PRELIMINARY STATEMENT Eli Goslin, the plaintiff, is a widower living on so- cial security. His only asset is his home, and he has no other place to live. The defendant, Herbert Skeffing- ton, is Mr. Goslin's nephew. Without stating an inten- tion to make an absolute gift, Mr. Goslin gave this nephew a deed. Since then, the nephew has assaulted Mr. Goslin and ordered him to move out. . Mr. Goslin brought this action to impose a construct tive trust on the nephew's deed, and he has simultane- ously moved for an order that would preliminarily enjoin the nephew from assaulting him, endangering his health, conveying any interest in the property, or in any way impeding Mr. Goslin'suse of his home. This memorandum i: submitted in support of that motion. QUESTION PRESENTED In an action to impose a constructive trust, should a nephew be preliminarily enjoined from assaulting his elderly uncle and from interfering with the uncle's use of his home and only asset, where the uncle gave the neph- ew a deed but never expressed an intention to make an ab- solute gift, and where the nephew has physically attacked the uncle and threatened to remove him bodily from the house? STATEMENT OF THE CASE A 74-year-old retired man living on social security found himself unable to make payments on a home mortgage that otherwise would have been paid off within three years. He has no other place to live and has resided for 24 years in this home, which is his only asset. A nephew offered to make the remaining payments. The uncle gave the nephew a deed without stating an intention to make an absolute gift. After receiving the deed, the nephew or- dered his uncle to move out. After the uncle refused, the nephew has punched and threatened him. The uncle is the plaintiff, Eli Goslin. The nephew is the defendant, Herbert Skeffington. The Family Involved Mr. Goslin is arthritic and 74 years old, and the neph- ew is 36. (Goslin Aff. 11 1-2. ) Mr. Goslin's wife and son are both dead, and his daughter lives in Asia. (Id.) Mr. Goslin and the nephew have seen each other at least monthly at family get-togethers throughout the nephew's -1- Appendix D Sample Motion Memorandum life and had attended each other's weddings. (Id. at 1 15. ) Seventeen years ago, Mr. Goslin had helped to pay the college expenses of the defendant, and prior to the events here at issue, the nephew never returned this money or reciprocated in any other way. (Id. at 1 11. ) The MortgagePRELIMINARY STATEMENT Eli Goslin, the plaintiff, is a widower living on so- cial security. His only asset is his home, and he has no other place to live. The defendant, Herbert Skeffing- ton, is Mr. Goslin's nephew. Without stating an inten- tion to make an absolute gift, Mr. Goslin gave this nephew a deed. Since then, the nephew has assaulted Mr. Goslin and ordered him to move out. . Mr. Goslin brought this action to impose a construct tive trust on the nephew's deed, and he has simultane- ously moved for an order that would preliminarily enjoin the nephew from assaulting him, endangering his health, conveying any interest in the property, or in any way impeding Mr. Goslin'suse of his home. This memorandum i: submitted in support of that motion. QUESTION PRESENTED In an action to impose a constructive trust, should a nephew be preliminarily enjoined from assaulting his elderly uncle and from interfering with the uncle's use of his home and only asset, where the uncle gave the neph- ew a deed but never expressed an intention to make an ab- solute gift, and where the nephew has physically attacked the uncle and threatened to remove him bodily from the house? STATEMENT OF THE CASE A 74-year-old retired man living on social security found himself unable to make payments on a home mortgage that otherwise would have been paid off within three years. He has no other place to live and has resided for 24 years in this home, which is his only asset. A nephew offered to make the remaining payments. The uncle gave the nephew a deed without stating an intention to make an absolute gift. After receiving the deed, the nephew or- dered his uncle to move out. After the uncle refused, the nephew has punched and threatened him. The uncle is the plaintiff, Eli Goslin. The nephew is the defendant, Herbert Skeffington. The Family Involved