Preview
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------X
DONNA DRAKES, Index No. 502587/2018
Plaintiff, MEMORANDUM IN
OPPOSITON TO THE
- against - SUBMISSION OF
PLAINTIFF’S ORDER
JAMAL WILLIAMS JJPB 370 LEWIS, LLC, TO SHOW CAUSE
WITH INJUNCTIVE
Defendant. RELIEF
------------------------------------------------------------------X
I, RICHARD E. GRESIO, ESQ., an attorney duly authorized to practice law in the State
of New York and the principal of The Law Office of Richard Gresio hereby affirms the following
under penalties of perjury:
1. I am the attorney for the Objectant Jude Bernard (“Bernard”) and Defendant
JJPB 370 Lewis LLC (“JJPB” and collectively “Defendants” or “Objectants”) and submit the
within objection to the Show Cause to be submitted by Plaintiff on September 22, 2023. More
specifically, Defendants objects to Plaintiff’s fifth identical application demanding this Court issue
a stay on the three unrelate hold over eviction proceedings brought by JJPB in City Civil Court,
Kings County against Lewis Avenue Fine Foods d/b/a Beso Restaurant under index number CV-
LT 316048/22 and those against the residential tenants under index numbers LT-314979-22 and
LT-314980-221.
2. In support of her fifth application for this relief, Plaintiff fatally relies on
the same April 24, 2022 affidavit she submitted in support of the four previously failed identical
1
Plaintiff’s 202.7 notice fails to serve process of 202.7 on counsel for the defendants in the Civil Court landlord tenant
matters. Moreover, Plaintiff serves 202.7 notice at the eve of midnight on September 20th for an order staying civil
proceedings one business day before they appear on the court’s calendar.
1 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
applications. The Appellate Court, Second Department too has concurred with this court denying
Plaintiff’s CPLR 5704 application (Exhibit “1”). As before, this tired affidavit fails to demonstrate
Plaintiff meets the high threshold for an injunction and will (1) likely succeed on the merits and
(2) would suffer irreparable harm absent injunctive relief and (3) the balancing of the equities are
in her favor. To wit, the doctrines of res judicata and collateral estopple preclude this application
and it should be denied as it was each of the five previous times.
3. Moreover, has time elapses, the weighing of the equities more heavily in
favor of Defendant. Defendant, a bona fide purchaser whom was dragged into this litigation
continues to suffer financial harm to the benefit of Plaintiff. Plaintiff operates her business without
paying rent, taxes, water, gas, or a mortgage while stealing Defendant’s rent from the two
remaining residential units. Plaintiff causes waste (Exhibit “2”) which has allowed garbage
violations, caused vermin to infest the building (Exhibit “3”), refuses access for boiler inspections
(Exhibit “4”), and has caused hazards with open gas and electrical permits (See title report as
NYSCEF No. 176 listing all the open permits). Plaintiff has affirmed she has paid the
building expenses but years later has not annexed a single expense paid since Defendant
has acquired title because no such payment of expenses exist. Defendant has paid all of
the expenses, as the rightful owner, since the date of purchase including his rapidly
expiring mortgage. To add insult to injury Defendant has incurred tens of thousands of
dollars in legal fees fighting each frivolous application.
2
2 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
BRIEF HISTORY
4. Your affirmant will keep the repetition in objection to a minimum, however,
as this is the six times Plaintiff requests this injunctive relief relying on the same regurgitated fact
pattern affirmed in the same April 24, 2022 affidavit, repetition is impossible to avoid.
5. Plaintiff commenced the within action against Defendant, Jamal Williams
in 2018 to enforce an admitted unrecorded “handshake agreement” regarding the property known
as 370 Lewis Avenue, Brooklyn, New York and Plaintiff’s alleged ownership rights (Drake’s
Affidavit in support at 24.). Therein, Plaintiff’s cause of action and the underlying “handshake
agreement” pivots on her own admission they acted in concert to participate in a classic and highly
illegal “straw buyer” scheme securing funds to purchase the property through money laundering
and bank fraud.
