Daniel Berger, Plaintiff, v. Edward Berger, Defendant. (2026)

In this action seeking equitable relief concerning real property, Plaintiff Daniel Berger ("Plaintiff") moves by way of Order to Show Cause pursuant to section 6301 of the Civil Practice Law and Rules ("CPLR") for an order granting a preliminary injunction against Defendant Edward Berger ("Defendant") to (1) stay a pending summary holdover eviction proceeding in Rensselaer City Court; (2) stay the enforcement of any judgment of possession or warrant of eviction issued in said proceeding; (3) enjoin Defendant from interfering with Plaintiff's continued possession of the subject premises; and (4) enjoin Defendant from selling, transferring, conveying, mortgaging, leasing, encumbering, or otherwise altering the ownership status of the subject property in dispute. Defendant opposes the motion and asks the Court to dismiss the action as time barred. Upon reviewing the parties' submissions and after hearing oral argument, the Court denies Defendant's motion to dismiss but nevertheless denies Plaintiff's request for a preliminary injunction.

I. Background and Procedural History

As alleged by Plaintiff in both the papers commencing this action and the application for injunctive relief, Plaintiff and Defendant are brothers. Plaintiff left his home and job in Syracuse, New York in the Fall of 2023, purportedly at the request of Defendant's wife, to live in Rensselaer County with Plaintiff and Defendant's then-ailing mother, Florence Berger ("Ms. Berger" or "mother"). Ms. Berger had jointly owned the condominium she was living in with her husband and Defendant, but she and her husband transferred the property to Defendant in June of 2006. Plaintiff does not dispute Defendant's legal title to the property.

Ms. Berger passed away on October 5, 2025. Defendant thereafter commenced a summary holdover eviction proceeding against Plaintiff in Rensselaer City Court, which is currently adjourned until October 13, 2026.

Plaintiff commenced this action Rensselaer County seeking a declaration of equitable rights to the condominium pursuant to CPLR 3001. The gravamen of the Verified Complaint and supporting papers is that Plaintiff is entitled to an equitable interest in the property because he provided extensive uncompensated caregiving services to Ms. Berger for two years at the request of his sister-in-law and the family, and on the basis of Ms. Berger representing to Plaintiff and others that she wanted Plaintiff to remain in the condominium after her death for, according to Plaintiff, as long as he wants and needs. Plaintiff asks the Court to find that a constructive trust was created in his favor due to his mother's assurances and Defendant's purported unjust enrichment. Plaintiff alternatively pleads causes of action for specific performance, promissory estoppel, equitable estoppel, quantum meruit, and unjust enrichment; and asks the Court to impose an equitable lien. Plaintiff seeks various kinds of damages in addition to an equitable interest in the property. Given the pending eviction proceeding in Rensselaer City Court, Plaintiff filed a proposed Order to Show Cause along with the Summons and Verified Complaint, seeking a temporary restraining order and a preliminary injunction pending the determination of his rights in this action.

Another Justice of this Court signed the Order to Show Cause but declined to grant Plaintiff's request for a temporary restraining order. Defendant filed an attorney affirmation and memorandum of law opposing Plaintiff's request for injunctive relief, asking the Court to find the claim for a constructive trust time barred and arguing that Plaintiff's claims lack merit. Defendant thereafter filed a Verified Answer with affirmative defenses. Plaintiff provided a reply memorandum in support of his motion. This Court heard oral argument on the motion and reserved decision on whether to grant the preliminary injunction, declining to provide the requested relief due to the eviction proceeding having been adjourned until the 13th of October of this year. The motion having been fully submitted and oral argument having been heard, the Court now renders the following decision.

II. The Parties' Arguments

In seeking injunctive relief, Plaintiff proffers affidavits from family members and friends in support of the propositions that he cared for Ms. Berger at great personal sacrifice and that she wanted him to stay in the condominium after her death. Plaintiff claims in his own affidavit that Defendant's wife asked him to relocate to the Capital Region to care for Ms. Berger because she—the sister-in-law—was no longer able to do so and that Ms. Berger "repeatedly assured [Plaintiff] that [he] would be able to continue living in the condominium after her death for as long as [he] needed." Likewise, the other affiants all state they heard Ms. Berger promise Plaintiff the use of the condominium upon her death on several occasions.

