Legal Document: Sharyn Liddie as attorney-in-fact for LaVerna Kenney v. Wilson Kenney individually and as attorney-in-fact for LaVerna Kenney

On March 06, 2024 a MEMORANDUM OF LAW IN SUPPORT was filed involving a dispute between Sharyn Liddie As Attorney-In-Fact For Laverna Kenney, and Wilson Kenney Individually And As Attorney-In-Fact For Laverna Kenney, for Special Proceedings - Other (GOL 5-1510) in the District Court of New York County.

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INDEX NO. 152036/2024
NYSCEF DOC. NO. 23 RECEIVED NYSCEF 03/06/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--.
Sharyn Liddie, as attorney-in-fact for
LaVerna Kenney, Index No.: -2024

Petitioner, Motion Sequence #1
-against-

Wilson Kenney, individually and as attorney-in-fact for
LaVerna Kenney,
Respondent.
wenn enn een nee nee eee eee eee eee nen

MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER’S APPLICATION FOR A TEMPORARY RESTRA. ING ORDER
AND PRELIMINARY INJUNCTION

Bret Cahn
FARRELL FRITZ, P.C.
622 Third Avenue
Suite 37200
New York, New York 10017
646-237-1809

Attorneys for Petitioner Sharyn Liddie
As Co-Agent for LaVerna Kenney

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TABLE OF CONTENTS

Page(s)

Table of Authorities

Preliminary Statement.

Statement Of Facts .......c.cccccccesessesecseseseeseseeeseeeeseseesesessesssesssacsesassessassesassesesassesecaeseeacseseeeeseeeeseaneees 3

Argument

Sharyn is Entitled to Injunction Reliefto Preserve the Status Quo During the Pendency of
this Action

I Sharyn Is Likely to Succeed on the Merits.

A. Wilson Breached His Fiduciary Duties to LaVerna

Wilson’s Fiduciary Duties to LaVerna

Wilson’s Misconduct.

Damage to LaVerna.

IL LaVerna Will Suffer Irreparable Harm Absent the Requested Injunction

Injunctions are Appropriate to Remedy Conversion of Identifiable Proceeds........... 9

There is a Grave Risk of an Ineffectual Final Judgment 10

Til. The Balance of the Equiti Favors Sharyn And Does Not Unduly Prejudice
Respondent 12

The Risk of Prejudice to LaVerna Far Outweighs the Risk to Wilson. ..........ee 12

Conclusion 13

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TABLE OF AUTHORITIES

Page(s)

Cases

Aetna Ins. Co. v Capasso,
75 NY2d 860 [1990]

Amity Loans, Inc. v Sterling Nat’l Bk. & Trust Co. of N.Y.,
177 AD2d 277 [Ist Dept 1991]
AQ Asset Management LLC v Levine,
111 AD3d 245 [Ist Dept 2013] 9, 10

Barbes Rest. Inc. v ASRR Suzer 218, LLC,
140 AD3d 430 [Ist Dept 2016] 12

Birnbaum v Birnbaum,
73 NY2d 461 [1989]

Matter of Brion,
2012 NYLJ LEXIS 1451, [Sur Ct. Kings County 2012] 11

Crocker Commercial Servs., Inc. v Davan Enterpris Inc.
88 AD2d 877 [Ist Dept 1982]
Deutsch v Grunwald,
165 AD3d 1035 [2d Dept 2018] 4,12

Doe v Axelrod,
73 NY2d 748 [1988]..

Dong-Pyo Yang v 75 Rockefeller Café Corp.,
50 AD3d 320 [Ist Dep’t 2008] 10

Family-Friendly Media, Inc. v Recorder Tel. Network,
74 AD3d 738 [2d Dept 2010]
Matter of Ferrara,
7 NY3d 244 [2006] 6,7,8

Gambar Enter., Inc. v Kelly Servs., Inc.,
69 AD2d 297 [4th Dept 1979]...

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Ma v Lien,
198 AD2d 186 [Ist Dept 1993] 10

Mantella v Mantella,
268 AD2d 852 [3d Dept 2000]...

