Plaintiff Bebeka Sofolarides, a/k/a Helen Sofolarides, married John Sofolarides on June 14, 1986. It was a third marriage for Helen and a second marriage for John. The day prior to the marriage, June 13, 1986, the couple entered into a Pre-Nuptial Agreement which in relevant part, provided for a life estate on the wife's behalf. As the wife was moving into the husband's house, [*2]the parties agreed to create a life estate for the wife for a period of five years from the husband's death for the premises known as 43-35 216th Street, Bayside, New York. "This life estate shall be to the extent of the two six room apartments of said premises and the wife shall have exclusive use and occupancy of said apartments and the ability to rent same."

On July 25, 2003, after the marriage, the parties signed a second agreement with terms that modified the pre-nuptial agreement. Paragraph "C" of the modification is entitled "Life Estate on the Wife's Behalf." It states that the husband and wife agree to create a life estate for the benefit of the wife in the subject premises. The life estate shall be to the extent of the first floor and six room apartment of said premises as well as sole access to the washer/dryer area of the basement and sole use of the cedar closet therein and the wife shall have exclusive use and occupancy of said apartment and washer/dryer area of the basement as long as she makes it her primary residence."

The husband, John Sofolarides, passed away on February 25, 2012. John's son, Paul Sofolarides, is the executor of John's estate and the defendant herein. Helen's son, Walter Oradesky, who obtained power of attorney from his mother on May 4, 2012, alleges in an affidavit dated March 1, 2013, that in April 2012 his mother was diagnosed with moderate dementia. In October 2012, as his mother could no longer live at home by herself, her son chose to place his mother at The Bristol, an assisted living facility in Westbury, Long Island. Walter Oradesky states that his plan is to eventually return his mother back home to her apartment and obtain full-time live-in care.

On January 3, 2013, Mr. Oradesky received a letter from the husband's executor requesting that his mother's furniture and belongings be removed from her apartment since she had vacated the house, terminated her phone service, Con Ed service, internet and mail delivery and was living at The Bristol.

In response, Mr. Oradesky replied that although his mother was living at the Bristol, her primary residence was still the apartment in her house to which she was given a life estate by agreement of the parties. He stated that his intent is to return his mother to her apartment once her condition progresses to where continuing to reside at the Bristol is no longer feasible.

On February 7, 2013, the plaintiff commenced an action by filing a summons and complaint seeking a judgment declaring that (1)plaintiff's life estate interest in the apartment is not conditioned upon plaintiff maintaining the apartment as her primary residence; (2)the clause in the agreement which conditions plaintiff's life estate interest in the apartment upon her making the apartment her primary residence is contrary to law; (3)plaintiff as a life tenant of the apartment can properly reside for a period of time at an assisted living facility without affecting her rights title and interest in her life estate to the apartment; (4) plaintiff can reside at an assisted living facility for a period of time and still maintain the apartment as her primary residence; (5)defendant has no legal right to change the locks to the apartment and effectively lock the plaintiff out and remove her possessions from the subject premises; and (6)defendant must [*3]restore plaintiff to possession of the apartment.

Plaintiff now moves for an order staying defendant, pending the trial in this action, from removing any of plaintiff's possessions from her first floor apartment at 43-25 216th Street, Bayside, New York and staying defendant from taking any action to remove, evict and/or lockout the plaintiff from the subject apartment pending the trial in this action. Counsel argues that the parties agreement dated July 25, 2003 provides the plaintiff with a life estate with the benefits of ownership. He argues that the life estate is not merely a tenancy conditioned upon it being used as her primary residence. It is plaintiff's contention that the fact that she is now temporarily residing at The Bristol nursing home does not effect her right to have a continued life estate in the premises. In other words, plaintiff contends that as the holder of a life estate, she cannot have that estate conditioned upon the use of the apartment as her primary residence. Further, plaintiff argues that even if it is conditioned upon her primary residence, the fact that she is temporarily residing at The Bristol does not negate the fact that the apartment is still her primary residence as it is possible that she could return there on a moment's notice.

In opposition to the motion, Paul Sofolarides, the executor of his father's estate, asserts that under the terms of the agreement of July 25, 2003, the plaintiff's life estate in the apartment exists only as long as she makes it her primary residence. He states that in May 2012 he hired a contractor to put up a door behind the washer dryer area of the basement to prevent further access to the non life estate areas of the house. He states that he was informed in October 2012 by Walter Oradesky that Helen had moved out. He stated that when she moved out she disconnected her internet service, cable TV service and electric service. He states that her mail delivery to the house was discontinued as well. Paul also states that in November 2012 he discovered that there was significant damage to the two bedrooms where Helen had resided and he therefore decided to relocate her furniture to the garage to repair the damage. Paul also stated that he had the locks changed on the house when he saw Walter removing mail from the house. He states that other than a broken microwave, he has not discarded any personal items from the apartment. He stated that he also visited Helen at The Bristol and at which time she informed him that she liked her new home and he should do whatever he wanted with her personal effects in the apartment. He states that he believed that Helen's primary residence is now The Bristol and not the apartment in his house. He also believes that she applied for Veteran's benefits to assist with the cost of residing at the Bristol and as such she has represented that The Bristol is now her primary residence.