6. Each of Plaintiff’s filed documents lay out the elements of this criminal
fraud in explicit detail with each subsequent affidavit expanding on the last admitting her call for
relief is to enforce a contract founded in her own felonious behavior. Footnoted herein are
Plaintiff’s own admitted facts of her felonious behavior which have been previously presented to
this court2.
2 In Plaintiff’s Verified Complaint p. 5.-10. NYSCEF doc. 1., she pleads she is in possession of the property ( Complaint at
5. And 10.) and placed Defendant’s name on the property “only as a straw buyer” ( Id. at 6.), she continues in affirming
the parties intent was to deed the property into Plaintiff’s name (Id. at p.7). She reiterates and expands on this fraud
scheme in her Affidavit in Support dated March 1, 2018 NYSCEF doc. 11. Therein she affirms “I sought to purchase the
subject property from its prior owner Rene Swift” (Plaintiff’s Affidavit in Support dated March 1, 2018 at 3.). “However,
for financial reasons, it was not prudent at that point for me to put my own name and on the Deed and Mortgage” (Id.
at 4.). “as a result I used Defendant Jamal Williams, as a straw buyer for the property whose name I put on the Deed
and Mortgage” (Id. at 5.). “ She reiterated these facts once again in her Affidavit in Opposition of May 28, 2018 at 6 NYSCEF
doc. 49. where she clarifies she “soon found out that, due to some poor credit (she) had at the time she was not going
to be able to obtain the necessary financing if the purchase was going to occur in (her) own name” See also Id. at 7. where
she affirms “Defendant agreed to take title to the property in his own name…”.
3
3 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
7. At some point, Plaintiff ceased enforcement of her action against Defendant
Jamel Williams causing the Court to mark the matter dismissed as abandoned3. Bernard
subsequently purchased the property from Defendant Williams in an arms-length transaction with
no knowledge of any dispute4. Only after closing when JJPB placed the tenants on notice of the
change in ownership did Plaintiff, an opportunist, submit an order she mimics herein to detriment
of Objectants5. This identical relief has been requested and denied four times by this court under
the same April 24, 2022 affidavit in support presents herein and by the Appellate Court as follows:
To complete the loop on this fraudulent scheme Plaintiff laundered money into William’s account to fabricate funds
and falsify the loan application to coerce the bank to approve a loan Plaintiff and Defendant would otherwise not be
approved. Defendant affirmed he was using the property as his primary residence in his loan application when he was
not an occupant at all (See loan application as NYSCEF doc. 50). Despite the fact the application disclosed false statements
are in violation of Title 18 USC §1001 directly above the signature line, Defendant Williams at the direction of Drakes
executed the loan application (Id.).
Plaintiff’s recent affidavit in support of the previously submitted order to show cause and annexed to Plaintiff’s current
order to show case continues to reiterate the foregoing elements while once again affirming the details of actions
facilitating the fraud. The affidavit before your honor affirms, in detail, wire transfers to complete a money laundering
scheme to funnel Plaintiff’s cash into Defendant’s bank account to misrepresent to the bank Defendant maintained
sufficient assets for the bank to approve this fraudulently obtained loan (Drakes Affidavit of Plaintiff at 26. through 28.).
In U.S. Bank N.A. Price, 2018 NY S. Ct. Motions LEXIS 28351 at 11 (Sup. Queens 2018) the court reviewed an identical
fact pattern during a foreclosure and held:
“The Complaint artfully describes a scheme whereby through fraud and deceit the Defendants
McNeil and Price obtained a mortgage from the Plaintiff. Indeed, the complaint and the Affidavits
submitted allege McNeil should be the sole owner of the underlying property so that any loans and
transactions can circumvent the bad credit of McNeil. This is what the banking industry calls a “straw
buyer” and can be considered an explicit form of fraud.”(emphasis added)
Plaintiff’s entire action hinges on this precise type of fraud yet she brazenly affirms each and every element in explicit
detail expanding upon it in every submission to the Court.
Not surprising, the loan went into foreclosure. This precisely follows the scams that caused the sub-prime loan crash
in 2010.
3
Plaintiff’s fraud aside, her prosecution is wrought with fatal errors. Plaintiff filed a lis pendence against the wrong
property, she failed to stay the transfer of the funds Defendant paid for the property, she failed to secure the
property in her name as a “joint tenant”, and now she takes a sixth bite of the apple requesting a stay using an
affidavit that has failed every time prior.