Mr. Goslin is arthritic and 74 years old, and the neph- ew is 36. (Goslin Aff. 11 1-2. ) Mr. Goslin's wife and son are both dead, and his daughter lives in Asia. (Id.) Mr. Goslin and the nephew have seen each other at least monthly at family get-togethers throughout the nephew's -1- Appendix D Sample Motion Memorandum life and had attended each other's weddings. (Id. at 1 15. ) Seventeen years ago, Mr. Goslin had helped to pay the college expenses of the defendant, and prior to the events here at issue, the nephew never returned this money or reciprocated in any other way. (Id. at 1 11. ) The MortgageIngs . (Id. at 1 15. ) Seventeen years ago, Mr. Goslin had helped to pay the college expenses of the defendant, and prior to the events here at issue, the nephew never returned this money or reciprocated in any other way. (Id. at 1 11. ) The Mortgage Because of a business reversal last year, Mr. Goslin lost all his income other than social security and became unable to pay his mortgage. The mortgage would have been amortized in three additional years. (Id. 12. ) To pre- vent foreclosure, the nephew finally offered to make the remainder of Mr. Goslin's mortgage payments as they be- came due. (Id. at 12-3; Skeffington Aff. 1 11. ) The payments the nephew offered to make would have to- talled $11, 500. (Skeffington Aff . 1 12. ) At the time, the house was worth approximately $95, 000, and Mr. Goslin's equity was worth approximately $83, 500. (Mendez Aff . 11 3-4. ) Although the amount Mr. Goslin had contributed to the nephew's college tuition was $3, 200, that money would have grown substantially over the intervening seventeen years if Mr. Goslin had invested it instead. Even if put into a conservative investment like United States savings bonds, it would be worth at least $8, 500 today. (Id. at 19. ) The Deed Except for this house, Mr. Goslin has no place in which to live. (Goslin Aff. at 12. ) He made out a deed to his nephew as part of what he believed to be a mutual effort in which he thought that his nephew ' 'was trying to help me keep - rather than lose - my home. "' (Id. at 13. ) At the time of the deed, Mr. Goslin expressed no intention to make, through this deed, an absolute gift of his home and only asset, and he says now that he had no such inten- tion. (Id. at 14. ) The nephew has submitted no evidence to the contrary . Although, when he made the deed, Mr. Goslin understood that the nephew would have been able to tender the mort- gage payments to the bank without having title to the house, Mr. Goslin thought a deed appropriate because he expected that "after a certain point - maybe after I'm gone -- the place would become ' ' the nephew's. (Id. at 19. ) Mr . Goslin believed that the nephew's offer to make the mortgage payments to be 'the sort of thing people in a family do for each other'' -- and in no way different from Mr. Goslin's payment of some of the nephew's college expenses (Id. at 19-10, 14. ) And Mr. Goslin says that he offered the deed in the same spirit. (Id. at 19. ) -2- : 4 . . Sample Motion Memorandum Append The Nephew's Attempts to Remove Mr . Goslin Eight months after receiving the deed, the nephew moved his family into Mr. Goslin's home without Mr. Goslin's permission, and he ordered his uncle to mov out. (Id. at 11 1-3. ) The nephew does not deny that at least twice in the last few weeks he has struck his uncle and that he has continued to order his uncle to leave, often yelling at the top of his voice. (See id. at 1 1, 3, 5-6. ) Nor does the nephew deny that he has threatened to strike Mr. Goslin again and to pack up Mr. Goslin's be- longings and leave them and Mr. Goslin on the sidewalk. (See id. ) ARGUMENT : 7 ... THE DEFENDANT SHOULD BE PRELIMINARILY ENJOINED FROM ASSAULTING MR. GOSLIN ENDANGERING HIS HEALTH, CONVEYING TITLE TOlongings and leave them and Mr. Goslin on the sidewalk. (See id. ) ARGUMENT THE DEFENDANT SHOULD BE PRELIMINARILY ENJOINED FROM ASSAULTING MR. GOSLIN, ENDANGERING HIS HEALTH, CONVEYING TITLE TO MR. GOSLIN'S HOME, OR IN ANY OTHER WAY IMPEDING MR. GOSLIN'S USE OF HIS HOME. A party should be granted a preliminary injunction if he can demonstrate (1) that he is likely to succeed on the merits; (2) that, absent a preliminary injunction, he is likely to suffer irreparable harm