BICH v. BICH (2020)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 were read on this motion for TEMPORARY RESTRAINING ORDER.

This motion arises from an action to enforce a 2008 post-nuptial agreement between plaintiff Veronique Bich and her husband Bruno Bich, about the disposition of marital property between them in the event of a breakdown in their marital relationship. Plaintiff alleges that a breakdown occurred within the meaning of the agreement but that defendant has not complied with his contractual obligations.¹ She has sued for specific performance of the agreement or, in the alternative, money damages.

Plaintiff moves by order to show cause for a preliminary injunction enjoining defendant or anyone acting on his behalf “from taking any steps to sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property ․ individually or jointly held by the parties, or held by an entity (including any trusts) over which he has control, except in the usual course of business.” (NYSCEF No. 9 at 1-2 [emphasis added].) And she seeks a temporary restraining order imposing this relief “pending the hearing and determination” of the motion. (Id. at 2.)

As reflected in the papers to which this order is appended, this court has signed plaintiff's OSC and set a briefing schedule on the motion. The court declines, however, to enter plaintiff's requested TRO, for several reasons.

First, plaintiff's papers submitted in support of the OSC and requested TRO do not provide any facts that might justify the grant of interim relief pending determination of the motion. Although plaintiff alleges that defendant has not only failed to comply with his obligations under the agreement but has also taken steps that could compromise her rights under the agreement, she does not identify any current conduct by defendant that would warrant the grant of interim relief. Indeed, several of the acts by defendant on which plaintiff relies occurred more than a year (or two years) ago. And the most recent such act was taken more than two months ago—prior to the commencement of this action. Nor does plaintiff identify any specific and imminent future conduct by defendant that would justify this court entering a TRO now.

Second, plaintiff has not established that she would suffer “immediate and irreparable injury” absent entry of a TRO, as CPLR 6301 requires. To be sure, plaintiff's complaint seeks specific performance of the parties' 2008 contract, the terms of which provide for allocation of specific items of real property and tangible and intangible personal property. (See Complaint, NYSCEF No. 12 at 12-13.) And plaintiff's motion papers assert that defendant may be taking steps to deprive plaintiff of the particular items of property to which she claims entitlement under the contract. But plaintiff's complaint also seeks, in the alternative, an appropriate award of money damages “to the extent Defendant is unable specifically to comply with the terms of the Agreement.” (NYSCEF No. 12 at 13.) Plaintiff does not allege that absent a TRO defendant is, or will imminently become, unable to satisfy any judgment for money damages that might be entered by this court. She thus cannot demonstrate irreparable injury warranting a TRO.

Third, the TRO plaintiff seeks is overbroad given the terms of the parties' 2008 agreement and the relief sought in plaintiff's complaint. The agreement expressly provides that certain specified categories of real and personal property owned or controlled by defendant are not subject to the agreement's property-allocation provisions (should those allocation provisions be triggered by a breakdown in the parties' marital relationship). Yet the TRO plaintiff requests would affect any property that is individually or jointly held by the parties (or effectively controlled by defendant)—including property to which plaintiff, in entering the 2008 agreement, expressly renounced a claim.² Plaintiff's papers do not explain why this court should grant a TRO restraining property held by defendant that plaintiff concededly could not recover in this action.

This court expresses no opinion at this time on the merits of plaintiff's underlying motion requesting a preliminary injunction. But the court declines to grant the requested temporary restraining order.

FOOTNOTES

1.   Plaintiff has indicated that though she is now living apart from defendant and does not intend to resume living with him, she is not seeking a legal separation or a divorce.

2.   As requested by plaintiff, the TRO would permit defendant to sell, transfer, encumber, or dispose of property only “in the usual course of business.” (NYSCEF No. 9 at 2.) Neither the TRO nor plaintiff's supporting papers precisely define “usual course of business.”

Gerald Lebovits, J.