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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------- ---X
ALISON WARD FRANK, on behalf of herself :
and Others Similarly Situated, :
: AFFIRMATION IN OPPOSITION
Plaintiffs, : TO APPLICATION FOR
: TEMPORARY RESTRAINING ORDER
-against- :
: Index No. 159764/2019
STEPHEN A. MANDELL, STEPHANIE J. :
MANDELL, DAVID MANDELL, and
JOYCE MANDELL,
Defendants.
_.....___ _ _ _ __ _ __ _..__ _ _ _.._........._
_.·----------X
HILLARY A. FROMMER, being duly sworn, deposes and states as follows:
1. I am counsel with the law firm of Farrell Fritz, P.C., attorneys for defendants
Stephanie A. Mandell and David Mandell (collectively "Stephanie and David"). As such, I am
fully familiar with the facts and circumstances set forth herein. I respectfully submit this
Affirmation in opposition to the application of plaintiff Alison Frank ("Frank") for a temporary
restraining order ("TRO") preventing Stephanie and David's father, defendant Stephen A.
Mandell ("Stephen"), from accessing and/or utilizing funds that are rightfully his. Stephanie and
David reserves the right to oppose Frank's frivolous motion for a preliminary injunction and
bring a emss-motion.
PRELIMINARY STATEMENT
2. Frank brought this action - on her own behalf on behalf of
and, improperly,
situated" -
unidentified "similarly individuals seeking to recover the sales proceeds of a
cooperative apartment (the "Apartment") that was owned by Stepheñ and his deceased wife of
nearly 30 years, Marilyn LaMarche ("Decedest"). It isundisputed that upon Decedent's death,
nearly 19 months ago, Stephen became the sole owner of the apartment and, recently, sold it.
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Frank, Decedent's niece, seeks to recover the sales proceeds on the basis of an alleged oral
agreemeñt between Stephen and Decedent which, even if itexisted, is void and unenforceable in
accordance with two applicable statutes of frauds. Notwithstanding that this case is solely about
- whole"
money Frank does not dispute, nor could she, that an award of money would "make her
- she now seeks the equitable of a and a
extraordinary remedy TRO, ultimately preliminary
injunction, to prevent Stephen from accessing his money during the pendency of this action.
3. Frank is playing fast and loose with this Court. Her motion papers are rife with
material omissions and misstatements - one of which is to her attomey's
that, contrary
representation, defendants did not agree to keep the Apartment's sales proceeds in a bank
accounting pending the resolution of this action (see Davis Affirm. ¶ 8). Rather, the agreement
drafted by Mr. Davis and executed by counsel for the parties on November 7, 2019 (Exhibit 1),
was that the sales proceeds would be maintained in a bank account and that Frank would be
30-days'
provided notice before Stephen distributed it.In point of fact, Mr. Davis and his client
expressly recognized and agreed that those funds could be distributed, on notice. That Frank
claims to be somehow surprised by the fact the funds will be distributed on December 16, strains
credulity. Indeed, she has known since November 15 that Stephen intended to distribute funds,
as agreed. For weeks, she sat on her hands and did nothing. This inaction speaks volumes.
4. But more importantly, Frank's assertion that a TRO is necessary to maintain the
status quo is without merit. There is no status quo to maintain To the contrary, Frank
patently
is now trying to change the status quo and prevent Stephen from doing what she expressly
agreed he could.
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5. This entire action is &ivolous'; this motion isjust the tip of the iceberg. Indeed,
most recently, Frank amended her complaint in an irrefutable, and unsuccessful attempt to "plead
around"
aKrmative defenses.
6. It should be noted, at the outset, that the Complaint has been a moving target. In
(" Complaint"
October 2019, she filed her original Verified Complaint Original ) in which she
alleged that Stephen "expressly promiss[ed] his wife that if she would transfer ownership of the
[cooperative apartment] shares, he would, in return, provide in his will that upon his death, the
family"
proceeds &om the [Apartment] sale would be given back to [Decedent's] (see Exhibit 2,
f[2, 21-22). In other words, as alleged in the Original Complaint, the oral agreement required
Stephen to make a testamentary bequest of the Apartment sales proceeds to Decedent's family.
7. As the allegations set forth above, concerning Stephen's agreement only to make
a testamentary gift of the sales proceeds to Decedent's family (see id. g 2, 21-22, 41), were not
made on information and belief, they "constitute[] formal judicial admission[s] which, even
admitted"
though subject to a subsequent, valid amendment, remain[] evidence of the facts
(Bogoni v Friedlander, 197 AD2d 281, 291-292 [1st Dept 1994]).
8. Upon receiving the Original Complaint, counsel for Stephanie and David wrote to
Frank's counsel, advising him, inter alia, that the same was &ivolous, inasmuch as all the claims
asserted therein were barred by the applicable statutes of &auds, including that set forth in EPTL
$ 13-2.1, which provides that contracts to make testamentary bequests must be in writing to be
enforceable (see Penzer letter dated November 12, 2019 [Exhibit 3]). Counsel demanded that
Frank withdraw the Original Complaint.
