Supreme Court, Albany County, April 3, 2023

Letitia James, Attorney General, Albany (William A. Scott of counsel), for petitioner.

Ashleigh Wade, respondent pro se.

The New York State Office of Victim Services (OVS) wants an injunction freezing respondent Ashleigh Wade's (Wade) inmate bank account. Now Wade is a notorious murderer and OVS wants to ensure that the money in her inmate account is not dissipated before the family of Wade's murder victim (victim) can sue her. OVS's request arises under Executive Law § 632-a (familiarly known as the "Son of Sam Law"). The statute permits OVS, via a special proceeding, to seek a preliminary injunction apart from and prior to a crime victim filing a lawsuit against the perpetrator (Matter of New York State Crime Victims Bd. v Harris, 68 AD3d 1269, 1270 [3d Dept 2009]). Thus, OVS seeks to enjoin Wade from accessing her money until the victim files her anticipated lawsuit (Executive Law § 632-a [5] [c]; [6] [a]).

It is axiomatic that "[p]reliminary injunctive relief is a drastic remedy [that] is not routinely granted" (Eastview Mall, LLC v Grace Holmes, Inc., 182 AD3d 1057, 1058 [4th Dept 2020] [brackets in original]). Further, "[t]he decision to grant or deny a request for a preliminary injunction is committed to the sound discretion of the trial court" (Biles v Whisher, 160 AD3d [*2]1159, 1160 [3d Dept 2018]). Indeed, "[p]erhaps the most instructive point about the preliminary injunction is that its granting is discretionary with the court" (Siegel, New York Practice § 328 at 599 [6th ed 2018]). Moreover, a "preliminary injunction[ ] [that] prevent[s] [a person] from taking actions that they are otherwise legally entitled to take . . . should be issued cautiously and in accordance with appropriate procedural safeguards" (Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 79 NY2d 236, 241 [1992]). Discretion, caution, and safeguards do not apply to preliminary injunctions in Son of Sam cases, or so OVS argues.

OVS offers a stark contrary proposition to traditional equitable jurisprudence. It says that under the Son of Sam Law the{**79 Misc 3d at 256} court lacks any ability to evaluate the evidence before it. Rather, a victim's form affidavit, and a form affidavit alone, mandates the court to issue the injunction. Moreover, OVS asserts that the court has no discretion over the duration of the injunction—it must issue an injunction for the entire length of the statute of limitations. In other words, when OVS seeks an injunction under the Son of Sam Law, the court's role is reduced to a mere ministerial function—that is, simply making sure OVS has attached the correct paperwork to its pleadings.

Indeed, at the hearing on the preliminary injunction, OVS was quite specific that the Son of Sam Law divests the court of any discretion:

"The Court: What degree of confidence do I have to determine that [the victim is] going to file suit?

"OVS Counsel ('OVS'): I don't think there's anything required . . . other than the sworn statement of the crime victim . . . saying that they have such an intent; . . . that is all that's required.

"The Court: So, just to make sure I understand your position, . . . a form affidavit where [a victim] circles the intent . . . box . . . that is in itself sufficient to freeze [an inmate's] fund[s] for up to ten years . . . .^[FN1]

"OVS: Yes.

"The Court: Your position is the court has . . . no discretion in issuing the injunction.

"OVS: [T]he legislature has essentially said that there isn't a lot of discretion. If these essential factors are present, there's a crime victim, there's a crime of particular nature and there is monies of an incarcerated individual, then the injunction should ensue.

"The Court: So, this is equitable relief with no discretion by the courts.

"OVS: In some respects, yes.{**79 Misc 3d at 257}

"The Court: The court just . . . checks the boxes and issues the order without any [discretion] . . . I just want to make sure of your argument.

"OVS: Okay." (Preliminary injunction hearing, Mar. 2, 2023, at 14-15, 10-12.)

