Buckley v. McAteer

210 A.D.3d 1044

179 N.Y.S.3d 329

Denise M. BUCKLEY, et al., appellants,

v.Nicholas S. MCATEER, et al., respondents.

2021–05116

Index No. 2089/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 25, 2022

November 30, 2022

Dupée & Monroe, P.C., Goshen, NY (James E. Monroe of counsel), for appellants.

Law Office of Robert S. Sunshine, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for respondent Patricia A. McAteer.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for assault and battery, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated June 24, 2021. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for a preliminary injunction.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2017, the defendant Nicolas S. McAteer (hereinafter McAteer) was arrested and charged in an 82–count indictment with sexual abuse in the first degree, criminal sexual act in the second degree, incest in the second degree, and rape in the first degree, among other charges, for conduct he repeatedly and continuously committed against the plaintiffs, his nieces, beginning when they were 12 and 13 years old. In 2018, McAteer entered a plea of guilty to two counts of rape in the first degree in full satisfaction of the indictment, and was sentenced to concurrent terms of imprisonment of 18 years, to be followed by a period of postrelease supervision of 10 years.

In 2020, the plaintiffs commenced this action, inter alia, to recover damages for assault and battery and negligent and intentional infliction of emotional distress against McAteer, among others. The plaintiffs moved, among other things, pursuant to CPLR article 63 and Executive Law § 632–a, for a preliminary injunction, restraining the sale, assignment, or transfer of any property in McAteer's name, possession, or control. In an order dated June 24, 2021, the Supreme Court, inter alia, denied that branch of the plaintiffs’ motion, concluding that the provisional remedy of a preliminary injunction was not available to the plaintiffs since they ultimately sought only monetary damages. We agree.

Under traditional equity principles prevailing for over two centuries and applied by both the courts of this state and federal courts, plaintiffs seeking only monetary damages have " ‘no rights as against the property of the defendant until [they] obtain[ ] a judgment, and until then [they have] no legal right to interfere with the defendant in the use and sale of the same’ " ( Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 545–546, 708 N.Y.S.2d 26, 729 N.E.2d 683 [emphasis omitted], quoting Campbell v. Ernest, 64 Hun 189, 192; see Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319–320, 119 S.Ct. 1961, 144 L.Ed.2d 319 ["a general creditor (one without a judgment) had no cognizable interest, either at law or in equity, in the property of his (or her) debtor, and therefore could not interfere with the debtor's use of that property"]). As the Court of Appeals has explained, this principle is embodied in CPLR 6301, which provides, in pertinent part: "A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual" (emphasis added; see Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d at 547, 708 N.Y.S.2d 26, 729 N.E.2d 683 ). Since CPLR 6301 "requires a specific ‘subject matter,’ an action for money only does not qualify" (Siegel & Connors, N.Y. Prac § 327 [6th ed June 2022 Update]).

Thus, the plaintiffs in the present action could not obtain a preliminary injunction pursuant to CPLR 6301 "to preserve assets as security for a potential monetary judgment even if the evidence show[ed] that [the defendants] intend[ed] to frustrate any judgment by making it uncollectible" ( Fatima v. Twenty Seven–Twenty Four Realty Corp., 65 A.D.3d 1079, 1079, 885 N.Y.S.2d 224 ; see Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 708 N.Y.S.2d 26, 729 N.E.2d 683 ).

We further conclude that the plaintiffs were not entitled to a preliminary injunction pursuant to Executive Law § 632–a, popularly known as "the Son–of–Sam law" (Governor's Approval Mem, N.Y. Bill Jacket, L 2001, ch 62 at 2). That statute, among other things, permits any "crime victim" to bring a civil action for money damages against, inter alia, "a person convicted of a crime of which the crime victim is a victim," within three years of "the discovery of any profits from a crime or funds of a convicted person" ( Executive Law § 632–a[3] ). The statute further requires a crime victim to notify the Office of Victim Services (hereinafter OVS) upon the filing of any such action (see id. § 632–a[4] ), and, in such case, requires OVS to, among other things, notify "all other known crime victims of the alleged existence of profits ... or funds of a convicted person" and to "avoid the wasting of the assets identified in the complaint as the newly discovered profits [of] a crime or as funds of a convicted person, in any manner consistent with subdivision six of this section" ( id. §§ 632–a[5][a], [c] ).

Subdivision six provides as follows: "The office, acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff. (a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the civil practice law and rules, shall also be available to the office in all actions under this section. (b) On a motion for a provisional remedy, the moving party shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the moving party to elect between those remedies to which it would otherwise be entitled" ( id. § 632–a[6] [emphasis added]). The statute also permits a "crime victim" to give notice to OVS prior to filing his or her action "so as to allow [OVS] to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action" ( id. § 632–a[4] ).

Contrary to the plaintiffs’ suggestion, Executive Law § 632–a does not permit a crime victim to obtain injunctive relief where the ultimate relief sought is monetary damages. Assuming that a crime victim (as opposed to OVS) can seek provisional remedies under Executive Law § 632–a, that statute expressly refers to provisional remedies "available to the plaintiff under the civil practice law and rules" and makes reference to provisional remedies that are "otherwise authorized" or "otherwise available." Such language weighs against a conclusion that Executive Law § 632–a was intended to expand provisional remedies beyond the statutory remedies already available to a crime victim under the Civil Practice Law and Rules (see New York State Crime Victims Bd. v. T.J.M. Prods.Inc., 265 A.D.2d 38, 45, 705 N.Y.S.2d 320 [1st Dept.] [the Son–of–Sam law "does not provide any new...