' against will
Stephanie and David disagree with Frank's falsenarrativeand allegations them, and evidence
—
::l"
"-::='y show them to be false.However, such response isnot setforth herein as itisnot necessary on the instant
motion.
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9. Itwas only after Frank was alerted to the applicability of section 13-2.1 that she
amended her pleading to allege, contrary to the allegations of the Original Complaint, that the
oral agreement between Stephen and Decedent actually had two components, one of which
governed the disposition of the Apartment sales proceedsprior to Stephen's death (see Ameñded
Complaint [Exhibit 4] ¶ 27).
10. In the Amended Complaint, Frank now alleges that in 2008, Stephen and
Decedent made an oral agreement whereby she agreed to transfer ownership of the Apartment to
herself and Stephen as joint tenants with rights of survivorship and, in return, Stephen allegedly
agreed to give the sales proceeds of the Apartment to members of Decedent's family if/when he
sold it(id. W 2, 22-23). It isimplausible that a mere oversight or mistake caused Frank to failto
allege that Stepheñ had also agreed to provide the sales proceeds to Decedent's family prior to
his death. Indeed, given that Frank was aware when she filed the Original Complaint that
Stephen intended to sell the Apartment (see Original Complaint [Exhibit 2] ¶ 38), itstrains
credulity to believe that Frank only inadvertently failed to allege that Stephen had promised to
provide the sales proceeds to Decedent's family prior to his death.
11. Frank is attempting to change the material facts underlying the claims she asserted
to overcome defenses that are irrefutably fatal to her claims. This, as the First Department has
made clear, is improper (see Bogoni, supra at 292 [stating that the purpose of an amended
pleading "is to permit the plaintiff to amend [her] theory of recovery to comply with the facts as
they unfold, not to permit the plaintiff to alter [her] representation of material facts to best suit
[her] theory of recovery and thereby overcome defenses raised in opposition"]). Frank's actions
reek of frivolity.
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12. As explained briefly below, and as will be demonstrated more fully at an
appropriate juncture, not only will Frank not suffer any irreparable harm absent immediate
injunctive relief, there is no possibility that she will succeed on the merits of her claims, let alone
a likelihood of success. The Court should therefore deny her application for a TRO.
ARGUMENT
13. The extraordinary and drastic nature of preliminary injunctive remedy and the
d~ger that itsmisuse may result ia severe loss or inconvenience to an innocent party require that
caution"
the power to issue itbe exercised with "great (Lyon v Water Commissioners of
Binghantton, 228 AD 585 [3d Dept 1930]), and that itbe used sparingly (see Town of Porter v
Chem Trol Pollution Servs., 60 A.D.2d 987 [4th Dept 1978]; Silvestre v De Loaiza, 12 Misc3d
492 [Sup Ct, NY County 2006]).
14. In order to demAnst ate entitlement to a preliminary injunction, a movant bears
showing"
the burden of making a "clear of (1) a likelihood of success on the merits; (2)
iiIcparable harm in the absence of an injunction; and (3) a balance of the equities in favor of the
movant (see Fulop v Sea Gate Ass'n, 214 AD2d 536 [2d Dept 1995]; see also 5'.T. Grant Co. v
Srogi, 52 NY2d 496, 517 [1981]). Here, there is no likelihood that Frank will succeed on any of
her claims.
I.ikc'-'"::"
A. There is No of Success on the Merits Because
All Frank's Claims are Barred bv the Statutes of Frauds
15. Even assuming the truth of the allegations of the Amended Complaint, for present
around"
purposes, Frank has failed in her efforts to "plead the statute of &ands defense. Even
assuming, arguendo, that Frank could separate out the two components of the oral agreement as
alleged in her improper Amended Complaint —she cannot —both components are unenforceable
pursuant to the statutes of frauds.
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16. The aspect of the oral agre~ —.«e.—.t
allegedly requiring Stephen to bequeath the
Apartment sales proceeds to Decedent's family is unenforceable pursuant to EPTL $ 13-2.1(2),
which provides that "every agreement, promise or undertaking is unenforceable unless itor some
note or memorandum thereof is in writing and subscribed by the party to be charged therewith,
or by his lawful agent, ifsuch agre~=.~=:, promise or undertaking... is a contract to make a
kind"
testamentary provision of any (EPTL $ 13-2.1[2]; see also Irtre Will ofDrogin, 144 Misc
2d 747 [Sur Ct, NY County 1989] [statute of &auds barred the oral promise to nominate the
petitioner as executor as that constituted a testansen~y act under EPTL g 13-2.1]).
