FOR THE UPCOMING HOLIDAYS

MOTION PRACTICE - CROSS MOTION REQUIREMENTS

Abizadeh v Abizadeh, 2018 NY Slip Op 01892, Decided on March 21, 2018, Appellate Division, Second Department:

"CPLR 2214(a) provides that a notice of motion shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (see Shields v Carbone, 99 AD3d 1100, 1102; Matter of Blauman-Spindler v Blauman, 68 AD3d 1105, 1106; HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774). Here, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion on the ground that the plaintiff's notice of cross motion was deficient (see CPLR 2214[a]; 2215). The plaintiff's notice of cross motion failed to sufficiently specify the relief sought, against whom it was sought, and the grounds therefor (see CPLR 2214[a]). Although the plaintiff's supporting papers supplied the missing information, a court is not required to comb through a litigant's papers to find information that is required to be set forth in the notice of motion (see Jud. Conf. and Chief Admin. of the Cts. of the State of N.Y., Rep. to the 1980 Legis. in Relat. to Civ. Pract. in the Cts., Rep. of Chief Admin., at 137; see generally Fried v Jacob Holding, Inc., 110 AD3d 56, 61-62)."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

I will be volunteering today at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501 at (516) 747-4070

MORTGAGE FORECLOSURE - TO VACATE DEFAULT, USE CPLR 5015 (a)

Wells Fargo Bank, N.A. v Choo, 2018 NY Slip Op 01952, Decided on March 21, 2018, Appellate Division, Second Department:

"In June 2009, the plaintiff commenced this action against the defendant Hyun J. Choo, among others, to foreclose a mortgage. Choo failed to appear or answer the complaint, and the Supreme Court granted the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale. Subsequently, Choo moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The Supreme Court denied the motion, and Choo appeals.

"Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see CPLR 5015[a]; HSBC Bank USA v Josephs-Byrd, 148 AD3d 788; 40 BP, LLC v Katatikarn, 147 AD3d 710). "However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated, and a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (40 BP, LLC v Katatikarn, 147 AD3d at 711, citing Woodson v Mendon Leasing Corp., 100 NY2d at 68; see Hudson City Sav. Bank v Cohen, 120 AD3d 1304, 1305). Here, Choo did not move pursuant to CPLR 5015(a); rather, he expressly moved to vacate the order of foreclosure and judgment of foreclosure and sale "in the interests of justice."

Although the Supreme Court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885; see Ladd v Stevenson, 112 NY 325, 332; Katz v Marra, 74 AD3d 888, 890), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] [*2]mistake, inadvertence, surprise or excusable neglect" (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. v Coletta, 153 AD3d 757; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; Long Is. Light. Co. v Century Indem. Co., 52 AD3d 383, 384; Quinn v Guerra, 26 AD3d 872, 873). Here, Choo failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would warrant vacating the order of reference or the judgment of foreclosure and sale in the interests of substantial justice (see Wells Fargo Bank Minn., N.A. v Coletta, 150 AD3d at 758; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; HSBC Mtge. Servs. v Talip, 111 AD3d 889, 890; cf. Nationscredit Fin. Servs. Corp. v Atherley, 91 AD3d 922, 922)."

A SNOW CASE

Hutchings v. GARRISON LIFESTYLE PIERCE HILL, LLC, 2018 NY Slip Op 57 - NY: Appellate Div., 3rd Dept. 2018:

"On January 4, 2012, plaintiff Carole A. Hutchings was injured when she fell on ice in a parking lot on property managed by defendant Levin Management Properties and/or defendant Levin Properties, L.P. (hereinafter collectively referred to as Levin) and owned by defendants Garrison Lifestyle Pierce Hill, LLC and/or defendant Garrison Investment Group, LP. Levin contracted with defendant Cenova, Inc. to perform snow and ice removal services and, on January 3, 2012, defendant A Great Choice Lawncare and Landscaping, LLC applied salt to the parking lot pursuant to its subcontract with Cenova for snow and ice removal. Hutchings and her spouse, derivatively, commenced this negligence action seeking damages for the injuries she sustained. Following joinder of issue, Cenova moved for summary judgment dismissing the complaint and granting a cross claim that it asserted against Great Choice for indemnification. Great Choice cross-moved for summary judgment dismissing the complaint and Cenova's cross claim. Supreme Court granted Cenova's motion and Great Choice's cross motion and granted summary judgment in Cenova's favor on its indemnification claim against Great Choice. Plaintiff and Great Choice now appeal.

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless "(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [internal quotation marks and citation omitted]; see Baker v Buckpitt, 99 AD3d 1097, 1098 [2012]). Supreme Court determined that Cenova and Great Choice (hereinafter collectively referred to as defendants) were entitled to summary judgment in their favor. On this appeal, plaintiffs do not dispute the court's determination with regard to the sufficiency of defendants' submissions; instead, they contend that the court erred because plaintiffs raised questions of fact with regard to the first and third exceptions described in Espinal.

