Upon the foregoing papers, plaintiff's application by order to show cause dated May 21, 2007 to enjoin defendant pendente lite from (1) maintaining a summary eviction proceeding against him, and (2) selling the premises located at 35 Ellicott Place, Staten Island, New York, is granted in accordance with the following.

Plaintiff, the prior owner of 35 Ellicott Place, claims that he conveyed title to his aunt (the defendant) in September 2004 when he experienced severe financial setbacks after suffering a stroke which left him unable to work. In the first of two written agreements relative to this transaction, the parties agreed that the transfer of title to defendant was "without consideration and intended solely for the benefit of [plaintiff] John Paul Mouner." Pursuant to that agreement (dated September 2, 2004), defendant agreed to obtain a mortgage on the premises in the approximate amount of $337,500.00, the proceeds of which were to be applied towards payment of the outstanding mortgage ($140,000.00), closing costs, the satisfaction of a judgment against John Paul Mouner ($70,000.00), and the payment of an outstanding obligation to defendant ($70,000.00). The balance of the proceeds were to be paid to plaintiff for his own use. The agreement [*2]further provided that plaintiff would continue to occupy the residence and would be solely responsible for the payment of all mortgage and other carrying charges, including real estate taxes, insurance, water, sewer and utilities. Finally, defendant agreed to reconvey title to plaintiff upon his request and his satisfaction of the underlying mortgage.

Thereafter, on or about May 6, 2005, plaintiff and defendant entered into a second written agreement which acknowledged the parties' compliance with the terms of the first agreement and further provided, inter alia, that defendant would (1) obtain an equity loan on the subject property for the benefit of John Paul Mouner and (2) execute a Last Will and Testament naming John Paul Mouner as the devisee of her interest in 35 Ellicott Place. In return, plaintiff expressly agreed that upon his default in reimbursing defendant "by the first day of each month" for "all payments made by her in connection with the mortgage, taxes and insurance," he would "join [defendant] Marie Boyer in offering the property for sale." The parties also agreed that plaintiff would receive the net proceeds of any such sale after the satisfaction of all outstanding loans and the payment of any sums due to Maria Boyer under either agreement.

Insofar as it appears on the papers before the Court, in or about April of 2007, defendant commenced a licensee holdover proceeding (Index No. L&T 51217/07) against plaintiff in Civil Court, Richmond County. Although it is alleged that plaintiff has moved to dismiss that proceeding, the present status of the matter has not been revealed to this Court. In any event, plaintiff subsequently commenced this action in Supreme Court, inter alia, to impose a constructive trust and for breach of contract. In support of his application to enjoin defendant from evicting him and selling the subject premises during the pendency of this action, plaintiff claims that if the parties' explicit and implicit promises are not enforced, he will be irreparably injured and defendant will be unjustly enriched. In particular, plaintiff claims that defendant intends to breach the agreements by evicting him and his family and retaining the net proceeds from the sale of the premises. He also maintains that his aunt has rejected his proposal that the premises be sold to his wife and daughter, both of whom are gainfully employed. According to plaintiff, he has already paid defendant at least $54,000.00 pursuant to their agreements. The arrears, if any, on the mortgage and equity loan are said to total no more than $8,700.00.

In opposition, defendant contends that (1) she alone has paid the monthly mortgage, real estate taxes and insurance since May of 2005, as well as making the all of the equity loan payments; (2) she was caused to expend an additional $73,000.00 through June of 2007; (3) she has received only $18,900.00 as reimbursement from the plaintiff; and (4) she has been compelled to utilize her life savings and retirement funds to maintain her good credit and prevent the premises from being foreclosed.

It is well settled that in order to be entitled to preliminary injunctive relief, the movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6301; W.T. Grant Co. v Srogi, 52 NY2d 496, 517; Hightower v Reid, 5 AD3d 440). Moreover, such relief constitutes "a drastic remedy [*3]which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant"(Peterson v Corbin, 275 AD2d 35, 37 quoting Nalitt v City of New York, 138 AD2d 580, 581 [internal quotation marks omitted]).

Here, it appears that plaintiff's eviction from the subject premises would be in contravention of the unequivocal terms of the written agreements, i.e., that "John Paul Mouner [would] continue to reside in the residence" and that, in the event of his default, "he [would] join Marie Boyer in offering the property for sale". In the Court's opinion, such writings are sufficient to demonstrate for present purposes plaintiff's likelihood of success on the merits, notwithstanding the sharply disputed issues of reimbursement and arrears. In this regard, "the mere fact that there indeed may be questions of fact for trial does not preclude a court from exercising its discretion in granting an injunction" (Egan v New York Care Plus Ins. Co., 266 AD2d 600, 601). Stated otherwise, "even when the facts are in dispute, the nisi prius court can find that a plaintiff has a likelihood of success on the merits, from the evidence presented, though such evidence may not be conclusive'" (Sau Thi Ma v Xuan T. Lien, 198 AD2d 186, 187; see Ying Fung Moy v Hohi Umeki, 10 AD3d 604,605). Thus, in view of defendant's concession that "the house itself is not at issue" and that plaintiff's right, e.g., to remain in the premises, has yet to be determined, a preliminary injunction preserving the status quo during the pendency of this action represents the best balance of the parties' interests, while eliminating any possibility of irreparable injury.

However, in fairness to defendant, the injunctive relief shall be conditioned upon (1) plaintiff's assumption of the monthly mortgage and equity loan payments, including real estate taxes and property insurance, as hereafter provided and (2) the giving of an undertaking in the amount of $25,000.00 (see CPLR 6312[b]; Ying Fung Moy v Hohi Umeki, 10 AD3d at 605; Hightower v Reid, 5 AD3d at 441).

Accordingly, it is

ORDERED, that plaintiff's application for a preliminary injunction enjoining defendant from maintaining or continuing any summary eviction proceeding against him, and/or selling the premises known as 35 Ellicott Place, Staten Island, New York, during the pendency of this action is granted on condition that plaintiff assume the

payment of the monthly mortgage and equity loan, including real estate taxes and property insurance, effective on the first day of the month next following the service upon him of a copy of this Decision and Order with notice of entry; and it is further

ORDERED, that an undertaking be given in the sum of $25,000.00 conditioned that the plaintiff, if it is finally determined that he was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of this injunction.

E N T E R,

Dated: August 21, 2007S/_________________________ [*4]

Robert J. Gigante, J.S.C.