Replevin Amendment Liberally Granted Despite Disputed Abandonment and No Unequivocal TRO for Contempt

1. Introduction

LaBoy v Diven (2025 NY Slip Op 07381 [App Div, 2d Dept Dec. 31, 2025]) arises from a failed-to-close residential real estate transaction in Westchester County. Plaintiff Michael LaBoy contracted to purchase property from defendant Charles J. Diven, Jr. Before closing—and while renovations were pending—LaBoy moved in under an oral arrangement the parties disputed (including whether rent was required). After the sale still had not closed, Charles served a notice terminating an alleged month-to-month tenancy.

The case’s motion practice was triggered by a lockout/storage event in January 2021. Defendants asserted they found the premises unsecured, unheated, and effectively abandoned after police conducted a “well check,” and they then secured the property and moved remaining belongings to storage. LaBoy contended he and his family were lawful occupants and that defendants unlawfully changed the locks while they were away.

The central issues on appeal were whether LaBoy established (i) wrongful eviction under RPAPL 768 and entitlement to related damages and injunctive restoration of possession, (ii) contempt for violation of a purported temporary restraining order, (iii) leave to amend to add a replevin claim for allegedly withheld personal property, and (iv) sanctions/attorneys’ fees under 22 NYCRR 130-1.1.

2. Summary of the Opinion

The Appellate Division, Second Department modified the Supreme Court’s order. It affirmed the denial of: (a) a declaration of wrongful eviction under RPAPL 768 and wrongful-eviction damages; (b) a preliminary injunction restoring LaBoy to possession; (c) contempt based on the purported temporary restraining order; and (d) sanctions/fees under 22 NYCRR 130-1.1. However, it held the Supreme Court should have granted leave to amend the complaint to add a cause of action for replevin, and modified the order accordingly.

3. Analysis

3.1 Precedents Cited

A. Abandonment framework and its consequences

Masheh v JHF Mgt., LLC: The court relied on this decision for the controlling definition of abandonment—requiring (1) an intention to abandon and (2) an overt act or failure to act implying relinquishment. This provided the doctrinal lens for evaluating whether LaBoy could obtain RPAPL 768 relief as a matter of law.
City of Binghampton v Gartell: Quoted within Masheh, this case supplied the classic two-factor abandonment formulation. The Second Department treated it as the foundational statement of New York abandonment law.
Patton v Modern Asian, Inc. and Salem v US Bank N.A.: Cited to support denial of wrongful eviction relief where factual disputes preclude a determination that the occupant was unlawfully dispossessed as opposed to having abandoned the premises. These cases reinforced that RPAPL 768 relief is not appropriate on motion when abandonment is genuinely contested.

B. Preliminary injunction standards where abandonment is disputed

Lombard v Station Sq. Inn Apts. Corp.: Cited for the proposition that factual issues can “subvert” the likelihood of success on the merits—an essential element for preliminary injunctive relief. The court used this to affirm denial of an injunction restoring possession because abandonment disputes undercut success on the RPAPL 768 theory.
Cooper v Board of White Sands Condominium: Cited alongside Lombard to confirm that the presence of unresolved factual disputes can defeat the likelihood-of-success showing required for a preliminary injunction.

C. Contempt and the need for a clear, unequivocal mandate

Board of Mgrs. of Brightwater Towers Condominium v M. Marin Restoration, Inc. and Matter of Mendoza-Pautrat v Razdan: These authorities were used to articulate the core contempt requirement that an order must “clearly express[] an unequivocal mandate.” The court held the purported temporary restraining order here failed that clarity requirement.
Matter of Banks v Stanford: Quoted for the principle that contempt is inappropriate where there is “legitimate disagreement” about an order’s meaning—underscoring that ambiguity defeats contempt.
Integrity Real Estate Consultants v Re/Max of N.Y., Inc. and Shea v Signal Hill Rd. LLC: Cited to reinforce that contempt findings require unambiguous directives and that interpretive uncertainty is a bar to contempt.

D. Leave to amend and pleading a replevin claim

Tenenbaum v Ziv and Ortega v Bisogno & Meyerson: Cited for the familiar CPLR 3025(b) rule that leave to amend should be freely granted unless the amendment is palpably insufficient, patently devoid of merit, or causes prejudice/surprise.
Bhatara v Kolaj: Cited in support of liberal amendment practice and the court’s emphasis on prejudice and facial merit rather than ultimate proof at the amendment stage.
Westbury Recycling, Inc. v Westbury Transfer & Recycling, LLC and Baron v Suissa: Cited for the elements of replevin as pleaded—possession by defendants, plaintiff’s superior right/entitlement, and refusal to return property after demand. The court found LaBoy’s proposed claim adequately alleged these components.
Kimso Apts., LLC v Gandhi and Cirillo v Lang: Cited for the prejudice/undue delay analysis. Defendants did not establish undue delay or that the amendment would unfairly disadvantage them.

