The following papers read on this motion:Order to Show Cause and Affidavits………………………. XAffirmation in Opposition…………………………………….. XReply Affirmation………………………………………………… XRELIEF REQUESTED*1The plaintiff, by way of Order to Show Cause dated July 18, 2017, obtained an order from the Honorable Robert A. Bruno, pending the hearing and determination of this motion, directing the defendants be restrained and enjoined from proceeding against the plaintiff with their non-payment petition, under Docket #L/T-002372-17, (hereinafter referred to as the “District Court action”), and that pending the hearing and determination of the motion, the defendants are restrained and enjoined from selling, transferring, or disposing the property located at 1621 Wells Street, Valley Stream, New York.The plaintiff, by way of Order to Show Cause, seeks a further order consolidating the District court action with the instant action. The defendants submit opposition. The plaintiff submits a reply affirmation.BACKGROUNDThe plaintiff submits that his brother, defendant Muhummad Adrees, (hereinafter referred to as “Adrees”), owns the subject property, and the *2defendant, Michael R. Sukhu, (hereinafter referred to as “Sukhu”), is his brother’s brother-in-law. The plaintiff resides on the subject property with his wife, daughter and brother. The plaintiff annexes a copy of a written agreement entered into between the plaintiff and the defendants, entitled “Mutual Agreement Sale of House,” (hereinafter referred to as the “agreement”), dated September 13, 2013. The agreement states the defendants would sell him the property for three hundred twenty-five thousand and 00/100 dollars, ($325,000.00), to be paid within three to five years, the agreement would end on September 12, 2018, and the defendant, upon receiving the full payment from the plaintiff, would transfer ownership of the house to the plaintiff. The agreement also provided that the plaintiff will pay rent in the amount of one thousand two hundred and 00/100 dollars, ($1,200.00), per month beginning March 13, 2014, which will increase each year by one hundred and 00/100 dollars, ($100.00), and the rent would not be deducted from the cost of the selling price. The plaintiff also annexes a copy of a signed statement stating “six month rent waived/discount period which was ending March, 2019 will extend to September 13.” Plaintiff also annexes a signed statement by plaintiff and Adrees, numbered 1-5 including that the plaintiff will start paying the mortgage, the defendant, Adrees, will transfer the house once he settles with the bank, plaintiff will not pay rent until Adrees settled with the bank, and that plaintiff paid Adrees an advance of twenty thousand and 00/100 dollars, ($20,000.00).The plaintiff avers that as he was capable of undertaking renovations at the subject property, the defendants agreed to sell the house to the plaintiff for three hundred fifty thousand and 00/100 dollars, ($350,000.00), as “there was an understanding between your deponent and my brother, that because the property was worth less than the balance due on the existing mortgage, my brother wanted ample time to attempt to modify and reduce his mortgage prior to the transfer of the property to your deponent.” The plaintiff avers that they agreed that the defendant, his brother, would pay the utility bills and mortgage since the property was uninhabitable, and those expenses are referred to as “rent.” The plaintiff provides that he made renovations to the property over two to three years, whereby he performed the work and purchased all of the materials and supplies, and from time to time paid a “helper” for assistance. The plaintiff refers to the third agreement whereby “rent” was waived, the defendants required lump payment, which he paid, as acknowledged in the September 14th agreement reflecting twenty thousand and 00/100 dollars, ($20,000.00), was to be credited against the three hundred twenty-five thousand and 00/100 dollars, ($325,000.00), purchase price. The plaintiff avers that he contacted his brother, defendant, Adrees, to complete the transfer, and as Adrees was avoiding him, he contacted the defendant, Sukhu, who insisted on receiving twenty-five thousand and 00/100 dollars, ($25,000.00), as payment to assist the plaintiff. Accordingly, the plaintiff compromised and paid the defendant, Sukhu, seventeen thousand and 00/100 dollars, ($17,000.00), to help the plaintiff consummate the transfer by way of two checks, copies of which he attached. Thereafter, the defendant, Adrees, initiated the non-payment proceeding, the District Court action. The plaintiff, by way of summons and complaint, initiated this action sounding in constructive trust.The defendants, in opposition, submit an affidavit by the defendant, Adrees wife, Maryam Adrees, a non-party, who avers that she “graciously” let the plaintiff and his family move into the house previously occupied by her and husband, that she moved out in September of 2013, and let the plaintiff and his family stay in the house. Mrs. Adrees avers that the plaintiff’s “assertion that the house was vacant for two years is completely untrue,” as she occupied the house during hurricane Sandy with her husband, that there was no damage to the house, and disputes that the plaintiff made the renovations that he claimed. Rather, Mrs. Adrees claims she and her husband put in the wainscoting, replaced the floors, replaced the kitchen appliances, and contrary to the plaintiff’s contentions, there were no problems