MALEK v. MALEK (2025)

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Wayne P. Saitta, J.), dated December 15, 2022.  The order, insofar as appealed from, denied those branches of the plaintiffs’ motion which were for a preliminary injunction enjoining the defendants from signing checks or documents on behalf of the defendant E & S Realty Management, LLC, and to appoint a receiver.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In August 2017, the plaintiffs commenced this action, inter alia, pursuant to RPAPL article 15 to quiet title to real property located in Brooklyn (hereinafter the property).  The complaint alleged, among other things, that the signature of the plaintiff Mordechai Hersh Malek had been forged on a May 2001 deed, which purportedly conveyed the property to the plaintiff E & S Realty Trust, and that the signatures of the other grantors, including the defendants Shulem Malek, Chaim Hillel Malek, and Chaya Sura Radzminsky, had also been forged.  The complaint sought, among other relief, to cancel the May 2001 deed, as well as a November 2007 deed purportedly conveying the property to the defendant E & S Realty Management, LLC (hereinafter E & S Realty Management).

The plaintiffs subsequently moved, inter alia, for a preliminary injunction enjoining the defendants from selling or transferring the property, altering the ownership of E & S Realty Management and/or the property, and signing checks or documents on behalf of E & S Realty Management, and to appoint a receiver for the property and E & S Realty Management.  In an order dated December 15, 2022, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was for a preliminary injunction only to the extent of enjoining the defendants from selling or transferring the property and the ownership interests of E & S Realty Management during the pendency of the action.  The court also denied those branches of the motion which were for a preliminary injunction enjoining the defendants from signing checks or documents on behalf of E & S Realty Management and to appoint a receiver.  The plaintiffs appeal.

CPLR 6401(a) permits the court, upon a motion by a person with an “apparent interest” in property, to appoint a temporary receiver of that property, inter alia, where “there is danger” that it will be “lost, materially injured or destroyed” (see Rozenberg v. Perlstein, 200 A.D.3d 915, 920, 158 N.Y.S.3d 233).  However, “[t]he appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” (Vardaris Tech, Inc. v. Paleros Inc., 49 A.D.3d 631, 632, 853 N.Y.S.2d 601 [internal quotation marks omitted];  see Rozenberg v. Perlstein, 200 A.D.3d at 920, 158 N.Y.S.3d 233 ).  Therefore, “[a] party moving for the appointment of a temporary receiver must submit ‘clear and convincing evidence of irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests’ ” (Board of Mgrs. of Nob Hill Condominium Section II v. Board of Mgrs. of Nob Hill Condominium Section I, 100 A.D.3d 673, 673, 954 N.Y.S.2d 145, quoting Natoli v. Milazzo, 65 A.D.3d 1309, 1310, 886 N.Y.S.2d 205;  see Rozenberg v. Perlstein, 200 A.D.3d at 920, 158 N.Y.S.3d 233).  Here, the plaintiffs failed to make such a clear evidentiary showing (see Manning–Kranes v. Manning–Franzman, 175 A.D.3d 1403, 109 N.Y.S.3d 434;  Board of Mgrs. of Nob Hill Condominium Section II v. Board of Mgrs. of Nob Hill Condominium Section I, 100 A.D.3d at 673, 954 N.Y.S.2d 145).  Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was for the appointment of a receiver for the property and E & S Realty Management.

“To establish the right to a preliminary injunction, a movant must demonstrate (1) the likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in the movant's favor” (Benaim v. S2 Corona, LLC, 214 A.D.3d 760, 761, 186 N.Y.S.3d 236;  see CPLR 6301;  Braunstein v. Hodges, 157 A.D.3d 850, 66 N.Y.S.3d 914).  “The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the court hearing the motion” (Benaim v. S2 Corona, LLC, 214 A.D.3d at 761, 186 N.Y.S.3d 236;  see Cong. Machon Chana v. Machon Chana Women's Inst., Inc., 162 A.D.3d 635, 637, 80 N.Y.S.3d 61).  “Absent unusual or compelling circumstances, appellate courts are reluctant to disturb that determination” (Cong. Machon Chana v. Machon Chana Women's Inst., Inc., 162 A.D.3d at 637, 80 N.Y.S.3d 61;  see Cushing v. Sanford Equities Corp., 223 A.D.3d 870, 871, 204 N.Y.S.3d 524).  Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was for a preliminary injunction enjoining the defendants from signing checks or documents on behalf of E & S Realty Management.  The plaintiffs failed to demonstrate irreparable injury absent the preliminary injunction (see Benaim v. S2 Corona, LLC, 214 A.D.3d at 761, 186 N.Y.S.3d 236).

The plaintiffs’ remaining contention is without merit.

GENOVESI, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.