affirmation in Further Support and Exhibits Papers Numbered 1 2 3 Upon the foregoing papers, it is ordered that the motion is decided as follows: Plaintiff moves for.llll order granting a stay during the pendency of the above-captioned proceeding prohibiting defendant, her agents or attorneys, and any and all other person or persons claiming or having any interestin plaintiffs assets, from distributing, expending; paying out or in any other way disposing of or interfering with any of the property, funds; or money which belonged to plaintiff on or before March 19, . 2019, in the Edward Jones account ending in . 8813. Defenclantopposes the motion. In support of the motion, co\lllsel forph1intiffsubmits, in pertinent part, that, "[iJn sum lll14 substance, Defendant is in possession of Ms. DaVanzo's life savings, money which is directly traceabie to the Edward Jones account of Defendant ... , and ifbefendant removes said fun4:S ftom the reach of Ms. DaVarizo, Ms, DaVl1nzo will not likeiy to be abie t~ ever recover the 1 of 7 '''"""" ••••••••••••• ............................. • - • • • - • - - - - - - - - - - - - - - - - - - - - - - - - - - - .. •••••••••••--•""•'" •"•••-•"'•••"'• .. ._,,,y,,,.,,.,MY,h•""""....,, ... _._..., [*FILED: 2] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 money and will suffer irreparable harm .... Ms. DaVanzo has established intent to defraud, complaint (sic)with CPLR § 6:!01(3). Ms. DaVanzo has established that while she was in a state of diminished capacity, herdaughter, Nicole Dana Lajara, whom she trusted, fraudulently divested Ms. DaV anzo of an of her financial and real property possessions on the false pretense that it was the only way to receive long-term care .... Exhibit 2 shows that in March 2019 all the assets in Ms. DaVanzo' s Edward Jones account ending in 8813 were transferred to an Edward Jones internal account ending in 9316. Exhibit 3 shows that the Edward Jones account ending in 9316 belongs to.defendant Nicole.Dana Lajara, Assuming the facts as.alleged are true, Defendant will have no defense to the causes of action of Constructive Trust, Unjust Enrichmenti or Fraud in the Inducement. Defendant has demonstrated the lengths to which she is willing to go to obtain and maintain possession of Ms. DaV anzo' s assets .... Even presented with the facts that Ms. Da.Vanzo never received, nor wants, Medicaid services, Defendant's response Was that· there was 'no way' she waS going to give the assets back to her mother. Now that litigation is underway and {sic) Defendant is alerted to the possibility of having. to disgorge the money transferred to her account at Edward Jones. If Defendant is able to quickly move the Edward Jones money out of the reach of Ms. DaVanzo; even.if Ms. DaVanzo obtains judgment in her favor, Ms. DaVanzo will likely be left with an uncollectible judgment. On the othethand; if Defendant succeeds on the merits in this matter, any harm to Defendant from a mere injunction prohibiting her (sic) utilizing the money transferred to her Edward Jones account will be de minimus; The. balance of the equities thus. favor Ms .. DaVanzo." ·See Plaintiffs Affinnatkm .in SuppoitExhibits 1~3. Plaintiff also .submits anAffidavit fo Support of the Order to Show Ca1.1se. See Plaintiff's Affidavit in Support. 2 of 7 ............................... _ _ _ _ _ ,--,,.,.v• .. ••••••...,.........., .. , , _ •••••••• , _ _ _ , _ _ [*FILED: 3] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 In oppoSition to the motion, counsel for defendant asserts~ in pertinerttpart, that, "[a]s a preliminary matter; Plaintiffs order to show cause must be denied, as Plaintiffs complaint is not verified, and the. affidavit sµbmitted in support of the order to show (sic) lacks any factual support, and refers to said unverified complaint..,. Additionally, Plaintifffails to cite any case law or statUte•in support ofthe telieftequested. Plaintiffs only argument made is pursuant to CPLR § 6201, that 'the defendant, with intentto defraud his· cred,itors ... has assigned, disposed of, encumbered or. secreted property, or removed. it from the state or is about to· do any ofthese · acts ... ' Plaintiff fails to state any facts in which Defendant engaged in any ofthe above acts. Plaintiff sbare boned conclusory allegations that Plaintiff has establish (sic) intent to defraud is insufficient for this court to issue a temporary restraining order. Nicole Lajara, the plaintiffs daughter comes