FILED: RICHMOND COUNTY CLERK 04/17/ :16 PM INDEX NO /2017 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 04/17/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X Index No.: /2017 ANN LOPA d/b/a ANNE LOPA REAL ESTATE, EMERGENCY Plaintiff, AFFIRMATION -against- VICTORIA CARVALHO, JOSEPH CARVALHO a/k/a JOSE CARVALHO, CASANDRA PROPERTIES, INC., and STATEN ISLAND BOARD OF REALTORS, INC., Defendants X RICHARD A. LUTHMANN, ESQ., of the LUTHMANN LAW FIRM, PLLC, an attorney admitted to practice law in the courts of the State of New York affirms as follows: 1. I am the attorney for the Plaintiff, ANN LOPA d/b/a ANNE LOPA REAL ESTATE, and I am fully familiar with the facts herein. 2. Plaintiff requests that the Court give this matter emergency status as to the temporary injunctive relief requested. 3. No prior application has been made requesting the relief requested herein. 4. Notice to my adversaries was given to comply with court rules. See EXHIBIT 1. My offices also telephoned all of the parties and/or their attorneys about today s Order to Show Cause. 5. We rely on the facts as presented in the Verified Amended Complaint (see EXHIBIT 2) and the Exhibits Attached therewith, which we as that the Court regards as an affidavit pursuant to CPLR 105(u). 1 1 of 9

2 Plaintiff Is Entitled to the Entry of a Temporary Restraining Order. 6. The grounds upon which restraints can be granted are set forth in CPLR 6301, which provides as follows: 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, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had." (Emphasis supplied.) 7. Thus, by statute a temporary restraining order should be granted where it appears that "immediate and irreparable injury, loss or damage will result". A preliminary injunction should be granted "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 plaintiff's rights respecting the subject of the action". Consequently, Plaintiff must show immediate and irreparable injury and must establish that the Defendants have threatened or are about to do, or are doing, an act in violation of their rights. 8. Irreparable injury has been defined as "that which cannot be repaired, restored, or adequately compensated in money, or where the compensation cannot be safely measured." 28 NY Jur, Injunctions, 5. A party seeking a temporary restraining order must establish that a real threat of irreparable injury exists by factual demonstration. Injury of an inconsequential nature will not qualify as irreparable injury, or justify the issuance of a temporary restraining order. 2 2 of 9

3 9. Injunctions with reference to their terms of command may be classified as "prohibitory" or "mandatory". A mandatory injunction is affirmative in character and directs the performance of an act, whereas a prohibitive injunction is preventive in character and forbids the continuance of a wrongful act, or the doing of some threatened or anticipated injury. 28 NY Jur, Injunctions, The injunctions sought in the case at bar are not "mandatory" in nature; rather, they are prohibitive -- to restrain. They are a provisional remedy sought which is temporary in nature which seeks to maintain a status quo. 11. In order to establish entitlement to a preliminary injunction, the Plaintiffs are required to demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent the grant of such preliminary injunctive relief, and (3) a balance of the equities favoring its position. Di Fabio v. Omnipoint Communications, Inc., 2009 N.Y. App. Div. LEXIS 7049, 2009 NY Slip Op 7223 (N.Y. App. Div. 2d Dep't Oct. 6, 2009); Ingenuit, Ltd. v. Harriff, 33 A.D.3d 589, 822 N.Y.S.2d 301 (N.Y. App. Div. 2d Dep't 2006); Doe v Axelrod, 73 NY2d 748, 750, 536 NYS2d 44 (1988); W.T. Grant Co. v Srogi, 52 NY2d 496, 517, 438 NYS2d 761 (1981); Manhattan Real Estate Equities Group, LLC v Pine Equity, NY, 16 AD3d 292, 791 NYS2d 418 (2005); Battenkill Veterinary Equine v Cangelosi, 1 AD3d 856, 857, 768 NYS2d 504 (2003); Bollengier v Gulati, 233 AD2d 721, 650 NYS2d 56 (1996). 12. Under the flexible test used by the courts, where a balance of equities tips rather heavily in favor of granting a preliminary injunction, Plaintiffs need only demonstrate a likelihood of irreparably injury in the absence of an injunction, and "serious questions going to the merits" rather than a "likelihood of success on the 3 3 of 9