Masjid Usman, Inc. v Beech 140, LLC,
68 AD3d 942 [2d Dept 2009] 13

McLaughlin, Piven, Vogel, Inc. v W.J. Nolan & Co.,
114 AD2d 165 [2d Dept 1986] 5,9, 12

Moglia v Moglia,
144 AD2d 347 [2d Dept 1988]

Matter of Naumoff,
301 AD2d 802 [3d Dept 2003]

NY Auto. Ins. Plan v NY Schs. Ins. Reciprocal,
241 AD2d 313 [Ist Dept 1997] 12

Pando v. Fernandez,
124 A.D.2d 495 [1st Dept 1986] 10

Pokoik v Pokoik,
115 AD3d 428 [Ist Dept 2014]
Props for Today, Inc. v Kaplan,
163 AD2d 177 [Ist Dept 1990]
Ruiz v Meloney,
26 AD3d 485 [2d Dept 2006] 13

Second on Second Cafe, Inc. v Hing Sing Trading, Inc.,
66 AD3d 255 [Ist Dept 2009]
Seligman v Atlas,
2013 NY Slip Op 32137[U] [Sup Ct, NY County 2013] passim

Semmler v Naples,
166 AD2d 751 [3d Dept 1990]...

Matter of Stanton,
35 Misc3d 1243[A] [Sur Ct, Bronx County 2012] 5,6, 10, 11

iii

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Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc.,
147 AD3d 1106 [2d Dept 2017]

Weissman,
112 AD2d.

Zonghetti v. Jeromack,
150 A.D.2d 561 [2d Dept 1989] 10

Statutes

CPLR 105[u]
CPLR 6301 1,4

CPLR 6311 1,4

CPLR 6313 1,4

GOL
§ 5-1510

GOL § 5-1510[]]...
GOL § 5-1505[2][a][2]
GOL § 5-1510[2][f]
GOL § 5-1510[4]

Other Authorities

12A Carmody-Wait 2d § 78:52 9, 10

13 N.Y. Civil Practice 6301:5[2]

NY PJI 3:59. 6,7

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Petitioner Sharyn Liddie (“Sharyn”),' as co-agent for her mother, LaVema Kenney

(“LaVerna”), under LaVerna’s Power of Attorney dated August 9, 2014 (“POA”) commenced

this proceeding by a verified petition dated March 1, 2024. Through this proceeding, Sharyn

seeks an Order (i) compelling her brother and co-agent under the POA, Wilson Kenney

(“Wilson,” sometimes collectively with Sharyn, the “Co-A gents"), to account for his acts as

LaVerna’s agent under General Obligations Law (“GOL”) § 5-1510(1); (ii) removing Wilson as

co-agent under the POA because he has breached his fiduciary duties as agent under GOL § 5-

1510(2)(f); (iii) directing that LaVerna Kenney’s $346,000 be returned to Sharyn Liddie, in her

capacity as agent for LaVema Kenney, under § 5-1510(4); and (iv) surcharging Wilson for his

breaches of fiduciary duty.

Sharyn respectfully submits this memorandum of law in support of her application fora

temporary restraining order and preliminary injunction under CPLR 6301, 6311, and 6313

(“Application”), restraining and enjoining Wilson from acting as agent under the POA, or

otherwise distributing, transferring, encumbering, or disposing of LaVerna’s assets during the

pendency of this proceeding.

Preliminary Statement

Petitioner Sharyn is the daughter of 99-year-old LaV erna and is a co-agent under

LaVerna’s POA with her brother Wilson. This proceeding stems from Wilson taking around

$360,000 of their mother’s money, enriching himselfto their mother’s detriment.

In August 2023, Wilson and Sharyn, as Co-Agents, sold LaVerna’s New Jersey Property

to pay for LaVerna’s care and necessary expenses. Rather than stick to the plan, Wilson pocketed

! All capitalized terms used here have the same meanings ascribed in Sharyn’s Verified Petition dated
March 1, 2024 (‘Petition), which is attached as Exhibit A to the Affirmation of Bret Cahn dated March 4,
2024 (Cahn Aff.), and is incorporated by reference.

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$310,000 of LaVerna’s money— earmarked for LaVerna’s care and necessary expenses — to

fund five certificates of deposits in his name (““CDs” and collectively, the “Transfers”). Wilson’s

self-dealing is egregious because:

e The Transfers stripped LaV erna of nearly all her liquid assets when she lacked

money to pay bills.

LaVema is 99 years old, and Wilson is 30 years younger. Despite that fact, two

CDs in Wilson’s name are in trust for LaV erna, while the other three CDs in

Wilson’s name list LaV erna as beneficiary. So LaVerna only gets her money back

if Wilson improbably dies before her.

e The Transfers subvert LaVerna’s longstanding dispositive plan. LaVerna’s Will

leaves Wilson one-third (i.e., not all) of her residuary estate. Thus, the Transfers

deprive Sharyn and her sister Karolyn of what LaVema intended them to receive

upon her death.

