LaBoy v. Diven
Attorneys and Parties
Brief Summary
Residential real estate dispute involving alleged wrongful eviction under RPAPL 768, preliminary injunctive relief, contempt for violating a temporary restraining order, and replevin of personal property.
Denied plaintiff’s requests for a declaration of wrongful eviction under RPAPL 768 [creates a civil cause of action for wrongful or unlawful eviction], damages, a preliminary injunction restoring possession, leave to amend to add replevin, and sanctions/attorneys’ fees under 22 NYCRR 130-1.1 [authorizes costs and sanctions for frivolous conduct]; also denied a separate motion for contempt and sanctions.
Only the denial of leave to amend to add a replevin cause of action.
Leave to amend should be freely granted under CPLR 3025(b) [permits leave to amend pleadings, to be freely given absent prejudice or surprise]; the proposed replevin claim adequately alleged possession and refusal to return personal property, and defendants showed no undue delay or prejudice. All other denials were affirmed due to triable issues of abandonment, an equivocal TRO insufficient for contempt, and lack of frivolous conduct.
Background
In 2019, the parties entered a contract for sale of a Westchester residence. Plaintiff moved in pending renovations under an oral agreement; the parties dispute whether rent was owed. After the sale failed to close, Charles served a month-to-month termination notice in July 2020. Plaintiff sued in September 2020 for specific performance. In January 2021, Charles, after learning propane service was off and the home lacked heat, found the side door open, pipes frozen, and the home largely cleared of plaintiff’s belongings; he secured the property and stored remaining items. Plaintiff claimed he and his family were on vacation and defendants unlawfully changed locks. Plaintiff moved by order to show cause for relief including a declaration of wrongful eviction under RPAPL 768, restoration to possession, replevin, and sanctions; the OSC included a purported TRO directing restoration of the status quo and release of personal property. Defendants did not restore possession, and plaintiff moved for contempt.
Lower Court Decision
The Supreme Court, Westchester County, denied plaintiff’s requests for a declaration of wrongful eviction under RPAPL 768 and damages, a preliminary injunction restoring possession, leave to amend to add replevin, and sanctions/attorneys’ fees under 22 NYCRR 130-1.1, and denied a separate motion for contempt and sanctions.
Appellate Division Reversal
Modified to grant leave to amend to add a replevin claim, holding the amendment was not palpably insufficient or prejudicial and adequately pleaded replevin. Otherwise affirmed: issues of fact as to abandonment defeated the wrongful eviction claim and the likelihood of success for a restoration injunction; the TRO did not clearly and unequivocally mandate restoration and could not support contempt; sanctions were properly denied for lack of frivolous conduct.
Legal Significance
Confirms that disputed evidence of abandonment can preclude summary relief for alleged wrongful eviction and restoration injunctions; underscores that temporary restraining orders must contain an unequivocal mandate to support contempt; and reiterates the liberal amendment policy under CPLR 3025(b), allowing replevin claims to proceed where personal property is allegedly retained after a lockout. Also clarifies that sanctions under 22 NYCRR 130-1.1 require a showing of frivolous conduct.
In buyer-occupant disputes, alleged abandonment can defeat wrongful eviction and restoration remedies, but plaintiffs may still amend to pursue replevin for personal property; contempt requires a clear, unequivocal TRO, and sanctions demand proof of frivolity.