4 merits." See Green Party v. New York State Bd. of Elections, 389 F.3d 411, 418 (2d Cir. 2004). See also Adams v. Warner Brothers Pictures Network, 2005 WL , at * 1 (E.D.N.Y. November 22, 2005). 13. On this TRO application, Plaintiff can demonstrate that it would suffer immediate and irreparable harm if the temporary injunction were not granted. ANN LOPA d/b/a ANNE LOPA REAL ESTATE has been deprived of her rights under the State and Federal Constitution in these ways: A. In making the Court s April 10, 2017, Order, the Court ignored the private contract as between Plaintiff ANN LOPA d/b/a ANNE LOPA REAL ESTATE, and the Defendant, Mrs. Carvalho, in violation of the laws of the United States and the State of New York. B. In making the Court s April 10, 2017, Order, the Court deprived the Plaintiff ANN LOPA d/b/a ANNE LOPA REAL ESTATE of due process in violation of article I, 6 of the New York Constitution and the 5th and 14th Amendments of the United States Constitution. ANN LOPA d/b/a ANNE LOPA REAL ESTATE was never a party to the matter before the Court, even though here valuable property rights were at issue. The Court unilaterally invalidated the Extension Agreement without giving ANN LOPA d/b/a ANNE LOPA REAL ESTATE notice and an opportunity to be heard. C. In making the Court s April 10, 2017, Order, the Court violated Plaintiff ANN LOPA d/b/a ANNE LOPA REAL ESTATE s rights to equal protection of the laws as guaranteed by article I, 11 of the New 4 4 of 9

5 York Constitution and the 14th Amendment of the United States Constitution. D. The Court s April 10, 2017, Order, constituted a taking of Plaintiff ANN LOPA d/b/a ANNE LOPA REAL ESTATE s property without just compensation, in violation of article I, 7 of the New York Constitution and the 5th and 14th Amendments of the United States Constitution. The Court unilaterally invalidated the Extension Agreement without giving ANN LOPA d/b/a ANNE LOPA REAL ESTATE just compensation. E. The Court s April 10, 2017, Order, violated article I, 10, clause (1) of the United States Constitution prohibiting laws impairing the obligations of contracts and bills of attainder. The Court unilaterally invalidated the Extension Agreement, thereby impairing the private contract as between ANN LOPA d/b/a ANNE LOPA REAL ESTATE and the Defendant, Mrs. Carvalho. 14. The reason why the harm here is irreparable is because of the constitutional nature of the injury as it goes to the heart of the judicial system itself. If left immediately unchecked, how can we ensure that STAR CHAMBERS are not being convened to deprive any and all individuals of their valuable property rights without notice and in direct contravention of the rights afforded under the State and Federal Constitutions. 15. Moreover, the balance of equities tips in Plaintiff s favor. While the legal standard in that the Plaintiff only need demonstrate serious questions going to the 5 5 of 9

6 merits, Plaintiffs can also demonstrate the greater standard of a likelihood of success on the merits. Accordingly Plaintiffs TRO application should be granted. Plaintiffs Will Suffer Irreparable Harm If the Injunction Is Not Granted. 16. The term "irreparable harm" means injury for which monetary damages cannot be adequate compensation. McLaughlin, Piven, Vogel, Inc. v. W. J. Nolan & Co., 114 A.D.2d 165, 498 N.Y.S.2d 146, 1986 N.Y. App. Div. LEXIS (N.Y. App. Div. 2d Dep't 1986). 17. There can be no adequate compensation if the enforcement of Order is not stayed because the very fabric of the judicial system is at stake. A strong message must be sent that a ruling that brazenly ignores a litigant s fundamental constitutional rights shall not be allowed to withstand judicial scrutiny. Plaintiffs have a Likelihood of Success on the Merits. 18. The Plaintiff is likely to succeed on all of its claims against Defendants. Indeed, Defendants cannot legitimately challenge the valid legal basis for the Court s ruling that would deprive a non-party to a proceeding their rights under a contract without notice or an opportunity to be heard. Defendants have no basis in fact or law to argue that the Court s April 10, 2017, Order is enforceable to extinguish Plaintiff s contract rights where Plaintiff was not a party to the adjudication. The Balance of the Respective Harms Favors the Entry of a Temporary Restraining Order. 19. The balance of hardships also favors granting the requested relief. For the reasons stated, Plaintiff will suffer irreparable injury if Defendants are permitted enforce the Order. Without injunctive relief, Plaintiff will have had a valuable property right 6 6 of 9