Wilson’s textbook self-dealing and breach of fiduciary duty demand this application to

protect LaV erna, where Sharyn seeks an injunction preventing Wilson from (i) acting as agent

under the POA and (ii) converting more of LaVerna’s assets. Four indisputable facts justify this

relief.

First, Wilson is LaVerna’s agent under the POA.

Second, as LaVerna’s agent, Wilson has a fiduciary duty to act in his 99-year-old

mother’s best interest.

Third, disregarding that duty, Wilson transferred over $360,000 of LaVerna’s money —

nearly all her liquid assets — to himself despite knowing that LaV erna needed the sale proceeds

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of LaVerna’s New Jersey Property to provide for her care and necessary expenses. Thus, any

argument that the Transfers were in LaV erna’s best interest defies belief.

Fourth, because of this self-dealing, Wilson breached his fiduciary duty to LaVerna.

When an agent transfers the principal’s assets to themself, a presumption of self-dealing and

impropriety arises. But that is not all. Not only did Wilson calculatedly purge assets from

LaVerna’s ultimate estate, but he also shirked his duty to maintain LaVerna’s home (her most

valuable asset), failed to account for his actions as agent, and ignored his co-agent’s reasonable

requests for information.

Wilson's violation of his fiduciary duties, flagrant self-dealing, and failure to account are

why Sharyn will likely succeed on the merits, removing him as co-agent. Without injunctive

relief, LaV erna will likely suffer irreparable harm; the money Wilson pocketed was designated

for LaVerna’s care, taxes, insurance, and other necessary expenses. Finally, the injunction sought

would preserve the status quo during the pendency of this proceeding and cause no prejudice to

Wilson because the assets at issue are not Wilson’s.

Statement of Facts

The Court is respectfully referred to the affirmation of Bret Cahn, dated March 6, 2024,

with exhibits, and the Verified Petition of Sharyn, with exhibits, dated March 1, 2024

(“Petition”) (see Cahn Aff., Exhibit A), ? which may be used as an affidavit for all purposes

under CPLR 105(u) for a complete recitation of the facts.

? All exhibits used here are attached to the Petition, Exhibit A to the Cahn Aff.

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Argument

SHARYN IS ENTITLED TO INJUNCTIVE RELIEF TO PRESERVE
THE STATUS QUO DURING THE PENDENCY OF THIS ACTION

Sharyn is entitled to injunctive relief under CPLR 6301, 6311, and 6313 to preserve the

status quo pending a final determination in this proceeding. To be entitled to a preliminary

injunction, a plaintiff must show a likelihood of ultimate success on the merits, the danger of

irreparable injury, and that the balance of equities is in her favor (see CPLR §6301; Aetna Ins.

Co. v Capasso, 75 NY 2d 860 [1990]; Deutsch v Grunwald, 165 AD3d 1035, 1037 [2d Dept

2018]). The decision to grant an injunction rests within the court's sound discretion (D oe v

Axelrod, 73 NY 2d 748, 750 [1988]; see also Gambar Enter., Inc. v Kelly Servs., Inc., 69 AD2d

297, 306 [4th Dept 1979] [holding that “‘on an appeal from the granting of a preliminary

injunction, we should not interfere with the exercise of discretion by Special Term and will

review only to determine whether that discretion has been abused”]).

An injunction is appropriate where “the granting of the relief is essential to maintain the

status quo pending trial of the action.” (Second on Second Cafe, Inc. v Hing Sing Trading, Inc.,

66 AD3d 255, 264 [1st Dept 2009]). For that reason, a temporary restraining order or preliminary

injunction is particularly appropriate where the passage of time “could render a judgment

ineffectual” (Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 147 AD3d 1106, 1109 [2d

Dept 2017] [quotations omitted]).

Consider Seligman v Atlas, where, as here, the petitioner started a proceeding under GOL

§ 5-1510 to remove his sibling as agent under a power of attorney because she breached her

fiduciary duties by transferring the principal’s (their mother) assets to herself (Seligman v Atlas,

2013 NY Slip Op 32137[U] [Sup Ct, NY County 2013]). The similarities do not end there.

There, the petitioner also moved for a preliminary injunction restraining the agent during the

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pendency of the proceeding (id.). The Court in Seligman found that the agent likely breached her

fiduciary duty and thus granted the preliminary injunction, acknowledging the purpose of such

relief is to “preserve the status quo” (id. at *19).