4
Should the court wish to revisit Defendant’s affirmation of the facts, same may be found as NYSCEF No.206.
5As this action was abandoned, there was no actual or constructive notice of the dispute between Ms. Drakes and
Mr. Williams. Neither party advised Mr. Bernard of the pending action and by Plaintiff’s own admission there was
conversation only between Plaintiff and Jamel Williams through counsel (Drake’s Affidavit at 6-7). The matter was
disposed of with no active lis pendence so it failed to appear on a title search or any other similar notice to Defendant.
The entire title report is at NYSCEF No. 176.
4
4 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
• Plaintiff’s first OSC against Defendant had been submitted on April 27, 2022
(NYSCEF no.160) and signed by Hon. Jsc. Karen Rothenberg on April 29, 2022
NYSCEF no.184). This was supported by the same April 24, 2022 affidavit of
Plaintiff submitted herein. The order to show cause was denied and the stay lifted
with the decision and order of Jsc. Rothenberg dated April 20, 2023 NYSCEF
no.300). This order was noticed and entered on April 27, 2023 without notice of
appeal NYSCEF no.303).
• After submission of the order to show cause but before that order was decided,
Plaintiff submitted a second order to show cause on October 3, 2022 (NYSCEF
no. 256) with an identical relief requested herein relying on the same April 24,
2022 affidavit of Plaintiff. On October 7, 2022 Judge Rothenberg declined sign
the order to show cause, much less grant a stay, noting Plaintiff’s failure to
comply with 202.7(f) and 202.8-e (NYSCEF no.287).
• Plaintiff requested this same relief a third time supported again by the April 24,
2022 affidavit of Plaintiff submitted herein. Judge Rothenberg denied the order
to show cause in its entirety (including the stay of the landlord and tenant
proceedings) on October 7, 2022 holding “the same relief has been requested in
M.S.9 and is presently sdubjdice” (NYSCEF no.290). This was the denied order
to show cause filed as NYSEF No. 184.
5
5 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
• This decision was brought to the Appellate Court under CPLR 5704 and denied
(See Appellate Division Second Department denial as Exhibit “1”).
• The four denials of the within relief fall in line with the order of Hon. Jsc. Lara
J. Genovesi of August 17, 2023 (NYSCEF No.118) deciding the very issue and
held: “Plaintiff’s order to show cause for a stay and to restrain Defendant from
proceeding in the landlord tenant action is denied. Plaintiff is not a party to that
action”. (id.). This decision rings true now as it has then.
How many times is this court going to entertain this absurd, sanctionable, and frivolous behavior?
This issue has been brought before this Court and denied five times, four relying on the same
affidavit with the same facts that were previously insufficient. If the Court erred, the proper relief
is found in the Appellate Court or in a motion to reargue, but not request the same relief relying
on same facts and affidavit that were previously found to be insufficient. If the proverbial a third
time is the charm, the sixth time is sanctionable.
THE RELIEF REQUESTED HEREIN HAS BEEN DENIED FOUR TIMES BY THIS
COURT AND AFFIRMED ON APPEAL INVOKING THE DOCTRINES OF RES
JUDICATA AND COLLATERAL ESTOPPEL
8. This court made a firm determination in 2017 when Hon. Jsc. Lara J.
Genovesi held: “Plaintiff’s order to show cause for a stay and to restrain Defendant from
proceeding in the landlord tenant action is denied. Plaintiff is not a party to that action”.
(NYSCEF no.118). Since then Plaintiff and her counsel, Mr. Duru, has unsuccessfully brought the
same application before the court five additional times relying on the same facts using the same
affidavit.
6
6 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
9. As the Supreme and Appellate Courts have decided the precise issue five
separate times collateral estoppel applies as it prevents "'a party from relitigating in a subsequent
action or proceeding an issue clearly raised in a prior action or proceeding and decided against that
party. . .whether or not the. . .causes of action are the same'". See Simmons v. Trans Express Inc.,
37 N.Y.3d 107 (N.Y. 2021) and citing Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 690
N.Y.S.2d 478, 712 N.E.2d 647 (N.Y. 1999) but clarifying the distinction between collateral
estopple and res judicata.