Defendant's counsel, James F. Scaffidi, Esq., submits an affirmation in which he contends that the plaintiff, Walter Oradesky, lacks standing to sue the defendant since Helen was diagnosed with dementia prior to the date the power of attorney was signed and as such the power of attorney is invalid. Defendant seeks leave to file an Article 81 petition to determine whether Helen lacked capacity in May 2012 to execute the power of attorney. Counsel claims that at the time Helen executed the power of attorney on behalf of plaintiff she did not possess the requisite ability to comprehend the nature and consequences of the act of executing the power of attorney. [*4]

Defendant also argues that Helen's life estate in the apartment terminated once she stopped using the apartment as her primary residence. Counsel contends that pursuant to the agreement it was the intention of the parties to create a life estate for Helen for "as long as the apartment was used as her primary residence." Counsel asserts that when Helen moved to assisted living she changed the place of her primary residence as she no longer has an ongoing, substantial physical nexus with the subject premises for actual living purposes. Counsel asserts that because of Helen's present mental condition he believes that Walter's representation that Helen will return to the apartment is speculative and therefore ownership in the apartment should revert back to John Sofolarides.

In order to demonstrate entitlement to a preliminary injunction, the movant must establish (1) a probability of success on the merits, (2) the danger of irreparable harm in the absence of injunctive relief, and (3) a balance of the equities in favor of the movant (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2d Dept. 2008]; Montauk-Star Is. Realty Group v Deep Sea Yacht & Racquet Club, 111 AD2d 909 [2d Dept. 1985]). "A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009]; Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051 [2d Dept. 2009]; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [2d Dept. 2006]).

Upon review and consideration of the plaintiff's motion, defendant's affirmation in opposition and the plaintiff's reply thereto, this court finds that the plaintiff has shown a probability of success on the merits in that the courts have held that being domiciled in a nursing home does not create a forfeiture of one's primary residence (see Metroka v Andrews, 2006 NY Misc. LEXIS 9320 [Civil Court, NY Co. 2006][New York courts have long understood that a senior citizen's admission to nursing home, health care center, rehabilitation facility or the like, even for a relatively substantial period of time is not a life sentence and does not automatically mean they have forfeited their primary residence]; Soybel v Gruber, 136 Misc 2d 430 (Civ Ct. NY Co.1987][the primary residence law was not intended and should not apply to a senior citizen who is confined in a geriatric facility or nursing home and has no intention of abandoning her rent-regulated apartment]; 65 Central Park West, Inc. V Greenwald, 127 Misc 2d 547(Civ Ct. NY County 1985]; also see Katz v Gelman, 177 Misc 2d 83 [1st Dept. App Term, 1998]).

In addition, the threat of the plaintiff's loss of a valuable, long-term residence in the house in the absence of an injunction satisfies the irreparable harm requirement for a preliminary injunction (see Chrysler Realty Corp. v Urban Inv. Corp., 100 AD2d 921 [2d Dept. 1984]). A balance of the equities likewise favors the granting of preliminary injunctive relief to maintain the status quo pending the resolution of the action (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009]; S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642 [2d Dept. 2008]; Jiggetts v Perales, 202 AD2d 341[1st Dept. 1994]). The plaintiff has sufficiently shown that the loss of her primary residence will be far more burdensome to her than any harm likely to be caused to the defendant by the imposition of a restraining order, and the defendant has failed to demonstrate any prejudice as a result of the preliminary injunction. [*5]

The affirmative relief requested by the defendant in its affirmation in opposition is denied without prejudice for failure to seek such relief by cross-motion.

Accordingly, for all of the above-stated reasons it is hereby

ORDERED, that pending the trial in this action, the defendant, his agents, servants and employees, and all persons acting on his behalf, are stayed, enjoined and restrained from removing any of plaintiff's possessions from her first floor-6 room- apartment at 43-35 216th Street, Bayside, New York as well as the cedar closet located in the basement of the house; and it is further,

ORDERED, that the plaintiff shall be restored to possession of the apartment and to the cedar closet in the basement as well as to the washer/dryer area of the basement in the house; and it is further

ORDERED, that the defendant, his agents, servants and employees and all persons acting on his behalf are stayed, enjoined and restrained from taking any action whatsoever to remove, evict, and/or lockout plaintiff from possession of the apartment, the cedar closet in the basement of the house as well as the washer/dryer area of the basement of the house, and it is further,

ORDERED, that the plaintiff's son, Walter Oradesky, shall be provided with keys to the apartment, and it is further,

ORDERED, that the parties are directed to expeditiously complete discovery in accordance with the dates contained in the preliminary conference order signed by this court on March 6, 2013.

Any applications for an order of contempt based upon a violation of this order shall be made by separate order to show cause.

Dated: Long Island City, NY

May 29, 2013

______________________________

ROBERT J. McDONALD

J.S.C.