17. The alleged oral agreement is also unenforceable pursuant to General Obligations
Law ("GOL") $ 5-701(a)(1), as it could not be performed before the end of either Stephen's
lifetime.~
lifetime or Decedent's This is because the agreement, as alleged, required that Stephen
make a bequest in his will for the benefit of Decedent's family, and, by necessary construction,
that he keep a will containing such bequest in effect until his death. Thus, Stephen cannot
complete performance of the alleged oral agreement before the end of his lifetime (see Matter of
Hennel, 29 NY3d 487, 493 [2017] [noting that Appellate Division had correctly held that
agre~ —.«~nL notto revoke or alter a will would be within the ambit of section 5-701(a)(1)]; see
also Matter of Douglas, 169 Misc 716 [Sur Ct, NY County 1938] [an agreement which was to
life,"
run "for the remainder of [promisor's] although terminating at the instant of promisor's
death, could not be performed before the end of a lifetime, and hence was barred by statute of
frauds], ag'd, 256 AD 1070 [1st Dept 1939]).
z lifetime"
Although the section's"before the end of a provision applies to contractstheperformance ofwhich
— — —i.e.,
cannot be co p.ctcd before the end of thelifetimeof eitherparty to thealleged oral ~ —: the party
seeking to enforceitor theparty insistingon theapplication of thestatuteof &auds to nullifyit(seeMeltzer v
Koenigsberg, 302 NY 523 [1951]) —oreven a nonparty tothe contract,as inMeltzer, here, performance of the
alleged oralagreement cannot be cr ~'~ted before theend ofStephen's lifeand also could not be cc —.plate
before
the end of theDecedent's lifetime.
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"new" -
18. The component of the alleged oral agreement Stephen's alleged
agreement to provide the sales proceeds to the Decedent's family prior to his death, were he to
sell the Apartment - is also unenforceable pursuant to section as it could not be
5-701(a)(1),
performed before the end ofDecedent's lifetime; Stephen only became the sole owner of the
Apartment, capable of selling the same, upon Decedent's death.
19. All Frank's claims - for third and unjust
party beneficiary, promissory estoppel,
enrichment - depend for their success on proof of the unenforceable oral and too
agrecrncnt, they
are barred by the statute of frauds (see Dung v Parker, 52 NY 494, 497 [1873] ["Whatever the
form of the action at law may be, if the proof of a promise or contract, void by the statute [of
frauds], is essential to maintain it,there can be no recovery"]; accord Kocourek v Booz Allen
Hamilton Inc., 71 AD3d 511, 512 [Ist Dept 2010]).
20. Even assuming that Frank were not barred from asserting claims grounded in the
alleged oral agrccment (which she is),any argument that Frank is likely to succeed on the merits
of her claims to recover the Apartment sales proceeds now,i.e., prior to Stephen's death, is
belied by the very document on which she relies. Frank cites Stephen's April 2013 Last Will and
evidence"
Testament as "corroborative written of the alleged oral agreement (see Amended
26).3
Coraplaint [Exhibit 4] ¶ But that is not what that instrument says. That will provides that,
upon Stephen's death, Frank and other members of her family are to receive in equal shares "an
[Apartment]"
amount equal to the net proceeds of the sale of the (id.¶ 24).
3 Of that cane'*
course, instrument does not a writing sufficientto satisfythestatuteof frauds as itfailstocontain
the materialterms of thealleged oralagreement; itdoes not even reference it(see AlliedSheet Metal Works, Inc. v
Kerby Saunders, Inc.,206 AD2d 166, I68 [1stDept 1994] ["To be considered a sufficient
memorandum within the
ambit of the Statuteof Frauds, a writing 'must designate theparties, identifyand describe the subjectmatter and
stateallthe essentialor material terms of thecontract'"]).
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21. Frank cannot have itboth ways. If, as she alleges, the 2013 Will constitutes
evidence" - -
"corroborative of the alleged oral agreement itdoes not then italso must be
"corroborate"
deemed to that Frank has no claim to the sales proceeds prior to Stephen's death.
Frank's claim, ifshe has one (she does not), would be against Stephen's estate upon his death, if
time4
whatever will is in effect at that does not satisfy the alleged agreement.
22. Frank's claims are legally insufficient as she has not pleaded the material
elements of any of them, as will be demonstrated at an appr0priate juncture. But the Court need
look no further than the statutes of frauds to determine that Frank has no likelihood of success.
B. There is No Irreparable Iniury
23. It iswell-settled that irreparable injury means an injury for which money damages
are insufficient (see Walsh v Design Concepts, Ltd., 221 AD2d 545, 455 [2d Dept 1995]).
Where a "litigant can fully be recompensed by a monetary award, a preliminary injunction will
issue"
not (In re Rice, 105 AD3d 962, 963 [2d Dept 2013]; Family-Friendly Media, Inc. v
Recorder Tel. Network, 74 Ad3d 738, 739 [2d Dept 2010] ["[e]conomic loss, which is
compensable by money damages, does not constitute irreparable harm"]).
24. Frank's Amended Complaint seeks only monetary damages. By her own
pleading, she can be fully compensated for her alleged injury by a monetary award. An
injunction is neither warranted nor appropriate.