Likewise, Sharyn proves her entitlement to the injunctive relief sought here. Wilson’s

disregard of his fiduciary duties creates an exigency that imperils LaVerna, a 99-year-old who

needs this Court’s safeguarding.

I Sharyn Is Likely to Succeed on the Merits

In establishing a “likelihood of success on the merits, a prima facie showing of a

right to relief is sufficient; actual proof of the case should be left to further court

proceedings” (McLaughlin, Piven, Vogel, Inc. v WJ. Nolan & Co., 114 AD2d 165, 172

73 [2d Dept 1986], lv. denied 67 NY 2d 606 [1986]; see 13 N.Y. Civil Prac. 6301:5[2];

Weissman, 112 AD2d at 1086 [“A prima facie showing ofa reasonable probability of

success is sufficient; actual proof of the petitioners' claims should be left to a full hearing

on the merits.””]). The party seeking the injunction does not bear the burden to show that

success is certain; the burden is to show merely that a “likelihood of success” exists (See

Props for Today, Inc. v Kaplan, 163 AD2d 177, 178 [1st Dept 1990] [“plaintiff
has not

shown that its success is certain, but it is in no way obliged to do so”]).

The movant “is not required to show conclusively that he or she would prevail on the

merits to obtain the injunction” (see 13 N.Y. Civil Prac. 6301:5[2]; see also Matter of Stanton, 35

Misc3d 1243[A], at*3 [Sur Ct, Bronx County 2012] [citations omitted] [“The likelihood of

success on the merits does not require that the movant establish a right to summary judgment or

even that there is no doubt about whether the movant will ultimately prevail.”]). Instead, “actual

proof of the case should be left to further court proceedings” (see McLaughlin, Piven, Vogel, Inc.

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vWJ. Nolan & Co., Inc., 114 AD2d 165, 172-73 [2d Dep’t 1986]; see also Stanton, supra, at *3

[holding that a “prima facie showing of a right to relief is sufficient,” as “actual proof
of the case

should be left to further proceedings”]).

A Wilson Breached His Fiduciary Duties to LaVerna

“To establish a breach of fiduciary duty, the movant must prove the existence of a

fiduciary relationship, misconduct by the other party, and damages directly caused by that party's

misconduct” (Pokoik v Pokoik, 115 AD3d 428, 429 [1st Dept 2014]). “[I]t is elemental that a

fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is

to protect” (Birnbaum v Birnbaum, 73 NY 2d 461, 466 [1989]). “This is a sensitive and

‘inflexible’ rule of fidelity, barring not only blatant self-dealing, but also requiring avoidance of

situations in which a fiduciary's personal interest possibly conflicts with the interest of those

owed a fiduciary duty” (id. at 466). As shown below, Wilson falls so short of this bar that it

leaves no doubt he abused his status as fiduciary.

Wilson’s Fiduciary Duties to LaVerna. GOL § 5-1505(2)(a)(2) provides that an agent

under a power of attorney has a fiduciary duty to the principal (see also Matter of Ferrara, 7

NY 3d 244 [2006]). As a corollary, the agent must act in the principal's best interest (Moglia v

Moglia, 144 AD2d 347 [2d Dept 1988]). That much is beyond dispute. But Wilson’s obligations

are more than that. The Court of Appeals made clear that an agent owes the principal the utmost

good faith and undivided loyalty, and the agent must act with the highest principles of morality,

fidelity, loyalty, and fair dealing (Ferrara, supra at 254; see also NY PJ1 3:59).

Wilson’s Misconduct. Thus, an agent may not make a gift of the principal’s asset to

himself (Semmler v Naples, 166 AD2d 751, 752 [3d Dept 1990], appeal dismissed 77 NY 2d 936

[1991]; see also Ferrara, supra at 253-255). Indeed, when an agent transfers the principal’s

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property to himself — like Wilson — it creates a presumption of self-dealing and impropriety

(Matter of Naumoff, 301 AD2d 802 [3d Dept 2003], lv dismissed 100 NY 2d 534 [2003];

Mantella v Mantella, 268 AD2d 852 [3d Dept 2000]). So strong is this presumption of self-

dealing and impropriety that an agent can only rebut it by proving the transfer benefiting the

agent was in the principal’s best interest (Ferrara, supra at 252-254; see also NY PJI 3:59).

