Terrell v. TerrellTerrell v. Terrell
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered July 17, 2000, which, to the extent appealed, as limited by the briefs, denied plaintiff’s motion for a preliminary injunction staying defendant from taking any action to enforce or execute upon the judgment or warrant of eviction arising out of certain Housing Court proceedings, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the preliminary injunction granted.
In February 1999, Felicia commenced a licensee holdover proceeding against Harry in Housing Court which was settled. In the stipulation of settlement, Harry agreed to the entry of a warrant of eviction against him, which was stayed until September 9, 1999. The stipulation was without prejudice to Harry’s claims of ownership, and permitted him to remain in the house during the stay without paying use and occupancy. It also provided that Harry would bring an action in Supreme Court within three months of the settlement to challenge the validity of the quitclaim deed.
The complaint in this action alleges that Zula Mae did not have the mental capacity to execute the quitclaim deed when she signed it. Harry also moved for a preliminary injunction staying Felicia from evicting him during the pendency of the action. In support of his motion, plaintiff cited Bridgeport Hospital records, where Zula Mae was treated from March 10, 1997 to April 3, 1997. These records contained numerous references to Zula Mae’s periodic confusion as to person, place and time, and to her lack of understanding as to why she was in the hospital. The medical history portion of Zula Mae’s hospital records also contains references to dementia, impaired memory, the onset of slurred speech and “mental status changes.” Notes from the hospital discharge planning conferences also reveal that Zula Mae’s family members, including Felicia, were explicitly made aware of her declining mental status. Harry, however, did not participate in these conferences.
In opposition to the motion for a preliminary injunction, Felicia submitted an affidavit in which she asserted that Zula Mae was fully competent when she deeded the house to her, and that Zula Mae did so because Harry was mistreating her
To obtain a preliminary injunction, Harry was required to establish (1) a likelihood of success on the merits of his claim that his mother lacked the mental capacity to execute the quitclaim deed; (2) irreparable injury in the absence of the injunction; and (3) a balancing of the equities in his favor (see, Aetna Ins. Co. v Capasso,
The second element required for an injunction, irreparable injury, was also sufficiently set forth. Given plaintiff’s disability and his financial constraints, eviction would place him under the extreme hardship of finding a new place to live. Fur
Finally, a balancing of the equities favors granting the preliminary injunction. While the record is unclear whether plaintiff has been paying use and occupancy, the issue of whether, and to what degree, plaintiff may have been unjustly enriched at his niece’s expense can be raised at trial. Thus, despite the evidence of a question of fact as to the decedent’s mental capacity (US Reins. Corp. v Humphreys,
Notes
. In opposition to plaintiff’s motion, Sheila Wimbush Bowles, Zula Mae’s niece, submitted an affidavit stating that on March 10, 1997, she found the decedent in her house, semi-conscious and soaked in vomit and that she had
. Felicia attested that Harry had been using his mother’s MAC card without her permission, and that he had run up approximately $25,000 in credit card debt under her name without her permission.
. Harry has multiple sclerosis. He is confined to a wheelchair and requires 24 hour care by home attendants. He receives Medicaid benefits and $587/month in Supplemental Security Income.