with the *3electrical wiring, the plumbing, or the heating system, and she and her husband installed the basement floors and walls, and replaced the kitchen cabinets. Additionally, Ms. Adrees avers she never received the purported twenty thousand and 00/100 dollars, ($20,000.00), that the plaintiff claims he paid towards the purchase price.The defendant, Adrees, by way of separate affidavit, asserts the same contentions as his wife, and further avers that his brother, the plaintiff, “made me sign the agreement with great duress,” and promised the defendant that he would keep his parents with him in the house, which he never did. Adrees claims that he only agreed to rent the house to his brother, the plaintiff, for one thousand two hundred and 00/100 dollars, ($1,200.00), per month, as opposed to three thousand and 00/00 dollars, ($3,000.00), under the aforesaid conditions. Adrees claims the signature on the documents “is mine [but] it was fraudulently obtained.” Adrees avers that the plaintiff needed him to sign blank sheets of paper, which he did, upon the misrepresentation that the plaintiff was going to send a letter to his children’s school “to get admission in the local district school.” Adrees further avers that the plaintiff “enjoyed the luxury of free living in my house” since 2013, that the plaintiff never gave him twenty thousand and 00/100 dollars, ($20,000.00), towards the purchase of the house, or rent, and further avers the documents annexed to the motion by the plaintiff are “fake documents.”APPLICABLE LAWIn order to obtain a preliminary injunction, the party seeking the relief must demonstrate a likelihood of success on the merits, that irreparable harm or injury will occur if the relief is not granted and that the balancing of the *4equities favor the party seeking the preliminary injunction. (W.T. Grant Co. v. Srogi, 52 NY2d 496; see also, Town of East Hampton v. Buffa, 157 AD2d 714). A prima facie showing of a reasonable probability of success is sufficient to obtain a preliminary injunction. (Weissman v. Kubasek, 112 AD2d 1086). The existence of issues of fact for trial does not preclude the Court from issuing a preliminary injunction in the appropriate circumstance. (Ma v. Lien, 198 AD2d 186).A constructive trust operates to prevent the holder of property from unjustly enriching himself or herself to the detriment of another. It is an equitable remedy applied where a party establishes four elements: (1) a fiduciary or confidential relationship; (2) a promise, express or implied; (3) a transfer made in reliance upon the promise and (4) unjust enrichment. (Simonds v. Simonds, 408 NYS2d 359). Where all four elements are established, the holder of the property is treated as a trustee for the beneficiary.In order to establish a constructive trust, the plaintiff must establish a confidential or fiduciary relationship, a promise, a transfer in reliance upon the promise and a breach of the promise. (Sharp v. Kosmalski, 40 NY2d 119). The primary purpose of a constructive trust is to avoid unjust enrichment. (Simonds v. Simonds, 45 NY2d 233). A constructive trust will be imposed when title to the property has been acquired under circumstances in which conscience will not permit the retention of that interest. (Lester v. Zimmer, 147 AD2d 340).DISCUSSIONIn this three-prong test to obtain a preliminary injunction, the plaintiff has demonstrated the likelihood of success on the merits, that he will suffer irreparable harm if the relief is not granted, and that the balancing of the equities favors the party seeking the preliminary injunction.The plaintiff has asserted a cause of action for the imposition of a constructive trust as the plaintiff has claimed a confidential or fiduciary relationship, an express promise, a purported transfer was supposed to occur made in reliance thereon, and a party has been unjustly enriched. . (Gottlieb v. Gottlieb, 560 NYS2d 478). The defendant, Adrees, denies plaintiff’s contentions. This Court points out that the existence of issues of fact does not preclude this Court from issuing a preliminary injunction in the appropriate circumstance. (Paterson v. Corbin, 275 AD2d 35). As stated above, a prima facie showing of reasonable probability of success is sufficient to obtain a preliminary injunction. (Weissman v. Kubasek, 112 AD2d 1086).CONCLUSIONIn light of the foregoing, it is herebyORDERED that the temporary order granted by the Honorable Robert A. Bruno, dated July 18, 2017, shall remain in effect, and it is hereby furtherORDERED that branch of the plaintiff’s motion seeking an order consolidating the District Court action with the instant action is denied, and it is hereby furtherORDERED that the plaintiff is hereby directed to post an undertaking in the amount of ten thousand and 00/100 dollars, ($10,000.00), within ten (10) days of service of this order with notice of entry, and the plaintiff shall forward such proof of such undertaking to the defendants and this Court by first class mail within ten (10) days of posting the undertaking, and it is hereby furtherORDERED that should the plaintiff fail to post the undertaking in accordance with the directives of this order, the temporary restraining order herein shall lapse, be void and no longer in effect, and it is hereby furtherORDERED that parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 19th day of January, 2018, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants.E N T E R :________________________________J.S.C.Dated: December 12, 2017