concerning the sub- ject of the action; and (3) that a balancing of the equi- ties favors a preliminary injunction. Town of Porter v. Chem-Trol Pollution Services, Inc., 60 A.D. 2d 987, 988, 401 N. Y . S. 2d 646, 647 (4th Dep't 1978) . The record before the court on this motion contains ample evidence of all of these elements. A. Mr . Goslin is likely to succeed on the merits in the underlying action to impress a constructive trust on the title to his home, which is held by the defendant. The facts here fit the classic pattern of abuse of fam- ily trust and confidence in which New York courts have traditionally impressed a constructive trust . Mr. Gos- lin - an elderly man in such financial difficulty that he might lose his home, his only asset - deeded it over to a trusted nephew, the defendant, whom Mr. Goslin once helped put through college. (Goslin Aff. 11 2-3, 11. ) Mr. Goslin made out the deed only after the nephew offered to prevent foreclosure by paying the $11, 500 remaining due on the mortgage. (Id. at 112-3. ) The nephew paid nothing for Mr. Goslin's equity, which was approximately $83, 500 at the time of the deed. (Id. at 117-8. ) Since -3- Appendix D Sample Motion Memorandum obtaining the deed, the nephew has assaulted and ha- rassed Mr . Goslin, trying to intimidate him into leaving the home that the nephew promised to save and in which Mr. Goslin has lived for 24 years. (Id. at 1 1, 3, 5-6. ) In these circumstances, the nephew's claim of an absolute gift is inherently incredible. A constructive trust should be imposed where the record shows ' ' ( 1) a confidential or fiduciary rela- tion, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment. '' McGrath v. Hilding, 41 N. Y . 2d 625, 629, 363 N. E. 2d 328, 330, 394 N. Y. S. 2d 603, 606 (1977) (citations omitted) . On a motion for a pre- liminary injunction, the movant is required to make only a prima facie showing and need not provide the full quan- tum of evidence that would be needed to prove the under- lying cause of action at trial. Tucker v. Toia, 54 A. D. 2d 322, 326, 388 N. Y. S. 2d 475, 478 (4th Dep't 1976) . , 1 . The defendant is Mr . Goslin's nephew, and the relationship between them is by definition cehat plaintiff would convey all of his interest in property which was not only his abode but the very means of his livelihood without at least tacit consent upon the part of the defen- dant that she would permit him to continue to live on and operate the farm. Id. at 122, 351 N. E. 2d at 724, 386 N. Y. S. 2d at 75. In family relationships, New York courts have been ex- tremely reluctant to accept, under suspect circum- stances, a transferee's claim that a transfer was an absolute gift. For example, in Sinclair v. Purdy, 235 N. Y. 245, 139 N. E. 255 (1923), a brother, who was em- ployed as a court clerk and was continually asked to pledge his property for other people's bail, deeded it over to his sister, receiving nothing in return. The Court of Appeals held that the circumstances implied a promise, and Judge Cardozo wrote for the court that [h jere was a man transferring to his sister the only property he had in the world. . . Even if we were to accept her statement that there was no distinct promise to hold it for his benefit, the exaction of such a promise, in view of the relation, might well have seemed superfluous. -5- Appendix D Sample Motion Memorandum Id. at 254, 139 N. E. at 258. Mr. Goslin was just as unlikely to have given away his home. He owned nothing else of substance. (Goslin Aff . 1 4. ) At the time of the deed, he had been retired for nine years, and his only income was from social security. (Id. at 12: ) His income had just been reduced because of the bankruptcy of a small business in which he had had an in- terest. (Id. ) The house itself was worth approximately $95, 000 at the time, and the three years of mortgage pay- ments remaining totalled $11, 500. (Id. at 117-8. ) (Even the nephew's promise to make the mortgage payments can- not be considered a payment to Goslin because, if the nephew really took clear title, the mortgage payments would benefit him and not Goslin. ) Seventeen years ago, the nephew had received $3, 200 for college tuition and had not yet reciprocated. (Id. at 1 11. ) At the time of the deed, Mr. Goslin was 