25. Frank does not cure this fatal flaw by arguing that she is seeking to enjoin the
distribution of identifiable proceeds because, as discussed above, Frank's entitlement to the sales
proceeds is sharply disputed (see Elghanayan v Iannucci, 145 AD2d 345 [1st Dept 1988]
As the Court of Appeals held, "[i]tisthe essence of willthatuntil thetestator'sdeath itisambulatory and
revocable"
(Moultrie v Hunt, 23 NY 394, 395 [1861]; seealso American Commitics for Weizmann Instituteof
Science v Dunn, v10 NY3d 82 [2008]; Leonard v Harney, 173 NY 352, 354 [1903]).
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dispute"
[injunctive relief dmJM where there was a "sharp as to the ownership of the specific
property at issue]). The Appellate Division's decision in Di Stefano v PSFB Assocs., 103 AD2d
839 (2d Dept 1984), is instructive in this regard. There, the court modified the lower court's
grant of injunctive relief upon holding that a preliminary injunction was not warranted despite
the plaintiff s claims that proceeds from the sale of real property were to be deposited into a
certain account because, should the plaintiff prevail, he would be fully compcñsated by money
damages.
fund" -
26. Frank's argument that she is entitled to a "specific i.e.,the actual sales
proceeds, upon a sale of the Apartment, is belied by the provision of Stephen's April 2013 Will
upon which she relies. That will provides that, upon Stephen's death, Frank and other members
of her family are to receive in equal shares "an amount equal to the net proceeds of the sale of
[Apartment]"
the (Amended Complaint [Exhibit 4] ¶ 24 [emphasis added]). Giving effect to the
"corroborating"
allegedly document, Frank is not entitled to the sales proceeds, but only to "an
to" fund."
amount equal those proceeds. In other words, she has no claim to a "specific
Defendants'
C. The Equities Balance_in Favor
27. With respect to the final prong, the balancing of competing equities, Frank has
failed to demonstrate that the harm to her without the TRO will be greater than the harm to
Defendants if the injunction is granted (Nassau Roofing & Sheet Metal Co. v. Facilities
Development Corp., 70 AD2d 1021 [3d Dept 1979]). Indeed, the only person who will be
harmed if the injunction is granted is Stephen, as he will be denied the access to and use of funds
that rightfully belong to him, as well as losing money on investments and related income as the
funds sita bank account. The use of these funds is critical as Stephen must now pay for his
defense of this frivolous litigation in the Supreme Court.
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28. Additionally, "[i]n balancing the equities, the court should consider various factors,
hands"
including . . . whether [the movant] has unclean ( United for Peace & Justice v Bloomberg,
5 Misc3d 845, 849-850 [Sup Ct, NY County 2004] ["plaintiffs delay in coming to court, and its
decision to renege on its [earlier] commitment, demonstrate that itlacks the clean hands that are a
prerequisite for the grant of equitable relief - regardless of any alleged or even actual wrong
attributable to defendants"] ; Levy v Braverman, 24 AD2d 430 [1st Dept 1965] [holding that
unclean hands precludes a party from obtaining equitable relief if that party is itself guilty of
[1"
inequitable conduct]; Curry v First Transcapital Corp., 190 AD2d 507 Dept 1993] [holding
that Plaintiff came into court with unclean hands and was therefore not entitled to equitable
remedy]).
29. Here, as discussed above, Frank's hands are anything but clean.
30. Finally, as demonstrated above, Frank is not entitled to a TRO. However, if the
court is inclined to grant such relief,itshould require Frank to post an undertaking to allow Stephen
to recover the damages and costs he will sustain by reason thereof, if itis finally determined that
Frank was not entitled to such relief (see CPLR 6312[b]; CPLR 6313[c]; 2339 Empire Mgt., LLC
v 2329 Nostrand Realty, LLC, 71 AD3d 998 [2d Dept 2010] ; see also Honeywell, Inc. v Technical
Bldg, 103 AD2d 433 [3d Dept 1984] ["Where, for whatever reason, an undertaking is not posted
as a condition for a preliminary injunction or a temporary restraining order, the enjoined party is
without a remedy unless he can prove malice"]).
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CONCLUSION
31. For the reasons set forth herein, Defendants Stephanie Mandell and David Mandell
respectfully request that the Court deny Plaintiff s request for a TRO and preliminary injunction.
Dated: December 12, 2019
HILLAR A. FROMMER
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK File No. 159764/2019
ALISON WARD FRANK, on behalf of herself
and Others Similarly Situated,
Plaintiffs,
-against-
STEPHEN A. MANDELL, STEPHANIE J. MANDELL.
DAVID MANDELL. and JOYCF, MANDELL,
Defendants.
AFFIRMATION IN OPPOSITION TO APPLICATION FOR TEMPORARY
RESTRAINING ORDER
FARRELL FRITZ, P.C.
