Plaintiff, John Versace, (“Versace”) sued his sister, Defendant, Cathy Versace Robinson, (“Versace Robinson”) in Columbia County New York Supreme Court regarding real property in Columbia County, which had been solely owned by their mother, Joan Versace, until May 12, 2009, when she conveyed a fee interest in the property to Versace Robinson, reserving a life estate deed for herself.
Versace claims that an agreement was made at that time that the fee interest would be placed solely in the name of Versace Robinson to protect the property from possible liens or judgments which might be incurred by Versace in his construction business. Upon the death of Joan Versace, the siblings would sell the property and equally divide the net proceeds. Versace alleges that his sister currently intends to sell the premises for her sole benefit. He asserted claims for breach of the alleged agreement, constructive trust, and fraudulent inducement while also seeking credit for improvements he claims to have made in reliance upon Versace Robinson’s representations.
Versace Robinson denies the existence of an agreement and claims Versace has locked her out of the house and created a mess on the property consisting of construction debris and garbage. She has interposed counterclaims seeking damages for waste, an award of rent and immediate possession of the property. Versace Robinson moved for interim relief requiring Versace to vacate the premises or, alternatively, requiring him to pay rent in the sum of $4,000.00 per month.
Versace Robinson claims that Joan Versace’s intent was to convey to her alone the fee interest as reflected in the Deed executed on May 12, 2009. Versace Robinson is the only named borrower on the Note and Mortgage executed simultaneously with the Deed. She denies the existence of a close familial relationship and the agreement alleged by Versace. Versace Robinson asserts that the property must be sold, but she is prevented from doing so while her brother occupies it. He has locked her out of the house. She claims Versace has created a mess consisting of construction debris and garbage such that no reputable realtor would even attempt to sell the property in its current condition. She seeks possession so that she can begin the cleanup and place the property on the market.
In opposition, Versace claims that, in accordance with the alleged agreement, he has paid one-half of the mortgage, taxes and insurance on the property. Payments of his half of the mortgage were made in cash to his sister who then paid the full amount to their mother. Versace asserts that the fact that Joan Versace left her residual estate to the siblings in equal shares reflects her intention to have the siblings share the real property equally as well, consistent with their agreement. He claims that Joan Versace suffered from ill health toward the end of her life and he was her caretaker through those difficult times. He claims his sister has come on the property on occasions when he was not present and has gone through his belongings, making him feel unsafe. In response, he has changed the locks on the house for his personal security.
In reply, Versace Robinson submits the affidavit of Virginia D. Benedict, Esq., attesting to conversations she had with Joan Versace in 2018 while preparing her will, as evidenced by a letter written contemporaneously.
Versace argued, and the Court agreed, that Versace Robinson’s submissions do not indicate the grounds for the relief she seeks. She fails to identify any statute or rule of law pursuant to which she asserts a right to interim relief. As her motion seeks an order requiring Versace to immediately vacate the premises, the Court construes the motion as one seeking a preliminary injunction, pursuant to CPLR §6301.
The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor. The Court found that Versace Robinson has not demonstrated a likelihood of success on the merits with respect to her counterclaim for immediate sole possession of the property. Although the Deed is in her name only, Versace’s claims in opposition are sufficient to establish, at this preliminary stage, the elements of a constructive trust, which are a confidential relationship, a promise, a transfer in reliance thereon and unjust enrichment.
Versace’s submission establishes a confidential relationship with his sister; her promise to sell the property upon the death of the mother and equally divide the proceeds; the transfer by Joan Versace to only Versace Robinson in reliance on the agreement, and an unjust enrichment. He claims to have paid one-half of the mortgage, taxes, and insurance in reliance upon representations made by Versace Robinson. The Court found that structures erected on the property lend credence to his claim of a constructive trust and supports his claim of an unjust enrichment.
Furthermore, Versace Robinson counterclaimed for waste. Waste is defined as any “destruction, misuse, alteration or neglect of premises by one lawfully in possession thereof to the prejudice of the…interest therein of another.” While photos submitted by Versace Robinson depict several piles of construction debris which are unsightly, she failed to demonstrate the element of irreparable injury. If she prevails on this cause of action, money damages would adequately compensate her for the cost of cleanup.
Versace Robinson has not demonstrated her likelihood of success on the merits as to her claim for rent, nor has she established by competent evidence the fair rental value of the premises. Furthermore, she has not established that she would sustain irreparable injury should she eventually prevail on this claim, as a judgment for past rent due would make her whole for any unpaid rent. Consequently, the motion for interim relief was denied. Nonetheless, the Court directed that Versace provide Versace Robinson with at least one copy of all working house keys because she is the titled owner and she may not be excluded from the property. The motion for interim relief in the nature of an order directing John Versace to immediately vacate the premises or pay $4,000.00 per month in rent was denied.
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