Injunctive Relief in Surrogate’s Courts: Trends & Considerations
September 22, 2014
Written by Brian Corrigan with Faith L. Carter
An excerpt from the article:
An executor commencing a turnover proceeding for the return of a Picasso allegedly gifted by the decedent shortly before his death to the respondent, and now in respondent’s possession, would be wise to seek injunctive relief safeguarding that painting pending the outcome of the proceeding.
The provisional remedy of a preliminary injunction is governed by CPLR 6301, which provides in 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 … an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual… . (emphasis added).
In addition, the movant must demonstrate three elements: (1) a likelihood of success on the merits, (2) irreparable harm absent the injunctive relief, and (3) a balance of equities in movant’s favor. Assuming the merits and equities are in the executor’s favor, a preliminary injunction will likely issue as the “subject of the action” is a unique painting and the estate stands to be irreparably injured if possession is not secured.
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