Attorneys for Defendants
Stephanie A. Mandell and David Mandell
400 RXR Plaza
Uniondale, NY 11556
(516) 227-0700
===--=- == -====_---===--========-=====---
This certification, pursuant to 22 N.Y.C.R.R. Part 130-1.1-a,
applies to the following papers contained within this back:
1. Affirmation in Opposition to
Application for Temporary
Restraining Order
2. Exhibits 1-4
Dated: New York, New York
December 12, 2019
H ary A. Frommer
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Preview
FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------- ---X ALISON WARD FRANK, on behalf of herself : and Others Similarly Situated, : : AFFIRMATION IN OPPOSITION Plaintiffs, : TO APPLICATION FOR : TEMPORARY RESTRAINING ORDER -against- : : Index No. 159764/2019 STEPHEN A. MANDELL, STEPHANIE J. : MANDELL, DAVID MANDELL, and JOYCE MANDELL, Defendants. _.....___ _ _ _ __ _ __ _..__ _ _ _.._........._ _.·----------X HILLARY A. FROMMER, being duly sworn, deposes and states as follows: 1. I am counsel with the law firm of Farrell Fritz, P.C., attorneys for defendants Stephanie A. Mandell and David Mandell (collectively "Stephanie and David"). As such, I am fully familiar with the facts and circumstances set forth herein. I respectfully submit this Affirmation in opposition to the application of plaintiff Alison Frank ("Frank") for a temporary restraining order ("TRO") preventing Stephanie and David's father, defendant Stephen A. Mandell ("Stephen"), from accessing and/or utilizing funds that are rightfully his. Stephanie and David reserves the right to oppose Frank's frivolous motion for a preliminary injunction and bring a emss-motion. PRELIMINARY STATEMENT 2. Frank brought this action - on her own behalf on behalf of and, improperly, situated" - unidentified "similarly individuals seeking to recover the sales proceeds of a cooperative apartment (the "Apartment") that was owned by Stepheñ and his deceased wife of nearly 30 years, Marilyn LaMarche ("Decedest"). It isundisputed that upon Decedent's death, nearly 19 months ago, Stephen became the sole owner of the apartment and, recently, sold it. 1 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 Frank, Decedent's niece, seeks to recover the sales proceeds on the basis of an alleged oral agreemeñt between Stephen and Decedent which, even if itexisted, is void and unenforceable in accordance with two applicable statutes of frauds. Notwithstanding that this case is solely about - whole" money Frank does not dispute, nor could she, that an award of money would "make her - she now seeks the equitable of a and a extraordinary remedy TRO, ultimately preliminary injunction, to prevent Stephen from accessing his money during the pendency of this action. 3. Frank is playing fast and loose with this Court. Her motion papers are rife with material omissions and misstatements - one of which is to her attomey's that, contrary representation, defendants did not agree to keep the Apartment's sales proceeds in a bank accounting pending the resolution of this action (see Davis Affirm. ¶ 8). Rather, the agreement drafted by Mr. Davis and executed by counsel for the parties on November 7, 2019 (Exhibit 1), was that the sales proceeds would be maintained in a bank account and that Frank would be 30-days' provided notice before Stephen distributed it.In point of fact, Mr. Davis and his client expressly recognized and agreed that those funds could be distributed, on notice. That Frank claims to be somehow surprised by the fact the funds will be distributed on December 16, strains credulity. Indeed, she has known since November 15 that Stephen intended to distribute funds, as agreed. For weeks, she sat on her hands and did nothing. This inaction speaks volumes. 4. But more importantly, Frank's assertion that a TRO is necessary to maintain the status quo is without merit. There is no status quo to maintain To the contrary, Frank patently is now trying to change the status quo and prevent Stephen from doing what she expressly agreed he could. 2 2 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 5. This entire action is &ivolous'; this motion isjust the tip of the iceberg. Indeed, most recently, Frank amended her complaint in an irrefutable, and unsuccessful attempt to "plead around" aKrmative defenses. 6. It should be noted, at the outset, that the Complaint has been a moving target. In (" Complaint" October 2019, she filed her original Verified Complaint Original ) in which she alleged that Stephen "expressly promiss[ed] his wife that if she would transfer ownership of the [cooperative apartment] shares, he would, in return, provide in his will that upon his death, the family" proceeds &om the [Apartment] sale would be given back to [Decedent's] (see Exhibit 2, f[2, 21-22). In other words, as alleged in the Original Complaint, the oral agreement required Stephen to make a testamentary bequest of the Apartment sales proceeds to Decedent's family. 7. As the allegations set forth above, concerning Stephen's agreement only to make a testamentary gift of the sales proceeds to Decedent's family (see id. g 2, 21-22, 41), were not made on information and belief, they "constitute[] formal judicial admission[s] which, even admitted" though subject to a subsequent, valid amendment, remain[] evidence of the facts (Bogoni v Friedlander, 197 AD2d 281, 291-292 [1st Dept 1994]). 