to Court with clean hands, never with the intent to hurt, or take advantage ofher mother. This Court should be aware that Defendant had a power of attorney given to her by her mother even.before the alleged transfers occurred, and has been given access to her mother's bank accounts. Moreover, the Condo (sic)referred to in_the Plaintiffs papers was transferred into Defendant's name, while Plaintiff maintains a life estate, and as per the Plaintiff's own exhibits attached in support ofhet order to show cause, the money that Plaintiff transferred into Defendant's name is still in the account with the exception of a few dollars removed and put to the side for her mother's use. Therefore, Pl ainti ff cannot establish that Defertdant engaged in any of the acts enµrnerated by CPLR § 6201." Counsel for q.efendant further contenqs, inpertineri.t part,. that, "[n]ever was there ill intent on the part of the Defendant, nor was there ariy coercion, fraud, duress or anything other than assisting her mother in carrying out her plan for estate planning and Meclicaid due. to her health situation· and in the event she heeded further care .. ;. Plaintiff in her complaint is seeking a 3 3 of 7 [*FILED: 4] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 return of her Condo (sic) and her assets, howeverin order to undo the transfer, Plaintiffneeds to prove Jack of capacity and/or undue influence. Plaintiff does not claim undue inflt1ence or Jack of capacity. In addition,. there. is no. affidavit from Plaintiff's lawyers or the account manager at. Edward Jones that she didn't want to doJhese transfers. Moreover, there is no evaluation from doctors or tnedical records to show that she· lacked Capacity after the 20 18 stroke. It is clear from the. facts, that Plain.tiff's· counsel failed to do his due diligence· before starting this action, Plaintiff has a monthly income from pension and social. security. Defendant recently became aware that Plaintiff went and leased a car. Defendant is worried that Plaintiffis not in a proper state of mind, and she is afraid for herto drive .. ,. In the instant matter,.the Plaintiff fails to articulate any factual support for the elements of a constructive trust As such Plaintiffs order to show>cause must be denied as Plaintiff is unlikely to have success on the merits. The Plaintiff failed to detail the promise that existed between the Plaintiff and Defendant. The Plaintiff alleges that she agreed to transfer her Condo (sic) and Edward Jones; s assets to Defendant in order to qualify for Medicaid; however she has provided no evidence of any agreement. The Plaintiff also failed to present any factual assertion that a promise was made between Plaintiff and Defendant. Case law on· constructiVe trusts generally requires an ·express or implied promise between the parties, which the Plaintifffailstoallegehere. The Plaintiff makes no such assertion. There Was not one scintilla of proof that an express promise was made between the parties concerning the Condo (sic). contrary. to the terms ofthe del;!d. As such, because the Plaintiff has>not provided any factual support to establish any pro mi s_e between the named parties, the Plaintiff cannot state. a claim for a construeti ve trust. Lastly, to plea(:l the element of' unj.ust enrichrnent\ tp.e :Plaintiff must argue that the Defendant' ... has received a benefit, the retention of which would be unjust.' [citations omitted]. In this matter, Plairtttff has failed to articulate any 'unjust enrichment' that 4 4 of 7 [*FILED: 5] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 has occurred or might occur in the future. Defendant is Plaintiffs only child, and had access to Plaintiffs batik accounts and had a power of attorney prior to. the transfers alleged in the . Complaint. Additionally, Plaintiff provides no account ofhow the Defendant will be unjustly enriched by the transfer of the Condo (sic) into D:efendant' s name; Plaintiff retained a life estate, and there are no other siblings to cut off. Defendant doesn't want Plaintiff to have any financial issues; and if Plaintiff needs money to cover her expenses, she will give such money to Plaintiff. Moreover, as per the PlaiQtiff' s own exhibits attached In support of her order to show cause; the money thatPlaintifftransferred into Defendant's name are still in the account. Plaintiff's claimed harm (loss of assets from Edward Jones account) can be remedied by an award of money damages in an amount