FILED: KINGS COUNTY CLERK 06/15/2020 04:52 PM
`FILED: KINGS COUNTY CLERK OGEZOZO 04:52 P
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`NYSCEF DOC. NO. 109
`NYSCEF DOC. NO. 109
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`INDEX NO. 512923/2019
`INDEX NO' 512923/2019
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`R«C«IV«D VYSCEF: 06/15/2020
`RECEIVED NYSCEF: 06/15/2020
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`At an IAS Term, Part 64 of the
`Supreme Court of the State of New
`York, held in and for the County of
`Kings, at the Courthouse, at Civic
`Center, Brooklyn, New York, on the
`12th day of May, 2020.
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`DECISION/ORDER
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`Index No. 512923/19
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`P R E S E N T:
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`HON. KATHY J. KING,
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`Justice
`____________________________________ X
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`MARCO CHAVEZ,
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`Plaintiff,
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`- against —
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`FREDDIE MORALES, NELSON MORALES,
`JEREMY MORALES, 3RD GENERATION
`MADISON ST LLC, AND 923 LAFAYETTE
`DEVELOPMENT
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`Defendants.
`____________________________________ X
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`The following papers number 1 to 4 read herein:
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`Papers Numbered
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`Notice of Motion/Order to Show Cause/
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`Petition/Cross Motion and
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`Affidavits (Affirmations) Annexed
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`Opposing Affidavits (Affirmations)
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`Reply Affidavits (Affirmations)
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`1-2
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`3,4
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`5,6
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`Plaintiff, Marco Chavez, moves by order to show cause, for an order seeking. a permanent
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`injunction enjoining defendants from all proceedings to: 1) remove plaintiff and plaintiffs
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`possessions, transfer, sell, encumber, or alienate the properties located at 923 Lafayette Avenue,
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`Brooklyn, NY (Block 1606 Lot 61) and 921A Lafayette Avenue. Brooklyn, NY (Block 1606 Lot
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`FILED: KINGS COUNTY CLERK 06/15/2020 04:52 PM
`FILED: KINGS COUNTY CLERK 061-32020 04:52 P
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`NYSCEF DOC. NO. 109
`NYSCEF DOC. NO. 109
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`INDEX NO. 512923/2019
`INDEX NO- 512923/2019
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`R«C«IV«D VYSCEF: 06/15/2020
`RECEIVED NYSCEF: 06/15/2020
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`62). and 2) interfering with plaintiffs access to the premises known as 923 Lafayette Avenue,
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`Brooklyn, NY (Block 1606 Lot 61) and 921A Lafayette Avenue, Brooklyn. NY (Block 1606 Lot
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`62). Upon the signing. of the order to Show cause, a temporary restraining order was granted for
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`the requested reliefpending the determination ofthe within motion. Defendants, Freddie Morales.
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`Nelson Morales, Jeremy Morales and 3rd Generation Madison St. LLC. submitted opposition on
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`It is well settled that the courts consider the granting of an injunction to be a drastic remedy
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`only to be used in the rarest of circumstances (see Uniformed Firefighters Ass ’n ofGreater N. Y. v
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`City of NK, 79 NY2d 236, 241 [1992]). A preliminary injunction may be granted where the
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`following criteria is met; 1) probability of success on the merits of the underlying action; 2) danger
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`of irreparable injury in the absence of an injunction; and 3) a balancing of the equities (see Aetna
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`Ins. Co. v. Capasso, 75 NY2d 860, 862 [1990]). Further, plaintiff has the burden of establishing
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`these three elements by clear and convincing evidence (see Network Financial Planning, Inc. v.
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`Prudential-Bache Sec, -Inc., 194 AD2d 651, 652 [2d Dept 1993]).
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`Here, defendant contends that
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`the gravamen of plaintiff’s complaint
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`is based on a
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`constructive trust, notwithstanding that the complaint enumerates causes of action of fraudulent
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`conveyance/quiet title, declaratory judgment, rescission and permanent injunction. The Court
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`agrees. A review of the moving papers indicates that plaintiff cannot demonstrate a likelihood of
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`success on the merits on plaintiff’s underlying constructive trust action.
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`In order "[t]o state a
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`cause of action for the imposition of a constructive trust, the plaintiffs must plead and prove four
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`essential elements: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in
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`reliance thereon, and (4) unjust enrichment." (Doxey v. Glen Cove Community Dev. Agency, 28
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`AD3d 511, 512 [2d Dept 2006]). Here, plaintiffs claim of a familial relationship is disputed and
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`FILED: KINGS COUNTY CLERK 06/15/2020 04:52 PM
`FILED: KINGS COUNTY CLERK 061-32020 04:52 P
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`NYSCEF DOC. NO. 109
`NYSCEF DOC. NO. 109
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`INDEX NO. 512923/2019
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`R«C«IV«D VYSCEF: 06/15/2020
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`plaintiff fails to set forth facts to demonstrate a confidential or fiduciary relationship between the
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`parties, there is no documentary evidence to establish a promise of payment of the outstanding
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`mortgage and plaintiff’s ownership of the property, and that plaintiff relied on said alleged
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`promise. Finally, there is no showing of unjust enrichment since plaintiff’ 5 claim of ownership
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`and exclusive possession of the subject premises is controverted. While plaintiff may allege that
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`the lease is fraudulent, such assertion is an issue of fact.
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`Additionally, while plaintiff contends that he will be irreparably harmed because “money
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`cannot replace the special place in his heart for the subject properties,” (Plaintiff s Affidavit,
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`Paragraph 27) it is well settled that “as long as the injuries are "compensable in money and capable
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`of calculation, albeit with some difficulty," they are not irreparable (Scoflo v. Mei, 219 AD2d 181,
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`184 [lst Dep't 1996]; see also Price Paper & Twine Co. v. Miller, 182 AD2d 748, 750 [2d Dept
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`1992]).
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`Similarly, since plaintiff has a monetary remedy and defendants have a demonstrable
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`property right, the balance of the equities does not favor granting of a preliminary injunction.
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`Based on the foregoing, plaintiff s motion is denied in its entirety, and all stays are
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`vacated.
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