10. Recently, this court has acknowledged it has limited to no jurisdiction
staying landlord and tenant proceedings as the Civil Court and Appellate Term are the appropriate
venues holding “staying landlord tenant proceedings is extraordinary relief not to be granted
lightly”. See Edery v. Edery, 79 Misc.3d 1215(A), 2023 Slip.Op. 50624(U) (Kings 2023).
11. This now sixth application for a stay is supported by Plaintiff’s same
regurgitated facts. In fact, Plaintiff’s submits the same April 26, 2022 affidavit of the facts the
prior orders to show cause were denied. Plaintiff lacks the respect or courtesy of the Court,
Counsel, or other parties to correct the exhibits and letters to conform with counsel’s affirmation
and memorandum. Exhibits “F-I” were not even filed or addressed in counsel’s recent affirmation
or memorandum of law.
7
7 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
PLAINTIFF AFFIRMS IRREPARABLE HARM THAT WAS PREVIOUSLY DEEMED
INSUFFICIENT AND THE WEIGHING OF THE EQUITIES FALLS SQUARELY IN
FAVOR OF OBJECTANTS
12. Pursuant to CPLR 6301, Plaintiff must establish she will (1) likely succeed
on the merits6 and (2) would suffer irreparable harm absent injunctive relief and (3) the balancing
of the equities are in her favor7. Plaintiff fails to meet this burden.
13. It is well established a preliminary injunction is appropriate upon showing
a probability of success on the merits, danger of irreparable harm absent an injunction, and a
balancing of the equities in his or her favor. See Doe v. Axelrod, 73 N.Y.2d 748, 532 N.E.2d 1272,
536 N.Y.S.2d 44 (N.Y. 1988). In deciding a preliminary injunction, “it is not for the courts to
determine finally the merits of an action upon a motion for preliminary injunction; rather the
purpose of the interlocutory relief is to preserve the status quo until a decision is reached on the
merits”. See Gambar Enterprises v. Kelly Services, 69 A.D.2d 297, 418 N.Y.S.2d 818 (App. Div.
4th 1979). Therefore, a preliminary injunction may also be granted where injunctive relief is
deemed necessary to maintain the status quo, even if movant’s success on the merits cannot be
determined on the merits at that time the application for preliminary injunction is brought. See Mr.
Natural v. Unadulterated Food Products, Inc., 152 A.D.2d 729, 544 N.Y.S.2d 182 (App. Div. 2nd
1989).
14. Plaintiff arrives at this court using the same affidavit of April 26, 2022 to
she had used every time this relief was denied. The facts presented to show irreparable harm, and
a likelihood of success, and a balancing of the equities are as insufficient now as they were then.
6 Moreover, Plaintiff’s underlying action against Defendant is founded on an illegal “handshake agreement” rooted
in felonies and fraud. She has little likelihood of success therein much less against the non-party Objectants, whom
Plaintiff has not obtained jurisdiction.
7
Plaintiff’s affirmed “irreparable harm” has already been found insufficient in the prior applications.
8
8 of 9
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018
NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023
Defendant maintains, at its sole cost and expense, the building including taxes, insurance, utilities,
mortgage, and fines imposed by Plaintiff resulting in irreparable financial harm each day.
15. Plaintiff’s motives for the within application are founded in financial greed.
Beso has the pleasure of operating rent free and stealing rent from the remaining tenants at
Defendants’ expense.
Dated: September 22, 2023
Woodbury, New York
THE LAW OFFICE OF RICHARD GRESIO
/s/ Richard Gresio
By:________________________________
Richard Gresio
Attorneys for Objectants, Jude Bernard
and JJPB 370 Lewis, LLC
7600 Jericho Turnpike, Suite 304
Woodbury, New York 11797
(516) 439-5566
TO: DURU ASSOCIATES, PLLC
123-60 83rd Avenue, Suite 1T
Kew Gardens, New York 11415
JASON J. REBHUN, ESQ.
