TARNAVSKAYA v. TARNAVSKY (2021)

Upon the following e-filed documents, listed by NYSCEF as item numbers 13 through and including -34, and after oral argument of the parties CONDUCTED on September 30, 2021, the motion is denied for the reasons set forth below:

On April 29, 2021, the plaintiff, proceeding pro se, commenced the instant action by electronically filing a summons with notice (hereinafter the commencement papers) with the Kings County Clerk's Office through the NYSCEF system. On May 19, 2021, plaintiff filed an affidavit of service of the commencement papers reflecting personal delivery of same on the defendant on April 30, 2021.

Thereafter, on July 21, 2021, plaintiff filed the instant amended order to show cause seeking an order granting her replevin of her dogs ¹ and enjoining the defendant, her son, to return her dogs to her.

On September 30, 2021, the defendant filed an affidavit in opposition to the order to show cause. The affidavit was twenty-one pages, averred one hundred and nine allegations of fact and included nineteen exhibits labeled A through and including S.

LAW AND APPLICATION

The plaintiff commenced the instant action pursuant to CPLR 305(b) by filing and thereafter serving a summons with notice upon the defendant. The defendant did not serve a demand for a complaint. The defendant electronically filed papers in opposition to the instant order to show cause.

To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (Emanuel Mizrahi, DDS, P.C. v Angela Andretta, DMD, P.C, 170 AD3d 1120, 1123 [2nd Dept 2019]; Zoller v HSBC Mtge. Corp. [USA], 135 AD3d 932, 933 [2nd Dept 2016]).

Here, the plaintiff has not demonstrated a likelihood of success on the merits. The plaintiff has not served a complaint although more than twenty days have passed since the defendant has appeared and filed opposition papers to the motion. The instant action is, therefore, subject to dismissal by motion pursuant to CPLR 3012[b]. The lack of a complaint also necessarily means that the factual and legal substance of the plaintiff's claim for replevin are not articulated. The allegations contained within the order to show cause do not help in this regard.

The plaintiff seeks a mandatory injunction directing the defendant to return her dogs. It is settled that absent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment (SHS Baisley, LLC v. Res Land, Inc., 18 AD3d 727, 728 [2nd Dept 2005], citing St. Paul Fire and Mar. Ins. Co. v. York Claims Serv., 308 AD2d 347, 348—349 [1st Dept 2003]). In addition, mandatory preliminary injunctions are not favored and should not be granted absent extraordinary or unique circumstances, or where the final judgment may otherwise fail to afford complete relief, especially if the status quo would be disturbed (id). The motion papers do not demonstrate such an extraordinary or unique circumstances.

CONCLUSION

Plaintiff's order to show cause seeking an order granting replevin and enjoining the defendant to return her dogs is denied without prejudice.

The foregoing constitutes the decision and order of this Court.

FOOTNOTES

1.   Plaintiff gave the name of the subject dogs as Dubi, Bella and five puppies.

Francois A. Rivera, J.