OVS offers no reported case to support its thesis.^[FN2] Instead, OVS pegs its argument to the statute's overarching purpose, which requires OVS to protect assets for crime victims. It is true that OVS is "empowered to . . . apply[ ] for provisional remedies that would ordinarily be unavailable to an individual suing for money damages" (Waldman v State of New York, 163 AD3d 1114, 1115 [3d Dept 2018]). From this premise, OVS postulates that since the Legislature granted it such extraordinary powers to help crime victims, it is essentially OVS's province to authorize the injunction. Accordingly, once OVS secures a victim's signature on a form affidavit, then a court is forced to freeze an inmate's funds until the statute of limitations expires. This process, OVS says, reflects the Legislature's intent.

There is a whiff of virtue in OVS's contention; a court should always animate the intention of a legislature. However, the starting point for discerning legislative intent is the language of the statute (Yatauro v Mangano, 17 NY3d 420, 426 [2011]). The words of the statute and what those words convey, in context, is what the statute means. Thus, where a statute is unambiguous, the courts must give effect to its plain meaning; to do otherwise would be a judicial usurpation of legislative power. Indeed, the Court of Appeals has cautioned that courts may only look behind the words of a statute when the law itself is ambiguous (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480 [1978]).

So, the court will examine the Son of Sam Law's text, which is the starting point for statutory interpretation (Matter of Lisa T. v King E.T., 30 NY3d 548, 552 [2017]). Executive Law § 632-a (6) (a) provides, in pertinent part, that "[OVS] . . . ha[s] the {**79 Misc 3d at 258}right to apply for . . . [t]he provisional remed[y] of . . . injunction, . . . under the civil practice law and rules ." The text lacks any ambiguity; it is immaculately clear. The Legislature meant what it said—OVS may apply for an injunction. Allowing OVS to seek an injunction is not the same thing as saying that the court must issue one. Indeed, the plain statutory "language weighs against a conclusion that Executive Law § 632-a was intended to expand provisional remedies beyond . . . the Civil Practice Law and Rules" (Buckley v McAteer, 210 AD3d 1044, 1047 [2d Dept 2022]). This seems correct. Therefore, CPLR 6301's traditional preliminary injunction principles control OVS's motion.

At this juncture, the court feels compelled to explain why it breaks from OVS's interpretation. While it is extremely tempting for the court—in the name of helping crime victims—to abdicate its role, ignore the rigors of the law and in rote fashion issue a multi-year injunction based upon a nondescript affidavit, the court must resist. It is not because the court is unsympathetic towards the victim; it is. Nor does the court possess some misplaced empathy for Wade; it has not a milligram of compassion given her fantastically wicked crime. But the law should neither be twisted nor conformed based upon the parties' virtues or identities—the law [*3]must mean the same thing and be applied equally in every case, even if the case involves a most despicable murderer. The court must be blind to the parties and maintain an unbreakable fealty to the law. So, consequently, the court must eternally refuse to sacrifice equality under the law for an easy expediency to assist the party that it perceives as the more deserving.

Returning to the injunction standard. CPLR 6301 offers a familiar tripartite test: The party seeking a preliminary injunction must demonstrate (1) a probability of success on the merits (the merits prong), (2) a danger of irreparable injury in the absence of an injunction (the irreparable injury prong) and (3) a balance of equities in its favor (the equity prong) (Camp Bearberry, LLC v Khanna, 212 AD3d 897, 898 [3d Dept 2023]).

While the traditional test for determining the probability of success under the merits prong is quite familiar, this case arises in an altogether nontraditional setting. This special proceeding is an oddity. Normally, a preliminary injunction is requested within the context of a pending proceeding, thus allowing examination of the action's merits to determine the movant's likelihood of ultimate success. Here, there are no{**79 Misc 3d at 259} merits of a claim to adjudicate—because a suit has yet to be filed and may never be (see Romero v Pataki, 2006 WL 842177, *7, 2006 US Dist LEXIS 14276, *19 [SD NY, Mar. 31, 2006, No. 04 Civ 4294 (WHP)] [noting that "(the Son of Sam Law) does not obligate a crime victim to commence a civil action after giving (OVS) notice of her intention to do so"]).