225 Broadway, Floor 38
New York, New York 10007
SHERWOOD & TRUITT LAW GROUP, LLC
Attorneys for Non-Party/Proposed Intervenor
JJPB 370 Lewis LLC
300 Garden City Plaza, Suite 136
Garden City, New York 11530
9
9 of 9
Preview
FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X DONNA DRAKES, Index No. 502587/2018 Plaintiff, MEMORANDUM IN OPPOSITON TO THE - against - SUBMISSION OF PLAINTIFF’S ORDER JAMAL WILLIAMS JJPB 370 LEWIS, LLC, TO SHOW CAUSE WITH INJUNCTIVE Defendant. RELIEF ------------------------------------------------------------------X I, RICHARD E. GRESIO, ESQ., an attorney duly authorized to practice law in the State of New York and the principal of The Law Office of Richard Gresio hereby affirms the following under penalties of perjury: 1. I am the attorney for the Objectant Jude Bernard (“Bernard”) and Defendant JJPB 370 Lewis LLC (“JJPB” and collectively “Defendants” or “Objectants”) and submit the within objection to the Show Cause to be submitted by Plaintiff on September 22, 2023. More specifically, Defendants objects to Plaintiff’s fifth identical application demanding this Court issue a stay on the three unrelate hold over eviction proceedings brought by JJPB in City Civil Court, Kings County against Lewis Avenue Fine Foods d/b/a Beso Restaurant under index number CV- LT 316048/22 and those against the residential tenants under index numbers LT-314979-22 and LT-314980-221. 2. In support of her fifth application for this relief, Plaintiff fatally relies on the same April 24, 2022 affidavit she submitted in support of the four previously failed identical 1 Plaintiff’s 202.7 notice fails to serve process of 202.7 on counsel for the defendants in the Civil Court landlord tenant matters. Moreover, Plaintiff serves 202.7 notice at the eve of midnight on September 20th for an order staying civil proceedings one business day before they appear on the court’s calendar. 1 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 applications. The Appellate Court, Second Department too has concurred with this court denying Plaintiff’s CPLR 5704 application (Exhibit “1”). As before, this tired affidavit fails to demonstrate Plaintiff meets the high threshold for an injunction and will (1) likely succeed on the merits and (2) would suffer irreparable harm absent injunctive relief and (3) the balancing of the equities are in her favor. To wit, the doctrines of res judicata and collateral estopple preclude this application and it should be denied as it was each of the five previous times. 3. Moreover, has time elapses, the weighing of the equities more heavily in favor of Defendant. Defendant, a bona fide purchaser whom was dragged into this litigation continues to suffer financial harm to the benefit of Plaintiff. Plaintiff operates her business without paying rent, taxes, water, gas, or a mortgage while stealing Defendant’s rent from the two remaining residential units. Plaintiff causes waste (Exhibit “2”) which has allowed garbage violations, caused vermin to infest the building (Exhibit “3”), refuses access for boiler inspections (Exhibit “4”), and has caused hazards with open gas and electrical permits (See title report as NYSCEF No. 176 listing all the open permits). Plaintiff has affirmed she has paid the building expenses but years later has not annexed a single expense paid since Defendant has acquired title because no such payment of expenses exist. Defendant has paid all of the expenses, as the rightful owner, since the date of purchase including his rapidly expiring mortgage. To add insult to injury Defendant has incurred tens of thousands of dollars in legal fees fighting each frivolous application. 2 2 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 BRIEF HISTORY 4. Your affirmant will keep the repetition in objection to a minimum, however, as this is the six times Plaintiff requests this injunctive relief relying on the same regurgitated fact pattern affirmed in the same April 24, 2022 affidavit, repetition is impossible to avoid. 5. Plaintiff commenced the within action against Defendant, Jamal Williams in 2018 to enforce an admitted unrecorded “handshake agreement” regarding the property known as 370 Lewis Avenue, Brooklyn, New York and Plaintiff’s alleged ownership rights (Drake’s Affidavit in support at 24.). Therein, Plaintiff’s cause of action and the underlying “handshake agreement” pivots on her own admission they acted in concert to participate in a classic and highly illegal “straw buyer” scheme securing funds to purchase the property through money laundering and bank fraud. 