8. Upon receiving the Original Complaint, counsel for Stephanie and David wrote to Frank's counsel, advising him, inter alia, that the same was &ivolous, inasmuch as all the claims asserted therein were barred by the applicable statutes of &auds, including that set forth in EPTL $ 13-2.1, which provides that contracts to make testamentary bequests must be in writing to be enforceable (see Penzer letter dated November 12, 2019 [Exhibit 3]). Counsel demanded that Frank withdraw the Original Complaint. ' against will Stephanie and David disagree with Frank's falsenarrativeand allegations them, and evidence — ::l" "-::='y show them to be false.However, such response isnot setforth herein as itisnot necessary on the instant motion. 3 3 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 9. Itwas only after Frank was alerted to the applicability of section 13-2.1 that she amended her pleading to allege, contrary to the allegations of the Original Complaint, that the oral agreement between Stephen and Decedent actually had two components, one of which governed the disposition of the Apartment sales proceedsprior to Stephen's death (see Ameñded Complaint [Exhibit 4] ¶ 27). 10. In the Amended Complaint, Frank now alleges that in 2008, Stephen and Decedent made an oral agreement whereby she agreed to transfer ownership of the Apartment to herself and Stephen as joint tenants with rights of survivorship and, in return, Stephen allegedly agreed to give the sales proceeds of the Apartment to members of Decedent's family if/when he sold it(id. W 2, 22-23). It isimplausible that a mere oversight or mistake caused Frank to failto allege that Stepheñ had also agreed to provide the sales proceeds to Decedent's family prior to his death. Indeed, given that Frank was aware when she filed the Original Complaint that Stephen intended to sell the Apartment (see Original Complaint [Exhibit 2] ¶ 38), itstrains credulity to believe that Frank only inadvertently failed to allege that Stephen had promised to provide the sales proceeds to Decedent's family prior to his death. 11. Frank is attempting to change the material facts underlying the claims she asserted to overcome defenses that are irrefutably fatal to her claims. This, as the First Department has made clear, is improper (see Bogoni, supra at 292 [stating that the purpose of an amended pleading "is to permit the plaintiff to amend [her] theory of recovery to comply with the facts as they unfold, not to permit the plaintiff to alter [her] representation of material facts to best suit [her] theory of recovery and thereby overcome defenses raised in opposition"]). Frank's actions reek of frivolity. 4 4 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 12. As explained briefly below, and as will be demonstrated more fully at an appropriate juncture, not only will Frank not suffer any irreparable harm absent immediate injunctive relief, there is no possibility that she will succeed on the merits of her claims, let alone a likelihood of success. The Court should therefore deny her application for a TRO. ARGUMENT 13. The extraordinary and drastic nature of preliminary injunctive remedy and the d~ger that itsmisuse may result ia severe loss or inconvenience to an innocent party require that caution" the power to issue itbe exercised with "great (Lyon v Water Commissioners of Binghantton, 228 AD 585 [3d Dept 1930]), and that itbe used sparingly (see Town of Porter v Chem Trol Pollution Servs., 60 A.D.2d 987 [4th Dept 1978]; Silvestre v De Loaiza, 12 Misc3d 492 [Sup Ct, NY County 2006]). 14. In order to demAnst ate entitlement to a preliminary injunction, a movant bears showing" the burden of making a "clear of (1) a likelihood of success on the merits; (2) iiIcparable harm in the absence of an injunction; and (3) a balance of the equities in favor of the movant (see Fulop v Sea Gate Ass'n, 214 AD2d 536 [2d Dept 1995]; see also 5'.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]). Here, there is no likelihood that Frank will succeed on any of her claims. I.ikc'-'"::" A. There is No of Success on the Merits Because All Frank's Claims are Barred bv the Statutes of Frauds 15. Even assuming the truth of the allegations of the Amended Complaint, for present around" purposes, Frank has failed in her efforts to "plead the statute of &ands defense. Even assuming, arguendo, that Frank could separate out the two components of the oral agreement as alleged in her improper Amended Complaint —she cannot —both components are unenforceable pursuant to the statutes of frauds. 5 5 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 16. The aspect of the oral agre~ —.«e.—.t allegedly requiring Stephen to bequeath the Apartment sales proceeds to Decedent's family is unenforceable pursuant to EPTL $ 13-2.1(2), which provides that "every agreement, promise or undertaking is unenforceable unless itor some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawful agent, ifsuch agre~=.~=:, promise or undertaking... is a contract to make a kind" testamentary provision of any (EPTL $ 13-2.1[2]; see also Irtre Will ofDrogin, 144 Misc 2d 747 [Sur Ct, NY County 1989] [statute of &auds barred the oral promise to nominate the petitioner as executor as that constituted a testansen~y act under EPTL g 13-2.1]). 