In opposition, Defendant produced the deed of the subject property, which demonstrates that the parties' parents transferred the condominium to Defendant back in June of 2006. Defendant avers that he allowed his parents to live in the condominium and paid all fees and property taxes associated therewith so that his parents could live out their final years without having to worry about the financial stresses of owning real property. Defendant's position is that he never promised anything to Plaintiff and asserts that Plaintiff's claim for the imposition of a constructive trust is barred by the statute of limitations. Defendant claims that a constructive trust, in any event, was not created due to Plaintiff's care of Ms. Berger.

Defendant further asserts that Plaintiff is not entitled to equitable relief. In this regard, he claims not to seek back rent from Plaintiff despite allowing the latter to live in the condominium rent free. Moreover, Defendant argues that (1) Plaintiff lacks privity of contract insofar as the claims for specific performance and estoppel are concerned; (2) he was not the recipient or beneficiary of Plaintiff's actions insofar as Plaintiff cared for their mother out of familial duty and did not confer a benefit on Defendant directly; (3) an equitable lien ought not to be imposed on the property because the property was transferred two decades prior and there is no proof the transfer was made for the purpose of securing Plaintiff's services in caring for Ms. Berger; and (4) the balance of the equities militates against granting Plaintiff a preliminary injunction insofar as Defendant, and not Plaintiff, remains responsible for maintaining the property pending the resolution of this matter. Ultimately, Defendant maintains that he has the right to evict Plaintiff.

III. Applicable Law and Analysis

A. Defendant's Motion to Dismiss the Claim for Constructive Trust

As relevant to Defendant's request that the matter be dismissed for lack of timeliness, "[a] cause of action to impose a constructive trust is subject to a six-year statute of limitations and accrues upon the occurrence of the allegedly wrongful act giving rise to a duty of restitution" (Matter of George, 194 AD3d 1290, 1293 [3d Dept 2021] [internal citation quotation marks omitted]; see CPLR 213 [1]). Accepting Plaintiff's claim in support of a constructive trust as legitimate for purposes of assessing the timeliness of the claim, Plaintiff's cause of action accrued well within the six-year period contained in CPLR 213 (1), since the claim arises mainly from Defendant's decision to seek Plaintiff's eviction from the condominium sometime in 2025, months after the death of their mother and seemingly in contravention of her wishes (see generally Matter of Steinberg, 183 AD3d 1067, 1070 [3d Dept 2020]). Based on the foregoing, the Court denies Defendant's motion seeking to dismiss the action as untimely.

B. The Standard for a Preliminary Injunction

To successfully obtain a preliminary injunction under CPLR 6301, the party seeking relief "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction[,] and a balance of equities in its favor" (R. Kelly Freedman Holding Group, LLC v P & M Brick, LLC, 242 AD3d 1402, 1404-1405 [3d Dept 2025], quoting Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see also Darwish Auto Group, LLC v TD Bank, N.A., 224 AD3d 1115, 1116—1117 [3d Dept 2024]). If the party seeking the injunction establishes these elements, any question of fact raised by the opposing party is insufficient, on its own, to deny the motion (see Darwish Auto Group, 224 AD3d at 1117). Rather, "the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists" (id., quoting CPLR 6312 [c]).

While the purpose of granting a preliminary injunction "is to maintain the status quo and not to determine the ultimate rights of the parties" (R. Kelly Freedman Holding Group, 242 AD3d at 1404, quoting Commissioner of the NY State Dept. of Transp. v Polite, 236 AD3d 82, 114 [2d Dept 2024]), such relief is a drastic remedy to be used sparingly, subject to the sound discretion of the trial court and reviewed for abuse of discretion as a matter of law (R. Kelly Freedman Holding Group, 242 AD3d at 1405; Sarker v Das, 203 AD3d 973, 974 [2d Dept 2022]).

C. The Probability of Success on the Merits of all Claims

Turning to the probability of success on the merits, "[a] constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Lu v Gamba, 244 AD3d 1488, 1491 [3d Dept 2025], lv dismissed — NY3d —, 2026 NY Slip Op 76447 [2026], quoting Clark v Locey, 196 AD3d 794, 795 [3d Dept 2021]). To establish a constructive trust, the party seeking its recognition must demonstrate (1) the existence of a confidential or fiduciary relation; (2) a promise, whether express or implied; (3) a transfer made in reliance on that promise; and (4) unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Lu, 244 AD3d at 1491, quoting Morgan v Kilroy, 181 AD3d 1024, 1025 [3d Dept 2020]).

Though courts generally do not rigidly apply these elements (see generally Baker v Harrison, 180 AD3d 1210, 1211 [3d Dept 2020]), the Court nevertheless finds that, based on the evidence provided, Plaintiff fails to show likelihood of success on the merits for the imposition of a constructive trust warranting a preliminary injunction in the interim.