6. Each of Plaintiff’s filed documents lay out the elements of this criminal fraud in explicit detail with each subsequent affidavit expanding on the last admitting her call for relief is to enforce a contract founded in her own felonious behavior. Footnoted herein are Plaintiff’s own admitted facts of her felonious behavior which have been previously presented to this court2. 2 In Plaintiff’s Verified Complaint p. 5.-10. NYSCEF doc. 1., she pleads she is in possession of the property ( Complaint at 5. And 10.) and placed Defendant’s name on the property “only as a straw buyer” ( Id. at 6.), she continues in affirming the parties intent was to deed the property into Plaintiff’s name (Id. at p.7). She reiterates and expands on this fraud scheme in her Affidavit in Support dated March 1, 2018 NYSCEF doc. 11. Therein she affirms “I sought to purchase the subject property from its prior owner Rene Swift” (Plaintiff’s Affidavit in Support dated March 1, 2018 at 3.). “However, for financial reasons, it was not prudent at that point for me to put my own name and on the Deed and Mortgage” (Id. at 4.). “as a result I used Defendant Jamal Williams, as a straw buyer for the property whose name I put on the Deed and Mortgage” (Id. at 5.). “ She reiterated these facts once again in her Affidavit in Opposition of May 28, 2018 at 6 NYSCEF doc. 49. where she clarifies she “soon found out that, due to some poor credit (she) had at the time she was not going to be able to obtain the necessary financing if the purchase was going to occur in (her) own name” See also Id. at 7. where she affirms “Defendant agreed to take title to the property in his own name…”. 3 3 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 7. At some point, Plaintiff ceased enforcement of her action against Defendant Jamel Williams causing the Court to mark the matter dismissed as abandoned3. Bernard subsequently purchased the property from Defendant Williams in an arms-length transaction with no knowledge of any dispute4. Only after closing when JJPB placed the tenants on notice of the change in ownership did Plaintiff, an opportunist, submit an order she mimics herein to detriment of Objectants5. This identical relief has been requested and denied four times by this court under the same April 24, 2022 affidavit in support presents herein and by the Appellate Court as follows: To complete the loop on this fraudulent scheme Plaintiff laundered money into William’s account to fabricate funds and falsify the loan application to coerce the bank to approve a loan Plaintiff and Defendant would otherwise not be approved. Defendant affirmed he was using the property as his primary residence in his loan application when he was not an occupant at all (See loan application as NYSCEF doc. 50). Despite the fact the application disclosed false statements are in violation of Title 18 USC §1001 directly above the signature line, Defendant Williams at the direction of Drakes executed the loan application (Id.). Plaintiff’s recent affidavit in support of the previously submitted order to show cause and annexed to Plaintiff’s current order to show case continues to reiterate the foregoing elements while once again affirming the details of actions facilitating the fraud. The affidavit before your honor affirms, in detail, wire transfers to complete a money laundering scheme to funnel Plaintiff’s cash into Defendant’s bank account to misrepresent to the bank Defendant maintained sufficient assets for the bank to approve this fraudulently obtained loan (Drakes Affidavit of Plaintiff at 26. through 28.). In U.S. Bank N.A. Price, 2018 NY S. Ct. Motions LEXIS 28351 at 11 (Sup. Queens 2018) the court reviewed an identical fact pattern during a foreclosure and held: “The Complaint artfully describes a scheme whereby through fraud and deceit the Defendants McNeil and Price obtained a mortgage from the Plaintiff. Indeed, the complaint and the Affidavits submitted allege McNeil should be the sole owner of the underlying property so that any loans and transactions can circumvent the bad credit of McNeil. This is what the banking industry calls a “straw buyer” and can be considered an explicit form of fraud.”(emphasis added) Plaintiff’s entire action hinges on this precise type of fraud yet she brazenly affirms each and every element in explicit detail expanding upon it in every submission to the Court. Not surprising, the loan went into foreclosure. This precisely follows the scams that caused the sub-prime loan crash in 2010. 