17. The alleged oral agreement is also unenforceable pursuant to General Obligations Law ("GOL") $ 5-701(a)(1), as it could not be performed before the end of either Stephen's lifetime.~ lifetime or Decedent's This is because the agreement, as alleged, required that Stephen make a bequest in his will for the benefit of Decedent's family, and, by necessary construction, that he keep a will containing such bequest in effect until his death. Thus, Stephen cannot complete performance of the alleged oral agreement before the end of his lifetime (see Matter of Hennel, 29 NY3d 487, 493 [2017] [noting that Appellate Division had correctly held that agre~ —.«~nL notto revoke or alter a will would be within the ambit of section 5-701(a)(1)]; see also Matter of Douglas, 169 Misc 716 [Sur Ct, NY County 1938] [an agreement which was to life," run "for the remainder of [promisor's] although terminating at the instant of promisor's death, could not be performed before the end of a lifetime, and hence was barred by statute of frauds], ag'd, 256 AD 1070 [1st Dept 1939]). z lifetime" Although the section's"before the end of a provision applies to contractstheperformance ofwhich — — —i.e., cannot be co p.ctcd before the end of thelifetimeof eitherparty to thealleged oral ~ —: the party seeking to enforceitor theparty insistingon theapplication of thestatuteof &auds to nullifyit(seeMeltzer v Koenigsberg, 302 NY 523 [1951]) —oreven a nonparty tothe contract,as inMeltzer, here, performance of the alleged oralagreement cannot be cr ~'~ted before theend ofStephen's lifeand also could not be cc —.plate before the end of theDecedent's lifetime. 6 6 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 "new" - 18. The component of the alleged oral agreement Stephen's alleged agreement to provide the sales proceeds to the Decedent's family prior to his death, were he to sell the Apartment - is also unenforceable pursuant to section as it could not be 5-701(a)(1), performed before the end ofDecedent's lifetime; Stephen only became the sole owner of the Apartment, capable of selling the same, upon Decedent's death. 19. All Frank's claims - for third and unjust party beneficiary, promissory estoppel, enrichment - depend for their success on proof of the unenforceable oral and too agrecrncnt, they are barred by the statute of frauds (see Dung v Parker, 52 NY 494, 497 [1873] ["Whatever the form of the action at law may be, if the proof of a promise or contract, void by the statute [of frauds], is essential to maintain it,there can be no recovery"]; accord Kocourek v Booz Allen Hamilton Inc., 71 AD3d 511, 512 [Ist Dept 2010]). 20. Even assuming that Frank were not barred from asserting claims grounded in the alleged oral agrccment (which she is),any argument that Frank is likely to succeed on the merits of her claims to recover the Apartment sales proceeds now,i.e., prior to Stephen's death, is belied by the very document on which she relies. Frank cites Stephen's April 2013 Last Will and evidence" Testament as "corroborative written of the alleged oral agreement (see Amended 26).3 Coraplaint [Exhibit 4] ¶ But that is not what that instrument says. That will provides that, upon Stephen's death, Frank and other members of her family are to receive in equal shares "an [Apartment]" amount equal to the net proceeds of the sale of the (id.¶ 24). 3 Of that cane'* course, instrument does not a writing sufficientto satisfythestatuteof frauds as itfailstocontain the materialterms of thealleged oralagreement; itdoes not even reference it(see AlliedSheet Metal Works, Inc. v Kerby Saunders, Inc.,206 AD2d 166, I68 [1stDept 1994] ["To be considered a sufficient memorandum within the ambit of the Statuteof Frauds, a writing 'must designate theparties, identifyand describe the subjectmatter and stateallthe essentialor material terms of thecontract'"]). 7 7 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 21. Frank cannot have itboth ways. If, as she alleges, the 2013 Will constitutes evidence" - - "corroborative of the alleged oral agreement itdoes not then italso must be "corroborate" deemed to that Frank has no claim to the sales proceeds prior to Stephen's death. Frank's claim, ifshe has one (she does not), would be against Stephen's estate upon his death, if time4 whatever will is in effect at that does not satisfy the alleged agreement. 22. Frank's claims are legally insufficient as she has not pleaded the material elements of any of them, as will be demonstrated at an appr0priate juncture. But the Court need look no further than the statutes of frauds to determine that Frank has no likelihood of success. B. There is No Irreparable Iniury 23. It iswell-settled that irreparable injury means an injury for which money damages are insufficient (see Walsh v Design Concepts, Ltd., 221 AD2d 545, 455 [2d Dept 1995]). Where a "litigant can fully be recompensed by a monetary award, a preliminary injunction will issue" not (In re Rice, 105 AD3d 962, 963 [2d Dept 2013]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 Ad3d 738, 739 [2d Dept 2010] ["[e]conomic loss, which is compensable by money damages, does not constitute irreparable harm"]). 24. Frank's Amended Complaint seeks only monetary damages. By her own pleading, she can be fully compensated for her alleged injury by a monetary award. An injunction is neither warranted nor appropriate. 