Rundquist v. Rundquist

Mario Pittoni, J.

Motion for a temporary injunction restraining the plaintiff from selling real property now occupied by the parties as a residence is denied.

The motion is supported only by an affidavit of an attorney who is associated with the attorney for the defendant. Such affidavit does not reveal personal knowledge of facts which show a meritorious cause of action in the defendant to impress a trust upon the real property. Therefore, it has no probative value (Barnet v. Horwitz, 278 App. Div. 700).

In addition, a copy of the pleadings is not submitted so that the court can ascertain the sufficiency of the counterclaim to impress a trust.

Moreover, if the counterclaim does demand judgment “ affecting the title to, or the possession, use or enjoyment of real property ” a notice of pendency of action (lis pendens) may be filed at any time before judgment (Civ. Prac. Act, § 125). If such notice is filed, any subsequent purchaser would take title subject to the possible judgment in favor of the defendant. The effect of the notice will be to prevent a sale while the lis pendens is on record. Therefore, a temporary injunction would be unnecessary. Motion denied.