74 years old, arthritic, and without any other place to live. (Id. at 11 1-2. ) On these facts, it can hardly be believed that Mr . Goslin would have made an unconditional gift of all the equity in his home. The more plausible explanation is that he and his nephew had an unexpressed understanding that the neph- ew's mortgage payments were to reciprocate Mr . Goslin's assistance with the nephew's college education. That is so even though the nephew did not need a deed in order to make Mr. Goslin's mortgage payments. Under the case law, the absence of a need for a deed is irrelevant. The farmer in Sharp, for example, seems to have given a deed for purely sentimental reasons, but the Court of Appeals considered it to be subject to a constructive trust anyway. Sharp can reasonably be interpreted to stand for the proposition that - no matter how quixotic a transferor's purpose may have been -- a promise of some kind will be implied where the parties have a family or other emotionally charged relationship and where the property transferred is the bulk of the transferor's as- sets. Although Goslin did not have the same practical need to make a transfer that the court clerk had in Sinclair, the Court of Appeals did not treat the court clerk's need as essential to its decisionhat plaintiff would convey all of his interest in property which was not only his abode but the very means of his livelihood without at least tacit consent upon the part of the defen- dant that she would permit him to continue to live on and operate the farm. Id. at 122, 351 N. E. 2d at 724, 386 N. Y. S. 2d at 75. In family relationships, New York courts have been ex- tremely reluctant to accept, under suspect circum- stances, a transferee's claim that a transfer was an absolute gift. For example, in Sinclair v. Purdy, 235 N. Y. 245, 139 N. E. 255 (1923), a brother, who was em- ployed as a court clerk and was continually asked to pledge his property for other people's bail, deeded it over to his sister, receiving nothing in return. The Court of Appeals held that the circumstances implied a promise, and Judge Cardozo wrote for the court that [h jere was a man transferring to his sister the only property he had in the world. . . Even if we were to accept her statement that there was no distinct promise to hold it for his benefit, the exaction of such a promise, in view of the relation, might well have seemed superfluous. -5- Appendix D Sample Motion Memorandum Id. at 254, 139 N. E. at 258. Mr. Goslin was just as unlikely to have given away his home. He owned nothing else of substance. (Goslin Aff . 1 4. ) At the time of the deed, he had been retired for nine years, and his only income was from social security. (Id. at 12: ) His income had just been reduced because of the bankruptcy of a small business in which he had had an in- terest. (Id. ) The house itself was worth approximately $95, 000 at the time, and the three years of mortgage pay- ments remaining totalled $11, 500. (Id. at 117-8. ) (Even the nephew's promise to make the mortgage payments can- not be considered a payment to Goslin because, if the nephew really took clear title, the mortgage payments would benefit him and not Goslin. ) Seventeen years ago, the nephew had received $3, 200 for college tuition and had not yet reciprocated. (Id. at 1 11. ) At the time of the deed, Mr. Goslin was 74 years old, arthritic, and without any other place to live. (Id. at 11 1-2. ) On these facts, it can hardly be believed that Mr . Goslin would have made an unconditional gift of all the equity in his home. The more plausible explanation is that he and his nephew had an unexpressed understanding that the neph- ew's mortgage payments were to reciprocate Mr . Goslin's assistance with the nephew's college education. That is so even though the nephew did not need a deed in order to make Mr. Goslin's mortgage payments. Under the case law, the absence of a need for a deed is irrelevant. The farmer in Sharp, for example, seems to have given a deed for purely sentimental reasons, but the Court of Appeals considered it to be subject to a constructive trust anyway. Sharp can reasonably be interpreted to stand for the proposition that - no matter how quixotic a transferor's purpose may have been -- a promise of some kind will be