In his “accounting,” Wilson glaringly omitted the dozens of ATM withdrawals he made

from LaVerna’s account in little over a month, totaling almost $14,000 (ExhibitA to the Cahn

Aff. | 23-27; Exhibits 2-6 to the Petition). Making matters far worse, he then misappropriated

$346,000 from LaVerna’s account, converting those funds into 5 CDs totaling $310,000 — all in

Wilson’s name (id. {§] 45-48; Exhibits 12-16 to the Petition). And $36,000 remains unaccounted

for (id. 48).

Matter of Ferrera is instructive. There, the Court of Appeals set aside the agent’s transfer

to himself of virtually all his uncle’s assets because the “gifts” were not in the principal’s best

interests (i.e., carrying out financial, estate, and tax plans) (Ferrara, supra at 254). Wilson

cannot be heard to argue that he engaged in “planning” on LaVerna’s behalf. First, Wilson

cannot credibly contend that LaV era authorized the Transfers because she lacks the requisite

capacity to transform her longstanding estate plan, leaving Wilson one-third (Exhibit A § 15-

16; Exhibit 17 to the Petition). Second, LaVerna has nothing near a taxable estate (id. | 35).

Third, LaVema is 30 years older than Wilson (id. § 4). Thus, given their respective ages and

LaVerna’s need for liquidity, creating CDs in Wilson’s name with LaVerna as a beneficiary on

Wilson’s death is plainly not in LaVerna’s best interest. It is, however, plainly in Wilson’s.

Consequently, Wilson cannot rebut the presumption of self-dealing and impropriety.

There can be no legitimate dispute: Wilson furthered his own interests at LaVerna’s expense.

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While the inquiry could end there, unfortunately, there is more. Besides misappropriating

LaVerna’s money, Wilson neglected his duty to maintain the New Y ork Property, LaVerna’s

valuable asset;? disregarded his duty to account;* and ignored his co-agent’s reasonable requests

for information.°

Damage to LaVerna. The Court in Ferrara likewise held that the term “best interest”

does not include transfers that “impoverishes a donor” or “supplant a will” (Ferrara, supra at

253-255). So too here. Indeed, LaV erna often lacks enough money to pay her expenses (Exhibit

A §§.17-21). Wilson knew this but looted the lion’s share of her liquid assets anyway, depriving

LaVera of money to pay her bills and home care attendant (id. 1 17-18, 46-48; Exhibits 2-6

and 12-16 to the Petition). How can Wilson justify making a 99-year-old’s assets illiquid? And

again, LaVerna’s longstanding estate plan leaves Wilson one-third (id. § 16; Exhibit 17 to the

Petition). For these reasons, Wilson supplanted LaVerna’s will, impoverishing her in the process,

much like in Ferrara.

Applying these well-settled legal standards to similar facts, the Court in Seligman v Atlas

granted the petitioner’s application for a preliminary injunction restraining the self-dealing agent

(Seligman, supra at *12-13). Just as the agent in Seligman, Wilson transferred the principal’s

money to himself (id.). But Wilson’s violation of his fiduciary duty was worse because he

transferred nearly all of LaVerna’s liquid assets to himself when he knew those funds were

earmarked for LaVerna’s care and necessary expenses (Exhibit A {] 17-21). One would be hard-

pressed to find a clearer example of self-dealing.

5 Exhibit A $9 36-38.

“Td. 9939-43.

31d.

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Thus, much like in Seligman, Sharyn “amply demonstrates a likelihood of success on

h{er] claim that respondent breached hfis] fiduciary duty to the Principal by engaging in self-

dealing and other actions adverse to the best interests of the Principal” (Seligman, supra at *12).

IL. LaVerna Will Suffer Irreparable Harm Absent the Requested Injunction

“The second element of proof required for a preliminary injunction is proof that

irreparable injury will occur if the reliefis denied” (see McLaughlin, Piven, Vogel v

Nolan & Co., 114 AD2d 165, 174, lv. denied, 67 NY 2d 606 [1986]). Wilson will likely

argue that, generally, economic loss, compensable by monetary damages, is not

irreparable harm to obtain a preliminary injunction (Family-Friendly Media, Inc. v

Recorder Tel. Network, 74 AD3d 738 [2d Dept 2010]). While this is typically true,

exceptions to that rule apply here.