In opposition to defendants' submissions, plaintiffs claimed that Hutchings slipped and fell on a patch of ice that formed when snow and ice melted and refroze in a depression on the surface of the parking lot. In our view, Supreme Court properly determined that the third Espinal exception was not applicable. On this issue, plaintiffs rely on certain provisions in the agreement between Cenova and Levin that granted Cenova independent authority with regard to aspects of its snow and ice removal services, including, specifically, a provision that obligated Cenova to "report to the property without request . . . when icy, sleet or slush conditions exist," and a provision that encouraged "spot applications" of salt and sand when necessary. The agreement also stated that Levin retained authority over Cenova's work, inasmuch as it prioritized its plowing schedule, told Cenova where to pile snow, detailed the ice removal materials and methods that Cenova was to use and required Cenova to seek Levin's approval before it applied salt and sand in certain circumstances. Accordingly, while Cenova retained some independent authority, we cannot conclude that the agreement "displaced entirely" Levin's duty to maintain the property (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584 [1994]; see Gibson v Dynaserv Indus., Inc., 88 AD3d 1135, 1136 [2011]; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 673-674 [2004]; compare Karac v City of Elmira, 14 AD3d 842, 844 [2005]).

With respect to the first Espinal exception, plaintiffs alleged that defendants "created and/or increased and exacerbated the hazardous condition" in the parking lot. Further, by their bill of particulars, plaintiffs alleged that defendants "fail[ed] to remove the snow and ice" and "creat[ed] the buildup of ice, dirt and frozen slush, which had accumulated on the ground." Further, plaintiffs alleged that the condition that caused Hutchings' injury was the "slippery and uneven mixture of compacted snow, ice and dirt, and a generally slippery condition including elevation and depression on the surface, which accumulated on the ground in the rear parking area." We find that Supreme Court properly determined that defendants met their initial burdens by establishing that there was no affirmative negligence (see Fung v Japan Airline Co., Ltd., 9 NY3d 351, 361 [2007]).

In opposition to Cenova's motion and Great Choice's cross motion, plaintiffs submitted an affidavit by Howard G. Altschule, a forensic meteorologist. Based on his review of, among other things, the meteorological records and photographs of the parking lot and area where Hutchings fell, Altschule opined that, if the lot had been treated with materials to melt the snow and ice on the day before she fell, "areas of standing water and wet surfaces would have formed, and melt would have pooled at low points on the surface of the parking lot" and, if not treated overnight, these areas would have "frozen and turned to ice" by the time that Hutchings fell the next day. In our view, Altschule's affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition (see id.; DiGrazia v Lemmon, 28 AD3d 926, 928 [2006], lv denied 7 NY3d 706 [2006]; compare Hannigan v Staples, Inc., 137 AD3d 1546, 1550 [2016] [where contractor may have created dangerous condition by piling chunks of ice which melted then ran downhill and refroze within a depressed area of the parking lot]). Accordingly, Supreme Court properly granted Cenova's motion and Great Choice's cross motion for summary judgment dismissing the complaint against them."

ILLEGAL APARTMENTS IN NON-MULTIPLE DWELLINGS

In this case, the Multiple Dwelling Law did not apply yet the apartment lacked a certificate of occupancy. Madden v. Juillet, 2015 NY Slip Op 50214 - NY: Appellate Term, 2nd Dept. 2015:

"In this small claims action, Margaret A. Madden (plaintiff) appeals, on the ground of inadequacy, from a judgment of the District Court, which, after a nonjury trial, awarded her the principal sum of $875 against defendant, the former tenant of the lower level of plaintiff's house, but failed to award plaintiff $1,200 that she had sought for the attorney's fees she had allegedly incurred in bringing a prior nonpayment proceeding against defendant. Defendant cross-appeals from the judgment, arguing that she does not owe the $800 which was awarded to plaintiff for April 2012 rent because the premises was an illegal basement apartment and because plaintiff breached the warranty of habitability.

In our view, the District Court properly declined to award plaintiff the attorney's fees she sought, as plaintiff failed to prove that she had paid the fees. In any event, in view of the mixed outcome of the prior nonpayment proceeding—plaintiff had sued defendant for $2,400 and had been awarded only $800—it cannot be said that plaintiff was the prevailing party in that proceeding (see e.g. Mosesson v 288/98 W. End Terrace Corp., 294 AD2d 283 [2002]).

Contrary to defendant's contention, the absence of a certificate of occupancy for the lower-level apartment does not bar the recovery of rent (see Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U] [App Term, 9th & 10th Jud Dists 2012]; Pickering v Chappe, 29 Misc 3d 6 [App Term, 2d, 11th & 13th Jud Dists 2010]; Schweighofer v Straub, 23 Misc 3d 132[A], 2009 NY Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2009]; Corbin v Briley, 192 Misc 2d 503 [App Term, 9th & 10th Jud Dists 2002]; Tuzel v Reilert, NYLJ, Dec. 3, 1996 [App Term, 9th & 10th Jud Dists])."