determined by his Court. Plaintiff's account value can be quantified and 'injuries compensable in money and capable of calculation,. [even] ·with some difficulty,' are not irreparable~ [citation omittedJ.See Plaintiffs Affirmation in Support Exhibits 1-3. Defendant also submits her own Affidavit in opposition to the motion. See Defendant's Affidavit of Merit. ''To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, ( 1) a likelihood of success on the merits; ·(2) irreparable injury. absent a preliminary·injunction;.and (1)a balancing of the equities in themovant'sfavor (emphasis added)." Greystone Staffing, Inc. v. Warner, i 06 A.D3d 954,965 N. Y.S:2d 599 (2d Dept. 2013) quoting Yedlin v. Lieberman, 102 A.D.3d 7691 961 N.Y.S.2d 186 (2d Dept. 2013). See also CPLR § 630l;A\etna Ins. Co. v. Capasso,75N.Y.2d.860, 5~2 N.YS.2d918 (1990). "The remt::dy i~ con&id¢red a drastic one which should be. gsed sparingly.'' Town of Carmel v. Me}chner, 105 A.D.3d 82, 962.N.Y.S:2d20S (2d Dept. 2013). A movant must satisfy each requirement with •iclear and convincing evidence/' 5 5 of 7 County ofSuffolk v. Givens, 106 A..D ..3q [*FILED: 6] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 943, 967 N; Y. S.2d 387 (2d Dept 2013). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. See Butt v. Malik, 106 ·A. n 3d 849, 965 N.Y.S.2d 540 {2d Dept. 2013); 1650 Realty Associates, LLC v. Golderz Touch Management, Inc., 101 A.D.3d 1016, ·956 N.Y.S.2d 178·(2d Dept.2012). ''To sustain its burden ofdemonstrating a likelihood of success cm the merits:. the movant must demonstrate a cleat tight to relief which is plain from the undisputed facts.'; Matter of Related Properties, Inc: v; Town Bd of Town/Village of Harrison, 22 A.D.3d 587, 802 N .Y.S.2d 221 (2dDept. 2005). See also A/Jinanti v. Pascale, 41 A.D.3d 395,837 N.Y.S.2d 740 (2d Dept. 2007). To sustain their burden of establishing irreparable harm, "the plaintiffis required to show that the irreparable injury to be sustained is more burdensome to him thart the hann that would . be caused by the defendant through the imposition of the injunction.'' Lombard v: Station Square lnnApartments Corp:, supra. See also Klein, Wagner & Morris v. Lawrence A. Klein, AC 1 186 A.D.2d 631,588 N.Y.S2d 424 (2d Dept.1992). Finally, plaintiffmust demonstrate that the balancing of equities favors provisional relief. Plaintiff must show that ''the absence ofa preliminary injunction would cause it greater injury than the imposition of the injunction would inflict upon the defendane• Copart of Connecticut, Inc. v. Long IslandAuto- Realty, LLC, 42 A,D.3d 420, 839 N:Y.$.2d 791 (2d Dept. 2007); Laro Maintenance Corp. v; Culkin, 255 A.D.2d 560, 68'1 N.Y.S;Zd 79 (2d Dept. 1998). Based upon tlie .papers· and arguments before the Court, the Court finds that plaintiff has Jailed to meet her burden, as .described. above, in order to obtain the requested preliminary injunction. 6 66 of 7 . ·······-········-··--·················--------------·-··-·············"'·····""········--- [*FILED: 7] NASSAU COUNTY CLERK 09/22/2020 09:32 AM NYSCEF DOC. DOC. NO. NO. 28 28 INDEX INDEX NO. NO. 605280/2020 605280/2020 RECEIVED NYSCEF: NYSCEF: 09/17/2020 09/17/2020 Therefore, plaintiffs motion for an order granting a stay during the pendency of the above-Captioned proceeding prohibith1g defendant, her agents or attorneys, and any and• all other person or persons·claiming or having any interest in plaintiffs assets, from distributing;; expending, paying out or in any other way disposing of orinterfering with, any of the property, funds; or money which belonged to plaintiff on or before March 19, 2019, in the Edward Jones a.ccountending in 8813, is hereby DENIED. It is further ordered that a Preliminary Conference is scheduled to. be held on October 29, 2020, by the filing of a Proposed Preliminary Conference Order. The parties are hereby directed to the court website.(http://ww2.nycourts.gov/CO URTS/ I 0JD/nassau/cicgeneralforms. shtml) where they will find a fillable PC form with instructions on how to fill it out and when and how to returriit. There will be no adjournments, except by formal ·application pursuant to 22 NYCRR § 125. This constitutes the Decision arid Order of this Court. ENTERED Dated: Mineola, New York September 15, 2020 Sep 22 2020 NASSAU COUNTY COUNTY CLERK"S OFFICE 7 7 of 7 - - - - - - - - - - · · · · · · · · ..............,--~-·-··-· ...... --.,----
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