3 Plaintiff’s fraud aside, her prosecution is wrought with fatal errors. Plaintiff filed a lis pendence against the wrong property, she failed to stay the transfer of the funds Defendant paid for the property, she failed to secure the property in her name as a “joint tenant”, and now she takes a sixth bite of the apple requesting a stay using an affidavit that has failed every time prior. 4 Should the court wish to revisit Defendant’s affirmation of the facts, same may be found as NYSCEF No.206. 5As this action was abandoned, there was no actual or constructive notice of the dispute between Ms. Drakes and Mr. Williams. Neither party advised Mr. Bernard of the pending action and by Plaintiff’s own admission there was conversation only between Plaintiff and Jamel Williams through counsel (Drake’s Affidavit at 6-7). The matter was disposed of with no active lis pendence so it failed to appear on a title search or any other similar notice to Defendant. The entire title report is at NYSCEF No. 176. 4 4 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 • Plaintiff’s first OSC against Defendant had been submitted on April 27, 2022 (NYSCEF no.160) and signed by Hon. Jsc. Karen Rothenberg on April 29, 2022 NYSCEF no.184). This was supported by the same April 24, 2022 affidavit of Plaintiff submitted herein. The order to show cause was denied and the stay lifted with the decision and order of Jsc. Rothenberg dated April 20, 2023 NYSCEF no.300). This order was noticed and entered on April 27, 2023 without notice of appeal NYSCEF no.303). • After submission of the order to show cause but before that order was decided, Plaintiff submitted a second order to show cause on October 3, 2022 (NYSCEF no. 256) with an identical relief requested herein relying on the same April 24, 2022 affidavit of Plaintiff. On October 7, 2022 Judge Rothenberg declined sign the order to show cause, much less grant a stay, noting Plaintiff’s failure to comply with 202.7(f) and 202.8-e (NYSCEF no.287). • Plaintiff requested this same relief a third time supported again by the April 24, 2022 affidavit of Plaintiff submitted herein. Judge Rothenberg denied the order to show cause in its entirety (including the stay of the landlord and tenant proceedings) on October 7, 2022 holding “the same relief has been requested in M.S.9 and is presently sdubjdice” (NYSCEF no.290). This was the denied order to show cause filed as NYSEF No. 184. 5 5 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 • This decision was brought to the Appellate Court under CPLR 5704 and denied (See Appellate Division Second Department denial as Exhibit “1”). • The four denials of the within relief fall in line with the order of Hon. Jsc. Lara J. Genovesi of August 17, 2023 (NYSCEF No.118) deciding the very issue and held: “Plaintiff’s order to show cause for a stay and to restrain Defendant from proceeding in the landlord tenant action is denied. Plaintiff is not a party to that action”. (id.). This decision rings true now as it has then. How many times is this court going to entertain this absurd, sanctionable, and frivolous behavior? This issue has been brought before this Court and denied five times, four relying on the same affidavit with the same facts that were previously insufficient. If the Court erred, the proper relief is found in the Appellate Court or in a motion to reargue, but not request the same relief relying on same facts and affidavit that were previously found to be insufficient. If the proverbial a third time is the charm, the sixth time is sanctionable. THE RELIEF REQUESTED HEREIN HAS BEEN DENIED FOUR TIMES BY THIS COURT AND AFFIRMED ON APPEAL INVOKING THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL 8. This court made a firm determination in 2017 when Hon. Jsc. Lara J. Genovesi held: “Plaintiff’s order to show cause for a stay and to restrain Defendant from proceeding in the landlord tenant action is denied. Plaintiff is not a party to that action”. (NYSCEF no.118). Since then Plaintiff and her counsel, Mr. Duru, has unsuccessfully brought the same application before the court five additional times relying on the same facts using the same affidavit. 