25. Frank does not cure this fatal flaw by arguing that she is seeking to enjoin the distribution of identifiable proceeds because, as discussed above, Frank's entitlement to the sales proceeds is sharply disputed (see Elghanayan v Iannucci, 145 AD2d 345 [1st Dept 1988] As the Court of Appeals held, "[i]tisthe essence of willthatuntil thetestator'sdeath itisambulatory and revocable" (Moultrie v Hunt, 23 NY 394, 395 [1861]; seealso American Commitics for Weizmann Instituteof Science v Dunn, v10 NY3d 82 [2008]; Leonard v Harney, 173 NY 352, 354 [1903]). 8 8 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 dispute" [injunctive relief dmJM where there was a "sharp as to the ownership of the specific property at issue]). The Appellate Division's decision in Di Stefano v PSFB Assocs., 103 AD2d 839 (2d Dept 1984), is instructive in this regard. There, the court modified the lower court's grant of injunctive relief upon holding that a preliminary injunction was not warranted despite the plaintiff s claims that proceeds from the sale of real property were to be deposited into a certain account because, should the plaintiff prevail, he would be fully compcñsated by money damages. fund" - 26. Frank's argument that she is entitled to a "specific i.e.,the actual sales proceeds, upon a sale of the Apartment, is belied by the provision of Stephen's April 2013 Will upon which she relies. That will provides that, upon Stephen's death, Frank and other members of her family are to receive in equal shares "an amount equal to the net proceeds of the sale of [Apartment]" the (Amended Complaint [Exhibit 4] ¶ 24 [emphasis added]). Giving effect to the "corroborating" allegedly document, Frank is not entitled to the sales proceeds, but only to "an to" fund." amount equal those proceeds. In other words, she has no claim to a "specific Defendants' C. The Equities Balance_in Favor 27. With respect to the final prong, the balancing of competing equities, Frank has failed to demonstrate that the harm to her without the TRO will be greater than the harm to Defendants if the injunction is granted (Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 70 AD2d 1021 [3d Dept 1979]). Indeed, the only person who will be harmed if the injunction is granted is Stephen, as he will be denied the access to and use of funds that rightfully belong to him, as well as losing money on investments and related income as the funds sita bank account. The use of these funds is critical as Stephen must now pay for his defense of this frivolous litigation in the Supreme Court. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 28. Additionally, "[i]n balancing the equities, the court should consider various factors, hands" including . . . whether [the movant] has unclean ( United for Peace & Justice v Bloomberg, 5 Misc3d 845, 849-850 [Sup Ct, NY County 2004] ["plaintiffs delay in coming to court, and its decision to renege on its [earlier] commitment, demonstrate that itlacks the clean hands that are a prerequisite for the grant of equitable relief - regardless of any alleged or even actual wrong attributable to defendants"] ; Levy v Braverman, 24 AD2d 430 [1st Dept 1965] [holding that unclean hands precludes a party from obtaining equitable relief if that party is itself guilty of [1" inequitable conduct]; Curry v First Transcapital Corp., 190 AD2d 507 Dept 1993] [holding that Plaintiff came into court with unclean hands and was therefore not entitled to equitable remedy]). 29. Here, as discussed above, Frank's hands are anything but clean. 30. Finally, as demonstrated above, Frank is not entitled to a TRO. However, if the court is inclined to grant such relief,itshould require Frank to post an undertaking to allow Stephen to recover the damages and costs he will sustain by reason thereof, if itis finally determined that Frank was not entitled to such relief (see CPLR 6312[b]; CPLR 6313[c]; 2339 Empire Mgt., LLC v 2329 Nostrand Realty, LLC, 71 AD3d 998 [2d Dept 2010] ; see also Honeywell, Inc. v Technical Bldg, 103 AD2d 433 [3d Dept 1984] ["Where, for whatever reason, an undertaking is not posted as a condition for a preliminary injunction or a temporary restraining order, the enjoined party is without a remedy unless he can prove malice"]). 10 10 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 CONCLUSION 31. For the reasons set forth herein, Defendants Stephanie Mandell and David Mandell respectfully request that the Court deny Plaintiff s request for a TRO and preliminary injunction. Dated: December 12, 2019 HILLAR A. FROMMER 11 F F\8976605.2 11 of 12 FILED: NEW YORK COUNTY CLERK 12/12/2019 08:54 AM INDEX NO. 159764/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK File No. 159764/2019 ALISON WARD FRANK, on behalf of herself and Others Similarly Situated, Plaintiffs, -against- STEPHEN A. MANDELL, STEPHANIE J. MANDELL. DAVID MANDELL. and JOYCF, MANDELL, Defendants. AFFIRMATION IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER FARRELL FRITZ, P.C. Attorneys for Defendants Stephanie A. Mandell and David Mandell 400 RXR Plaza Uniondale, NY 11556 (516) 227-0700 ===--=- == -====_---===--========-=====--- This certification, pursuant to 22 N.Y.C.R.R. Part 130-1.1-a, applies to the following papers contained within this back: 1. Affirmation in Opposition to Application for Temporary Restraining Order 2. Exhibits 1-4 Dated: New York, New York December 12, 2019 H ary A. Frommer 12 of 12