7 stripped without constitutional protections of notice and an opportunity to be heard. The very fabric of the justice system is at issue here when a STAR CHAMBER. Conversely, the injunctive relief requested would cause little to no hardship to Defendants. The temporary restraining order would rather prevent Defendants from either avoiding their contractual obligations or interfering with the contractual obligations of others. Rather, the temporary restraining order would merely prevent Defendants from arbitrarily and capriciously destroying the sanctity of the justice system and the public s perception of the same. 20. As such, Plaintiff would be irreparably harmed if this Court refuses to issue a temporary restraining order against Defendants, while Defendants would experience very little inconvenience should injunctive relief be granted. The Public Interest Will Not Be Adversely Affected. 21. Plaintiff seeks a temporary restraining order to prevent Defendants from acting in direct contravention of public policy and using the courts as an instrument to violate fundamental constitutional rights. The Defendants actions are flagrant attempts to undermine the judicial process. CONCLUSION 22. The Defendants have a high likelihood of shifting capital and business opportunities to avoid judgment enforcement. Defendants have engaged in a course of action to thwart the enforcement of Mrs. Carvalho s contract with Plaintiff and / or tortuously interfere with the same and have used the courts as an unwitting accomplice to that end. 7 7 of 9

8 23. The requested TROs should be entered to maintain the status quo between the parties as this litigation is pending. Otherwise, the Plaintiff will suffer irreparable injury to its business relationships, contracts, prospective contracts, reputation, and good will. The acts sought to be restrained violate the laws of the State of New York, and immediate and irreparable injury, loss and damage will result to Plaintiff unless this motion is granted forthwith. The restraints imposed thereby will not materially harm or cause loss to Defendants, but will only require Defendants to abide by their contractual, statutory and common law obligations. 24. The specific facts discussed in the Verified Complaint demonstrate the acts sought to be restrained violate the laws of the State of New York, and immediate and irreparable injury, loss and damage will result to Plaintiff unless this Order is granted forthwith. The restraints imposed thereby will not materially harm or cause loss to Defendants, but will only require Defendants to abide by its contractual, statutory and common law obligations. 25. Moreover, monetary compensation in the future will not adequately redress the harms caused to. For all of these reasons, plaintiff's request for a temporary restraining order. This Order should be granted, because as the specific facts discussed in the Verified Complaint and the Affirmation accompanying this Order to Show Cause demonstrate, the acts sought to be restrained violate the laws of the State of New York, and immediate and irreparable injury, loss and damage will result to Plaintiff unless this Motion is granted forthwith. This Motion should also be granted because the restraints imposed thereby will not materially harm or cause loss to 8 8 of 9

9 Defendants, but will only require Defendants to abide by its contractual, statutory and common law obligations. 26. No previous application for the relief requested herein has been made. WHEREFORE, Plaintiff respectfully requests an Order: a) Preliminarily restraining the enforcement of the April 10, 2017, Order of the Honorable Catherine Di Domenico, J.S.C., (acting); and b) Such other and further relief as the Court may deem just and / or equitable. Dated: Staten Island, New York April 17, 2017 Respectfully submitted, THE LUTHMANN LAW FIRM, PLLC /S/ RICHARD A. LUTHMANN RICHARD A. LUTHMANN, ESQ Victory Boulevard Staten Island, NY Tel: Fax: rluthmann@luthmannfirm.com Attorneys for Plaintiff 9 9 of 9