6 6 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 9. As the Supreme and Appellate Courts have decided the precise issue five separate times collateral estoppel applies as it prevents "'a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party. . .whether or not the. . .causes of action are the same'". See Simmons v. Trans Express Inc., 37 N.Y.3d 107 (N.Y. 2021) and citing Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 690 N.Y.S.2d 478, 712 N.E.2d 647 (N.Y. 1999) but clarifying the distinction between collateral estopple and res judicata. 10. Recently, this court has acknowledged it has limited to no jurisdiction staying landlord and tenant proceedings as the Civil Court and Appellate Term are the appropriate venues holding “staying landlord tenant proceedings is extraordinary relief not to be granted lightly”. See Edery v. Edery, 79 Misc.3d 1215(A), 2023 Slip.Op. 50624(U) (Kings 2023). 11. This now sixth application for a stay is supported by Plaintiff’s same regurgitated facts. In fact, Plaintiff’s submits the same April 26, 2022 affidavit of the facts the prior orders to show cause were denied. Plaintiff lacks the respect or courtesy of the Court, Counsel, or other parties to correct the exhibits and letters to conform with counsel’s affirmation and memorandum. Exhibits “F-I” were not even filed or addressed in counsel’s recent affirmation or memorandum of law. 7 7 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 PLAINTIFF AFFIRMS IRREPARABLE HARM THAT WAS PREVIOUSLY DEEMED INSUFFICIENT AND THE WEIGHING OF THE EQUITIES FALLS SQUARELY IN FAVOR OF OBJECTANTS 12. Pursuant to CPLR 6301, Plaintiff must establish she will (1) likely succeed on the merits6 and (2) would suffer irreparable harm absent injunctive relief and (3) the balancing of the equities are in her favor7. Plaintiff fails to meet this burden. 13. It is well established a preliminary injunction is appropriate upon showing a probability of success on the merits, danger of irreparable harm absent an injunction, and a balancing of the equities in his or her favor. See Doe v. Axelrod, 73 N.Y.2d 748, 532 N.E.2d 1272, 536 N.Y.S.2d 44 (N.Y. 1988). In deciding a preliminary injunction, “it is not for the courts to determine finally the merits of an action upon a motion for preliminary injunction; rather the purpose of the interlocutory relief is to preserve the status quo until a decision is reached on the merits”. See Gambar Enterprises v. Kelly Services, 69 A.D.2d 297, 418 N.Y.S.2d 818 (App. Div. 4th 1979). Therefore, a preliminary injunction may also be granted where injunctive relief is deemed necessary to maintain the status quo, even if movant’s success on the merits cannot be determined on the merits at that time the application for preliminary injunction is brought. See Mr. Natural v. Unadulterated Food Products, Inc., 152 A.D.2d 729, 544 N.Y.S.2d 182 (App. Div. 2nd 1989). 14. Plaintiff arrives at this court using the same affidavit of April 26, 2022 to she had used every time this relief was denied. The facts presented to show irreparable harm, and a likelihood of success, and a balancing of the equities are as insufficient now as they were then. 6 Moreover, Plaintiff’s underlying action against Defendant is founded on an illegal “handshake agreement” rooted in felonies and fraud. She has little likelihood of success therein much less against the non-party Objectants, whom Plaintiff has not obtained jurisdiction. 7 Plaintiff’s affirmed “irreparable harm” has already been found insufficient in the prior applications. 8 8 of 9 FILED: KINGS COUNTY CLERK 09/22/2023 10:31 AM INDEX NO. 502587/2018 NYSCEF DOC. NO. 327 RECEIVED NYSCEF: 09/22/2023 Defendant maintains, at its sole cost and expense, the building including taxes, insurance, utilities, mortgage, and fines imposed by Plaintiff resulting in irreparable financial harm each day. 15. Plaintiff’s motives for the within application are founded in financial greed. Beso has the pleasure of operating rent free and stealing rent from the remaining tenants at Defendants’ expense. Dated: September 22, 2023 Woodbury, New York THE LAW OFFICE OF RICHARD GRESIO /s/ Richard Gresio By:________________________________ Richard Gresio Attorneys for Objectants, Jude Bernard and JJPB 370 Lewis, LLC 7600 Jericho Turnpike, Suite 304 Woodbury, New York 11797 (516) 439-5566 TO: DURU ASSOCIATES, PLLC 123-60 83rd Avenue, Suite 1T Kew Gardens, New York 11415 JASON J. REBHUN, ESQ. 225 Broadway, Floor 38 New York, New York 10007 SHERWOOD & TRUITT LAW GROUP, LLC Attorneys for Non-Party/Proposed Intervenor JJPB 370 Lewis LLC 300 Garden City Plaza, Suite 136 Garden City, New York 11530 9 9 of 9