So, without actual merits of a pending case to review, the court must determine the corresponding substitute in a Son of Sam proceeding. There is no precedent on this issue. An analogy, therefore, is useful. Since the merits prong assesses a lawsuit's likelihood of achieving its ultimate objective, it should, in the Son of Sam context, correspond directly to OVS's ultimate objective. OVS seeks to freeze respondent's funds so that the victim can bring an action. Consequently, OVS's likelihood of success directly translates into the likelihood that the victim will file a lawsuit.

However, if OVS succeeds in freezing respondent's funds until the victim files a suit, OVS will have been granted all the relief that it wants. There will be nothing more to decide and the case will become dormant. Such a grand request saddles OVS with a high hurdle to clear. The evidentiary showing for a success on the merits prong must be convincing. The evidentiary showing must be all the more convincing when, as here, the movant wants the ultimate relief that it seeks. Indeed, "[a]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which [it] would be entitled in a final judgment" (Berman v TRG Waterfront Lender, LLC, 181 AD3d 783, 784-785 [2d Dept 2020]).

That opens the question of what evidentiary standard should govern the merits prong. In other words, what quantum of proof is required to convince a court that a victim will file a case. Any standard must recognize that the preliminary injunction hearing represents the single opportunity for a judge to determine the likelihood that the victim will move from signing an affidavit to commencing a suit.

In light of this, the court holds that the evidence that the victim will file suit must be clear and convincing fortified by "a strong showing in affidavits and other proof supplying evidentiary detail" (cf. Siegel, New York Practice § 328 at 598 [6th ed 2018]). So, while a form affidavit where the victim asserts that she will file an action immediately may suffice to meet OVS's burden of production, such a conclusory statement may not{**79 Misc 3d at 260} suffice to meet its burden of persuasion. In contrast, the victim's testimony that references concrete plans to bring a proceeding enhances the weight of the evidence, as a court exercises its discretion in granting the extraordinary remedy sought by OVS.

Turning to the evidence submitted. Originally, OVS had the victim sign a form affidavit. This prefabricated affidavit is scarce on specificity and facts from which the court could draw inferences to measure the victim's determination to file a suit. Such light proof lacks the force of clear and convincing evidence.

Smartly, OVS supplemented its initial submission with a detailed affidavit from the victim. In the supplemental affidavit, the victim relates the suffering that Wade has caused her and her family to endure. Despite Wade's heinous crime, the victim has forgiven Wade and prays for her. This inspirational act does not mean that the victim is forsaking justice. To the contrary, she has sought out counsel to render assistance in a civil action. The particulars in the victim's affidavit clearly and convincingly demonstrate her determination to sue. OVS, therefore, has satisfied the merits prong.

The second prong, the irreparable harm prong, requires a showing that the movant will suffer irreparable harm absent the injunction. Normally, irreparable harm means a harm that cannot be repaired by money (Di Fabio v Omnipoint Communications, Inc., 66 AD3d 635, 636-637 [2d Dept 2009]). Of course, the victim's future lawsuit will be requesting money and that would disqualify her from receiving an injunction in that litigation. "Executive Law § 632-a does not permit a crime victim to obtain injunctive relief where the ultimate relief sought is monetary damages" (Buckley, 210 AD3d at 1046-1047). However, this case is not exclusively about the victim. It is not just the victim's monetary recovery at stake. Rather, at stake is OVS's statutory duty to ensure a criminal's assets remain in place for a crime victim. Such a conceptual duty, if harmed, cannot be measured in economic terms and thus cannot be repaired with money. Therefore, a threat to OVS's mandate constitutes an irreparable harm.

