LaBoy v. Diven

Summary

The Appellate Division, Second Department modified an order in an action involving specific performance of a real-property sale contract, alleged wrongful eviction, and personal property allegedly retained by the defendants. The court upheld the denial of relief concerning wrongful eviction, possession, contempt, attorneys' fees, and sanctions because factual issues existed regarding abandonment and the temporary restraining order lacked an unequivocal mandate. It held that the plaintiff should be permitted to amend the complaint to add a replevin cause of action.

Holdings

1. The plaintiff was not entitled to a declaration of wrongful eviction or related damages at the motion stage because the defendants raised an issue of fact concerning whether the plaintiff had abandoned the property.
2. The plaintiff was not entitled to a preliminary injunction restoring possession because factual issues concerning abandonment undermined his likelihood of success on the merits of the wrongful-eviction claim.
3. Contempt relief was properly denied because the purported temporary restraining order did not clearly express an unequivocal mandate.
4. The Supreme Court should have granted the plaintiff leave to amend the complaint to add a cause of action for replevin.
5. The plaintiff was not entitled to attorneys' fees or sanctions because he failed to establish that the defendants' or their counsel's conduct was frivolous.

Questions Presented

1. Whether the plaintiff established that he was wrongfully evicted under RPAPL 768 and was entitled to damages.
2. Whether the plaintiff was entitled to a preliminary injunction restoring him to possession.
3. Whether the defendants could be held in contempt for violating the purported temporary restraining order.
4. Whether the plaintiff should be granted leave to amend the complaint to add a cause of action for replevin.
5. Whether the plaintiff established that the defendants' or their counsel's conduct was frivolous and warranted attorneys' fees or sanctions under 22 NYCRR 130-1.1.

Disposition

affirmed