Defendant acquired the property from his parents back in June of 2006, just short of two decades before Ms. Berger's health began to decline significantly, which according to Plaintiff, precipitated his move to Rensselaer County. According to his own affidavit, Plaintiff moved in with Ms. Berger in the Fall of 2023 because Defendant's wife needed help taking care of her and because he understood that Ms. Berger would likely have been placed in a nursing home unless he moved in with her.

The relationships in this case, whether between son and mother or brother and brother, while not dispositive on their own, do satisfy the first element necessary for imposing a constructive trust by raising, at the very least, a factual issue concerning the existence of a confidential relationship (see Enzien v Enzien, 96 AD3d 1136, 1137-1138 [3d Dept 2012]; Matter of Almasy v Ward, 53 AD3d 946, 947 [3d Dept 2008]). However, the representations upon which Plaintiff relies were made by his mother long after she ceased having any interest in the subject property. Plaintiff was aware that Defendant held title to the condominium and that their mother no longer possessed any property interest that she could grant him. Under these circumstances, the evidence offered by Plaintiff constitutes, at most, a mere expectation that he would have been allowed to remain in the condominium upon Ms. Berger's death, rather than an express or implied promise sufficient to support the imposition of a constructive trust on property she no longer had any interest in. Even assuming that Plaintiff's effort and time supports the element of a transfer, the evidence as presented by Plaintiff, particularly in his affidavit, establishes, at most, that Defendant may have derived an indirect benefit from Plaintiff's actions because Defendant's wife was relieved of the responsibility of having to care for Ms. Berger. Thus, the Court finds that Defendant was not unjustly enriched to such a degree as requiring the imposition of a constructive trust on property he acquired nearly twenty years before Plaintiff began providing care for their mother.

Plaintiff's remaining claims also fail to support the imposition of a preliminary injunction, whether for lack of proof of a contract capable of being specifically enforced (see generally Bennett v Bennett, 223 AD3d 1013, 1014-1015 [3d Dept 2024]); the absence of justifiable reliance upon a representation made by Defendant (see generally Andrew R. Mancini Assoc., Inc. v Murphy Excavating Corp., 172 AD3d 1664, 1666 [3d Dept 2019]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1013 [3d Dept 2009]); lack of services rendered specifically for Defendant's benefit, such that Defendant would be unjustly enriched (see Clark v Daby, 300 AD2d 732, 732-733 [3d Dept 2002] [holding that "the mere fact that the plaintiff's activities bestowed a benefit on the defendant is insufficient to establish a cause of action for unjust enrichment"]); or Plaintiff's inability to demonstrate the transfer of the property as security for an obligation to care for their mother (see generally Auquilla v Villa, 240 AD3d 48, 61-62 [2d Dept 2025] [explaining that, in the context of an equitable mortgage, there must be an express or implied agreement demonstrating an intent to make specific property security for an obligation]).

Based on the foregoing, the Court finds that Plaintiff has failed to demonstrate a likelihood of success on the merits of his claims. Accordingly, Plaintiff has not satisfied his burden under CPLR 6301, and his motion for a preliminary injunction is denied.

IV. Conclusion

Based on the foregoing, it is hereby

ORDERED, that Plaintiff's request for a preliminary injunction and other similar relief is DENIED; and it is further

ORDERED, that Defendant's motion for an order dismissing the claim as untimely is DENIED; and it is further

ORDERED, that the parties are to contact the Court via Mendez Chambers email, upon entry of this decision, to schedule an in-person conference to be held at the Rensselaer Supreme and County Courthouse, which is located at 80 Second Street, Troy, New York 12180.

This shall constitute the Decision and Order of the Court. This Decision and Order shall be uploaded onto the New York State Court Electronic Filing ("NYSCEF") system for filing and entry by the Office of the County Clerk. The signing of this Decision and Order and uploading onto NYSCEF shall not constitute filing, entry, service, or notice of entry under CPLR 2220 and section 202.5-b (h) (2) of the Uniform Rules for the New York State Trial Courts. Counsel is not relieved from the applicable provisions of those Rules with respect to filing, entry, service, and notice of entry of the original Decision and Order.

Dated: October 8, 2026

Troy, New York

Hon. Noel Mendez

Acting Justice of the Supreme Court

Papers Considered:

All motions and opposition papers on NYSCEF, along with exhibits.

Noel Mendez, J.