E. Sanctions for frivolous conduct

West Hempstead Water Dist. v Buckeye Pipeline Co., L.P. and Stone Mtn. Holdings, LLC v Spitzer: Cited for application of 22 NYCRR 130-1.1(c)’s “frivolous” standard. The court held LaBoy did not demonstrate defendants’ or counsel’s conduct met that threshold, so sanctions/fees were properly denied.

3.2 Legal Reasoning

Wrongful eviction (RPAPL 768) turned on abandonment as a factual gatekeeper. The court did not decide whether a lockout occurred; it held defendants produced evidence creating an issue of fact on abandonment (e.g., substantially removed belongings, unsecured premises, lack of heat). Under the abandonment doctrine, this factual dispute prevented a declaration of wrongful eviction and related damages on motion.
Injunctive restoration failed at the likelihood-of-success element. Because abandonment was materially disputed, LaBoy could not show a likelihood of success on the merits of the wrongful eviction claim—defeating preliminary injunctive relief restoring him to possession.
Contempt was unavailable because the TRO was not an unequivocal directive. Even though the order to show cause included language about “restor[ing] the status quo,” the court held it did not “clearly express[] an unequivocal mandate.” Where parties can legitimately disagree about what compliance requires, contempt is not an appropriate remedy.
Replevin amendment should have been allowed under CPLR 3025(b). The proposed replevin claim was facially sufficient: it alleged defendants had possession of LaBoy’s personal property and refused to return it after demand. At the amendment stage, the court focused on whether the claim was patently meritless or whether defendants showed prejudice/undue delay; they showed neither.
Sanctions require “frivolous” conduct, not merely contested conduct. The record did not establish the defendants’ litigation conduct crossed into frivolousness as defined by 22 NYCRR 130-1.1(c), so fee-shifting and sanctions were denied.

3.3 Impact

RPAPL 768 motion practice: The decision underscores that RPAPL 768 relief—especially restoration of possession— is highly sensitive to abandonment evidence. Where defendants can point to objective indicia of abandonment (unsecured premises, lack of utilities/heat, removal of belongings), courts are likely to deny dispositive relief and even interim restoration pending fact development.
Drafting/enforcing TROs: The ruling is a caution that “status quo” language, without precise and unmistakable commands, may be insufficient to support contempt. Litigants seeking enforceable interim relief should insist on clearly defined obligations, timelines, and specific acts required for compliance.
Liberal amendment as a practical remedy: Even when possession-related relief is blocked by factual disputes, plaintiffs may still preserve property-recovery claims through replevin amendments, shifting the litigation to personal-property return and damages without needing to win the immediate “who had the right to occupy” battle.
Sanctions restraint: The denial of 22 NYCRR 130-1.1 relief reinforces that New York appellate courts generally require a strong showing of frivolousness; aggressive or disputed factual positions typically do not suffice.

4. Complex Concepts Simplified

RPAPL 768 (wrongful eviction): A statutory mechanism addressing illegal lockouts/evictions in certain circumstances. If the occupant’s right to possession is disputed—and especially if abandonment is plausibly shown—courts may decline immediate relief until facts are resolved.
Abandonment: Not merely leaving temporarily. It requires both (1) an intent to relinquish the premises and (2) conduct (or failure to act) that objectively signals giving up the property (e.g., removing belongings, leaving it unsecured/unheated).
Preliminary injunction: A temporary court order granted before final judgment. One key requirement is a “likelihood of success on the merits.” If core facts are contested in a way that undermines that showing, courts typically deny this extraordinary remedy.
Contempt: A sanction for disobeying a court order. A party generally cannot be held in contempt unless the order contains a clear, specific, and unequivocal command—ambiguity defeats contempt.
Replevin: A claim seeking return of specific personal property (or its value). It commonly requires allegations that the defendant possesses the property, the plaintiff has a superior right to it, the plaintiff demanded its return, and the defendant refused.
CPLR 3025(b) (leave to amend): New York’s liberal amendment rule: courts generally allow amendments unless the new claim is clearly meritless or the opponent would be unfairly prejudiced or surprised.
22 NYCRR 130-1.1 (sanctions): A court rule allowing attorneys’ fees/sanctions for “frivolous” conduct—typically conduct without legal merit, undertaken to harass/delay, or asserting false material facts. The standard is demanding and not met by ordinary litigation disputes.

5. Conclusion

LaBoy v Diven clarifies three practical points in New York motion practice: (1) credible evidence of abandonment can defeat RPAPL 768 wrongful-eviction relief and related interim restoration of possession by creating dispositive issues of fact; (2) contempt requires an order with a clear, unequivocal mandate—“status quo” phrasing may be too ambiguous to enforce through contempt; and (3) even when possession issues remain fact-bound, CPLR 3025(b)’s liberal standard supports allowing a replevin amendment where the plaintiff plausibly alleges defendants hold and refuse to return personal property without showing prejudice or undue delay. The decision thus channels disputes like this toward fact development on abandonment while preserving a viable, streamlined pathway to litigate personal-property recovery.

Replevin Amendment Liberally Granted Despite Disputed Abandonment and No Unequivocal TRO for Contempt (LaBoy v. Diven)