Injunctions are A ppropriate to Remedy Conversion of Identifiable Proceeds. W here,

as here, the party converts the identifiable proceeds sought in the action, injunctive relief is

appropriate (Amity Loans, Inc. v Sterling Nat'l Bk. & Trust Co. of N.Y., 177 AD2d 277, 279 [1st

Dept 1991] [holding that a restraint on funds held by a financing company was appropriate

because it was required to maintain the funds in trust for the party seeking the injunction]; see

also 12A Carmody-Wait 2d § 78:52; Crocker Commercial Servs., Inc. v Davan Enterprises, Inc.,

88 AD2d 877 [1st Dept 1982] [holding that “injunctive relief is appropriate to remedy the

conversion of identifiable proceeds as sought in the underlying action”]).

Consistent with that reasoning, “an exception to [the rule that there can be no irreparable

harm from the loss of money] exists where the monies at issue are identifiable proceeds that are

supposed to be held for the party seeking injunctive relief” (AQ Asset Management LLC v

Levine, 111 AD3d 245 [1st Dept 2013]). Here, the funds at issue are the proceeds from the sale

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of LaVerma’s New Jersey Property (Exhibits 2, 12-16 to the Petition). The Co-A gents were duty-

bound to hold and manage those assets for LaV erna. Indeed, those proceeds from the sale of the

New Jersey property were earmarked for LaVerna’s living expenses over the next few years,

including food, utilities, medical expenses, taxes, insurance, and her home health aide (Exhibit A

99 17-18, 21). Rather than stick to the plan and fulfill his fiduciary duties, Wilson converted

those sale proceeds and created the CDs in his own name (id. 1 45-48; see also Exhibits 2-6,

12-16 to the Petition). And so, Wilson holds “identifiable proceeds” that are “supposed to be

held” for LaVerna (AQ Asset Management LLC, supra).

Courts also grant injunctive relief where preserving the status quo concerning securities

— like the CDs at issue here — is necessary. For example, in Dong-Pyo Yang v 75 Rockefeller

Café Corp., the Appellate Division found that the imposition of a preliminary injunction

enjoining, among other things, the sale of certain securities was appropriate (see D ong-Pyo Yang

v 75 Rockefeller Café Corp., 50 AD3d 320 [1st Dep’t 2008]).

There is a Grave Risk of an Ineffectual Final
J udgment. Likewise, courts may grant

an injunction when they are being depleted in a manner that could render a final judgment

ineffectual (Zonghetti v. Jeromack, 150 A.D.2d 561 [2d Dept 1989]; Pando v. Fernandez, 124

A.D.2d 495 [1st Dept 1986]; 12A Carmody-Wait 2d § 78:52; see also Ma v Lien, 198 AD2d 186,

186 [1st Dept 1993] [injunctive relief escrowing disputed funds appropriate where the dissipated

funds may be “otherwise unavailable for recovery”]

By extension, a preliminary injunction is appropriate if there is reason to believe that the

party opposing the motion might lack the means to pay an award or judgment without using the

funds at issue. In Matter of Stanton, the court found “there might be irreparable injury absent the

injunction [because] the respondent might have insufficient funds at the conclusion of the

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litigation to pay the judgment that may eventually be entered in this proceeding” (Matter of

Stanton, 35 Misc 3d 1243[A], 1243A, 2012 NY Slip Op 51136[U], *3-4 [Sur Ct. Bronx County

2012]). In the same way, based on Wilson’s conduct in stealing LaVerna’s money, it is

reasonable to conclude that he may lack enough assets to pay LaVema back, rendering a

judgment ineffective. Thus, an injunction is essential to safeguard LaV era.

“Moreover, the right to money damages is not sufficient where it is shown that the

applicant does not have a legal remedy that is plain, adequate, complete and as practicable as the

equitable remedy. . . It is better to prevent the violation of a party's rights at the beginning rather

than allow them to be violated and remit the petitioner to his remedy at law, which may be

uncertain (Matter of Brion, 2012 NY LJ LEXIS 1451, *8-9 [Sur Ct. Kings County 2012] [citation

omitted]).

As in Brion, “[i]t is better to prevent the violation of [LaVerna’s] rights at the beginning

rather than allow them to be violated” by Wilson, forcing 99-year-old LaV erna to spend time and

money chasing Wilson. LaVerna will suffer irreparable harm if the Court does not immediately

stop Wilson’s dissipation of LaVerna’s assets because there may be no (or limited) other funds to

make LaV ema whole and pay her living expenses.

