Papers considered: 1. Notice of Motion dated June 18, 2024; and Affidavit of Cathy Versace Robinson in Support, dated June 6, 2024, with Exhibits 1-6. 2. Affidavit of John Versace in Opposition, dated July 30, 2024, with Exhibits A-B; and Memorandum of Law in Opposition. 3. Reply Affidavit of Virginia D. Benedict, Esq., dated August 1, 2024, with Exhibit A; and Reply Affidavit of Victor M. Myers, Esq., dated August 5, 2024, with Exhibits 7-8. DECISION/ORDER Plaintiff, John Versace, (hereinafter “Versace”), brings this action against his sister, Defendant, Cathy Versace Robinson, (hereinafter “Versace Robinson”), regarding real property situated in the Town of Gallatin, 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 for herself. Versace claims that an agreement was made at that time whereupon 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 asserts 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 has answered. She 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 now moves 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 opposes. PARTIES’ CONTENTIONS Versace Robinson avers 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 avers 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 avers 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. DISCUSSION/STANDARD FOR OBTAINING INTERIM RELIEF Versace argues, and the Court agrees, 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. Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840, 833 N.E.2d 191, 800 N.Y.S.2d 48 (2005); accord Sardino v. Scholet Family Trust, 192 AD3d 1433, 1434 (3d Dept., 2021); Darwish Auto Group, LLC v. TD Bank, N.A., 224 AD3d 1115, 1117 (3d Dept., 2024). The Court finds 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 averments 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. See, Hornett v. Leather, 145 AD2d 814, 815 (3d Dept., 1988); Cinquemani v. Lazio, 37 AD3d 882, 882 (3d Dept., 2007); Salatino v. Salatino, 64 AD3d 923, 924 (3d Dept., 2009). “These elements are not to be rigidly applied, however, and, as an equitable remedy, constructive trust may be imposed whenever necessary to satisfy the demands of justice”. Cinquemani, supra, 37 AD3d at 882. 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 asserts that he has paid one-half of the mortgage, taxes and insurance in reliance upon representations made by Versace Robinson. It is not denied that he has erected structures on the property. Their presence lends credence to his claim of a constructive trust and supports his claim of an unjust enrichment. Furthermore, Versace Robinson has 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”. Gilman v. Abagnale, 235 AD2d 989, 991 (3d Dept., 1997). While photos submitted by Versace Robinson depict several piles of construction debris which are unsightly, she has failed to demonstrate the element of irreparable injury. If she prevails on this cause of action, money damages would adequately compensate Versace Robinson for the cost of cleanup. Finally, 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 must be denied. Nonetheless, in the exercise of the Court’s powers in equity and in the exercise of discretion, the Court will direct that Versace forthwith provide to Versace Robinson at least one copy of any and all working keys to the house on the premises because she is the titled owner and she may not be excluded from the property. Accordingly, it is hereby ORDERED, that 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 is denied; and it is further ORDERED, that within 3 days of the date of this Decision/Order, John Versace will provide to Cathy Versace Robinson, or to her counsel, at least one copy of any and all working keys to the house located at 133 Ridge Road, Town of Gallatin, Columbia County, NY, such that she shall have full access to said house and all interior parts thereof. This shall constitute the Decision/Order of the Court. The Court is e-filing this Decision/Order, relieving the parties of their obligations, pursuant to CPLR §2220, regarding filing and entry of same but that does not relieve the parties of their obligations, if any, regarding service with notice of entry thereon. Dated: September 27, 2024