However, the potential for irreparable harm does not satisfy the irreparable injury prong. Rather, the irreparable injury prong requires occurring acts or acts that are threatened and fairly certain to occur (Eldre Components v Kliman, 47 Misc 2d 463, 464 [Sup Ct, Monroe County 1965]). Apprehensions will{**79 Misc 3d at 261} neither qualify as irreparable injury nor justify the issuance of a preliminary injunction. Thus, it is OVS's burden to establish that respondent Wade "threatens or is about to do . . . an act in violation of [OVS's] rights" (CPLR 6301).

So, the question becomes what is the likelihood that Wade dissipates her account. Wade has been convicted of murder and is unlikely to be possessing property or income anytime soon. She now is aware that the victim has expressed an interest in getting her money. Consequently, Wade has an incentive to drain her account. That makes her inmate account a potentially vanishing asset. Without injunctive relief, Wade could spend her funds down and leave her victim nothing to recover, thereby "defeat[ing] the very purpose of the statute" (Harris, 68 AD3d at 1271). This threat is real and compromises OVS's statutory duty. Therefore, OVS has established an irreparable injury.

The last injunctive prong, the equity prong, requires OVS to show that the balance of the equities tips in its favor. Balancing equities means weighing any harm that would be sustained by granting or withholding the injunction (Matter of Schulz v State of New York, 217 AD2d 393, 397 [3d Dept 1995]). Where the movant, as OVS has done here, satisfies both the merits and irreparable injury prongs, the balance of the equities always tips in that party's favor absent some greater hardship that the nonmovant would suffer should the injunction issue.

Here, if the court grants the injunction, Wade would be denied access to her money (except for $1,000).^[FN3] This severe restriction might cause grave harm in some circumstances, but not in Wade's case. She is incarcerated; therefore, she has life's essentials: food, shelter, medical care, clothing and running water provided to her free by the Department of Corrections and Community Supervision. Therefore, the court finds that the balance of the equities tips in OVS's favor.

The court concludes that OVS has met all the conditions for a preliminary injunction—it is entitled to equitable relief. That leaves the final question—fashioning the terms of the injunction. Crafting an injunction's terms is an exercise in discretion and judgment. "[T]he essence of equity jurisdiction has been the power of the [court] to . . . mould each decree to the necessities of the particular case" (State of New York v Barone, 74{**79 Misc 3d at 262}NY2d 332, 336 [1989]). "In the course of [exercising its discretion], a court need not grant the total relief sought by the applicant" (Trump v International Refugee Assistance Project, 582 US 571, 580 [2017] [internal quotation marks omitted]).

As a general principle, the court should not permit the government to seize and freeze a person's property any longer than is necessary. According to the victim, she is ready to file suit "immediately." Now the court credits the victim with sincerity and believes she honestly means that she will sue soon.

However, as the court noted previously the victim is not compelled to file suit just because she has a present intent to do so (Romero, 2006 WL 842177, *7, 2006 US Dist LEXIS 14276, *19). Indeed, the victim might have a change of heart—litigation is not an easy journey and along the way unbearable memories may be dredged up. According to OVS, if the victim changes her mind, she need not inform either OVS or the court. It is not quite equitable to leave an injunction in place after the reason for it evaporates. Therefore, the court grants OVS an injunction for 18 months from the time the victim expressed her intent to commence an action against Wade—a period more than sufficient to permit the victim to file her suit.^[FN4]

Therefore, it is ordered that the respondent Ashleigh Wade (NYSID No. XXXXX; DIN XXXXX), her heirs, assigns, representatives or agents, the Superintendent of the Bedford Hills Correctional Facility or the superintendent of such other correctional facility where the respondent may be located, their employees, and all other persons in control of any funds in respondent Wade's account are enjoined and restrained from disbursing, distributing, encumbering, transferring or assigning any portion of respondent Wade's funds except for $1,000 which is exempt pursuant to Executive Law § 632-a (3) and CPLR 5205 (k); and it is further [*5]ordered that this injunction{**79 Misc 3d at 263} will dissolve, expire, and end on July 8, 2024, unless extended by the court.