Finally, Seligman is again instructive. There, the Court found that petitioner established

irreparable injury because absent an injunction, the self-dealing agent had further “opportunity

for respondent to shift management and control of the Principal's assets, and deprive petitioner of

the opportunity to participate and share equally with respondent the management of the

Principal's affairs” (Seligman v Atlas, 2013 NY Slip Op 32137[U], *12 [Sup Ct, NY County

2013]). Just as in Seligman, an injunction is necessary to prevent Wilson from secreting

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LaVerna’s money and depriving Sharyn of the opportunity to manage LaVerna’s affairs, thus

subverting the principal’s intent.

Ill. The Balance of the Equities Favors Sharyn
And Does Not Unduly Prejudice Respondent

The equities balance in favor of the movant when the irreparable injury to be sustained

“‘is more burdensome. . . than the harm caused to defendant through imposition of the

injunction” (McLaughlin, 114 AD2d at 174 [2d Dept 1986] [citation omitted]; see also NY Auto

Ins. Plan v NY Schs. Ins. Reciprocal, 241 AD2d 313 [1st Dept 1997] [finding “[t]he purpose of

such [injunctive] relief is not to reach a determination of the ultimate merits of the action, but to

‘maintain the status quo’ pending such resolution” [citation omitted]).

The Risk of Prejudice to LaVerna Far Outweighs the Risk to Wilson. The Court’s

determination weighing the balance of equities turns on the “relative prejudice to each party

accruing from a grant or denial of the requested relief.” (Barbes Rest. Inc. v ASRR Suzer 218,

LLC, 140 AD3d 430, 432 [1st Dept 2016]). Here, the equities balance in Sharyn’s and LaVerna’s

favor. Wilson breached his fiduciary duty to LaVerna’s detriment. So any money restrained by

this Court derives from Wilson’s self-dealing and breach of fiduciary duty. Thus, there is no

credible argument that an injunction restraining Wilson prejudices him more than LaV erna (see

Deutsch v Grunwald, 165 AD3d 1035, 1037 [2d Dept 2018] [affirming order enjoining

defendants from selling, disposing, or otherwise encumbering the subject property at issue]).

Instead, an injunction does not prejudice Wilson at all because it is not his money at issue — it is

LaVerna’s and LaVerna’s alone. The Court should therefore hold that the equities balance in

favor of Sharyn as LaVerna’s agent.

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Finally, as described above in section II, the Court must intervene to maintain the status

quo, without which a final judgment may be ineffectual (see Masjid Usman, Inc. v Beech 140,

LLC, 68 AD3d 942, 943 [2d Dept 2009]; Ruiz v Meloney, 26 AD3d 485, 486 [2d Dept 2006]).
In sum, Sharyn has proved her entitlement to a preliminary injunction enjoining Wilson

from distributing, transferring, encumbering, or otherwise disposing of LaVerna’s assets during

the pendency of this proceeding. “[T]he harm [s]he would suffer in the absence of an injunction

is greater than the harm the injunction would cause” Wilson (Seligman v Atlas, 2013 NY Slip Op

32137[U], *12 [Sup Ct, NY County 2013]).
Accordingly, the Court should issue the injunction.

Conclusion

For the reasons stated above and in the accompanying submissions, Sharyn respectfully

requests that the Court grant the Application restraining and enjoining Wilson from acting as

agent under the POA, or otherwise distributing, transferring, encumbering, or disposing of

LaVerna’s assets during the pendency of this proceeding, along with such other and further relief

that the Court deems just, necessary, and proper.

Dated: New York, New York
March 6, 2024
Respectfully submitted,

FARRELL FRITZ, P.C.

By:
Bret Cahn
Attorneys for Petitioner Sharyn Liddie
As Co-Agent for LaVerna Kenney
622 Third Avenue
Suite 37200
New York, New York 10017
646-237-1809

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CERTIFICATION OF COUNSEL

The foregoing Memorandum of Law was prepared by computer using Microsoft Word.

The total number of words in the document, excluding the caption, Table of Contents, Table of

Authorities, and signature block is 3,766. This certification complies with Rule 202.8-b of the

Uniform Civil Rules for the Supreme Court and the County Court.

Bret Cahn

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