implied where the parties have a family or other emotionally charged relationship and where the property transferred is the bulk of the transferor's as- sets. Although Goslin did not have the same practical need to make a transfer that the court clerk had in Sinclair, the Court of Appeals did not treat the court clerk's need as essential to its decisiona promise of some kind will be implied where the parties have a family or other emotionally charged relationship and where the property transferred is the bulk of the transferor's as- sets. Although Goslin did not have the same practical need to make a transfer that the court clerk had in Sinclair, the Court of Appeals did not treat the court clerk's need as essential to its decision. 3. The nephew himself contends that the deed was a transfer . As to the third element of the test for a constructive trust - a transfer in reliance on the promise - the nephew himself contends that the deed was a transfer. For the reasons set out above, the record shows that Mr . Goslin granted the deed in reliance on the nephew's promise. -6- Sample Motion Memorandum Appendix D 4 . Without a constructive trust, the nephew will be unjustly enriched. The final element of the test for a constructive trust has been described variously as ' unjust enrichment un- der cover of the relation of confidence, ' Sinclair, 235 N. Y. at 253, 139 N. E. at 258; as a situation where 'prop- erty has been acquired in such circumstances that the holder of the legal title may not in good conscience re- tain the beneficial interest, '' Sharp, 40 N. Y. 2d at 121, 351 N. E. 2d at 723, 386 N. Y. S. 2d at 74; and as circum- stances where "discernible promises, made in a confi- dential relationship, have been broken or repudiated, and the trusted one will be unjustly enriched by reason of the breaches, '' Tebin, 19 A. D. 2d at 280, 241 N. Y. S. 2d at 634. The courts held in Sharp and in Tebin that a plaintiff need not prove that the party who accepted the transfer did so with a fraudulent intent. "A construct tive trust may be imposed even though the transferee fully intended to perform his promise at the time of the conveyance . ' ' Ferrano v. Stephanelli, 7 A. D. 2d 420, 424, 183 N. Y. S. 2d 707, 711 (1st Dep't 1959) . It is enough to show that the entrusted party has breached the promise on which the grantor relied. Here, the nephew took a deed upon promising to make three years of mortgage payments and without paying any- thing for Mr. Goslin's equity of approximately $83, 500. (Goslin Aff. 11 2-3, 7-8. ) The nephew took the deed from an elderly man who desperately needed to stay in his own home because he had no other place to go - and continues now to have no other place to go. (Id. at 11 1-2. ) The nephew took the deed at a time when Mr. Goslin had made mortgage payments for 24 years and needed to do so for only three more years to be able to live there for the rest of his life without making any mortgage payments at all. (Id. at 1 1. ) And the nephew's offer to make mortgage payments is most reasonably seen as reciprocation for Mr. Goslin's help in putting the nephew through college. Here, the nephew has tried to pervert into a windfall his assumption of a family obligation. B. Without an injunction, Mr. Goslin is threatened with irreparable harm in the form of assault and the loss of his own home . A movant is threatened with irreparable harm when the opposing party creates a risk of injury that a final judgment could not sufficiently remedy . Schlosser v. United Presbyterian Home, 56 A. D. 2d 615, 615, 391 N. Y. S. 2d 880 881 (2d Danit 1077 ) D.-8- ample Motion Memorandum Appendix D CONCLUSION Therefore, this court should grant an order prelimi- narily enjoining the defendant nephew from assaulting Mr. Goslin, endangering his health, conveying any in- terest in the property, or in any way impeding Mr . Gos- lin's use of his home. Mr. Goslin is likely to succeed on the merits of the underlying action for a constructive trust. He is threatened with irreparable harm in the form of violence and the loss of his only available place to live. And the defendant would suffer no harm if enjoined. Respectfully Submitted, Petra Diaz, Esq. Attorney for Plaintiff 32 Fontanka Street Bedford Falls, NY 14218 (914) 555-1111 -9- 421