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Shammah v. Shammah

December 2, 2008

RICHARD SHAMMAH, PLAINTIFF,
v.
BARBARA SHAMMAH, DEFENDANT.



The opinion of the court was delivered by: Vito M. Destefano, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The plaintiff, represented by counsel, moves for an order "appointing and authorizing the Plaintiff to sell the real property owned by the parties at 953 N. 6th Street, New Hyde Park, New York and to execute any and all documents necessary to effectuate said sale". Simultaneously filed with the motion was a summons and complaint in which the plaintiff asserted three causes of action alleging the following: that the defendant breached a separation agreement entered into in October 2007*fn1 "by failing to cooperate with the real estate brokers, by failing to maintain the property in a clean and neat condition, and by refusing to execute a contract of sale with a bona fide purchaser", and asking the court to "appoint him to sell the parties' residence and to execute any and all documents necessary to effectuate the sale" (Complaint: Exhibit "D" to Plaintiff's Motion at ¶s 6 & 7); that by reason of the breach of contract, plaintiff incurred "additional and unnecessary expenses", and asking the court to award $20,000 in damages (Exhibit "D" at ¶ 11); that he is entitled to counsel fees as a result of the defendant's actions (Exhibit "D" at ¶ 14).*fn2

In support of his motion, the plaintiff avers that after the parties entered into the separation agreement, and agreed to put the "house * * * on the market * * * to be sold as soon as possible", the "[d]efendant has done everything within her power to prevent and thwart the sale of the property", refusing to cooperate with real estate brokers, acquiring dogs and allowing "them the run of the house", and keeping the property in disarray (Affidavit of Plaintiff in Support of Motion at ¶s 3 - 9). The plaintiff further asserts that he can no longer afford to "carry the house" and that he has a bona fide offer in the amount of $375,000 (Affidavit of Plaintiff at ¶s 10 - 13). According to the plaintiff, if the court does not authorize the sale of the property, "the only asset [he has] shall be irretrievably lost" (Affidavit of Plaintiff at ¶ 19).

Exhibit "B' to the plaintiff's motion, which is also referenced by the defendant, is an August 18, 2008 letter from his then-attorney Gail Berkowitz, to the defendant's then-attorney Patricia Manzo, in which she complains that the defendant failed to give access to real estate brokers, kept the house in disrepair and filth, and allowed her dogs to dig up the yard, and urinate and defecate in the house. The letter notes that the house was on the market for one-and-a-half years "with no buyers in sight" and asked that the defendant to agree to reduce the sale price to $449,000. Further, according to Ms. Berkowitz, the plaintiff "agree[d] to reduce the price $5,000 per month until the home is sold. Your client has refused * * *."

In opposition to the motion, the defendant, pro se, indicates that she is willing to sell the house, however, she had "certain concerns" regarding: the balance of the mortgage and equity in the house at present; who bore responsibility for repayment of any loans required to pay for mortgage, equity, and property taxes; whether there was proof that the plaintiff paid the mortgage after the separation agreement was signed; her desire not to give up loss of inheritance or pension rights; the fact that mortgage payments were three months in arrears. As an "Exhibit" to her motion, defendant asserts that she "agreed to $449,000 [as a sale price for the house]", but not to reducing the price by $5,000 per month and not to the amount which has been offered to buy the house ($375,000). No defects were raised by the plaintiff with respect to the defendant's affidavit.

On October 31, 2008, this court placed the matter on its calendar for a conference to aid in disposition of the motion. The parties appeared on November 6, 2008 and reiterated the allegations and positions stated in their papers. The parties did not reach a settlement at the conference, necessitating the within decision and order.

The court notes that the plaintiff's motion fails to articulate the precise nature of the relief requested or the statutory or case law authority for granting any relief. The court finds it necessary to remind plaintiff's counsel that attorneys are always under an ethical obligation to cite applicable law to the court (Code of Professional Responsibility EC 7-23). An attorney's failure to cite such authority is an abdication of responsibility, undermining the adversarial process and burdening the court unnecessarily.

Regarding the motion, it does not appear that plaintiff is seeking injunctive relief under Article 63 of the CPLR. That statute permits the court to grant an injunction "where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff." (see CPLR 6301). As such, the statute appears to be inapplicable here, notwithstanding that in presenting this motion to the court, plaintiff's counsel suggested its applicability.

Rather, the relief requested in the motion appears to be in the nature of a temporary receivership to sell the marital residence for a specific amount (CPLR 6401, et seq.).*fn3 Under CPLR 6401, the court "[u]pon motion of a person having an apparent interest in property which is the subject of an action in the supreme * * * court, [may appoint] a temporary receiver * * * prior to judgment * * * where there is danger that the property will be removed from the state, or lost, materially injured or destroyed. * * * The court appointing a receiver may authorize him to take and hold real * * * property, and sue for, collect and sell debts or claims, upon such conditions and for such purposes as the court shall direct" (CPLR 6401 [a], [b]).

Howsoever the relief sought in the plaintiff's motion is characterized, it must be denied for the reasons that follow.

The parties' separation agreement states the following, in relevant part (Separation Agreement: Exhibit "A" to Plaintiff's Motion at p.7) (emphasis in original):

ARTICLE IV

MARITAL ...


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