NOTE: This was an appeal from a plenary action and not a special proceeding landlord/tenant action.

MULTIPLE DWELLING LAW AND ILLEGAL APARTMENTS

New York Multiple Dwelling Law § 302 provides in part:

"1. a. If any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one , during such unlawful occupation any bond or note secured by a mortgage upon said dwelling or structure, or the lot upon which it stands, may be declared due at the option of the mortgagee.

b. No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent. "

In Lispenard Studio Corp. v. Loeb, 2016 NY Slip Op 30945 - NY: City Court, Civil Court 2016, this was addressed by the court:

"A substantial body of law supports the proposition that MDL §302 rent forfeiture provisions do not apply if the tenant was complicit in the existence and maintenance of an illegal apartment, Zane v. Kellner, 240 A.D.2d 208, 209 (1st Dept. 1997), 58 E. 130th St. LLC v. Mouton, 25 Misc. 3d 509, 511 (Civ. Ct. N.Y. Co. 2009), citing, Zafra v. Sawchuk, N.Y.L.J., Jan. 9, 1995, at 27:2 (App. Term 1st Dept), if the tenants knew that their occupancy was illegal, Zane, supra, 240 A.D.2d at 209, Eli Haddad Corp. v. Cal Redmond Studio, 102 A.D.2d 730 (1st Dept. 1984), Lipkis v. Pikus, 99 Misc.2d 518, 520 (App. Term 1st Dept. 1979), aff'd, 72 A.D.2d 697 (1st Dept 1979), appeal dismissed, 51 N.Y.2d 874 (1980), Dodds v. 1926 Third Ave. Realty Corp., 2011 N.Y. Misc. LEXIS 3921 (S. Ct. N.Y. Co. 2011), if the tenants somehow prevented the legalization, Chatsworth 72nd Street Corp. v. Rigai, 71 Misc. 2d 647, 651 (Civ. Ct. N.Y. Co. 1972), aff'd, 74 Misc.2d 298 (App. Term 1st Dept.), aff'd, 43 A.D.2d 685 (1st Dept. 1973), aff'd on the opinion of the Civil Court of the City of New York, 35 N.Y.2d 984, 895 (1975), First Edition Composite, Inc. v. Wilkson, 177 A.D.2d 297, 299 (1st Dept. 1991), Hornfeld v. Gaare, 130 A.D.2d 398, 400 (1st Dept. 1987), Amdar v. Armenti, N.Y.L.J. June 23, 1994 at 28:4 (App. Term 1st Dept.), or if the subject premises do not pose a threat to the tenant's health and safety. Zane, supra, 240 A.D.2d at 209, Dogwood Residential, LLC v. Stable 49, Ltd., 2016 N.Y. Misc. LEXIS 1362 (S. Ct. N.Y. Co. 2016), citing Beneficial Cap. Corp. v. Richardson, No. 92 Civ. 3785, 1995 US Dist LEXIS 7354 (S.D.N.Y. 1995).

This authority relies upon an "abandon[ment of] a literal application of MDL §302 in favor of allowing equity to control in order to avoid a tenant's unjust enrichment," as one Court put it. B.S.L. One Owners Corp. v. Rubenstein, 159 Misc.2d 903, 908 (Civ. Ct. Richmond Co. 1994). However, a recent Court of Appeals case rejects the abandonment of a literal application of MDL §302. Chazon, LLC v. Maugenest, 19 N.Y.3d 410, 415-16 (2012)("[i]n the absence of compliance, the law's command is quite clear . . . [judicially-carved-out exceptions to MDL §302] may make sense from a practical point of view. But we find nothing . . . to explain how they can be reconciled with the text of the statute. They simply cannot. . . . If that is an undesirable result, the problem is one to be addressed by the Legislature"). The Court's strict application of MDL §302 appears to render the rest of the authority standing for a different result without effect. Accord, 742 Realty LLC v. Zimmer, 46 Misc.3d 1204(A) (Civ. Ct. N.Y. Co. 2014), citing Caldwell v. American Package Company, Inc., 57 AD3d 15, 26, 866 N.Y.S.2d 275 (2nd Dept. 2008).

Petitioner argues that Phillips & Huyler Assocs. v. Flynn, 225 A.D.2d 475 (1st Dept. 1996) compels a different result, insofar as it holds that application of MDL §302 could unjustly enrich a tenant. However, not only does this ruling pre-date Chazon, LLC, supra, 19 N.Y.3d at 410, not only does this ruling come from a Court lower than the Court in Chazon, LLC, supra, 19 N.Y.3d at 410, but this ruling favors the position of a commercial landlord, not a residential landlord. MDL §302 evinces a limited application to residential tenants. 455 Second Ave. LLC v. NY Sch. of Dog Grooming, Inc., 37 Misc.3d 933, 936 (Civ. Ct. N.Y. Co. 2012).

Another argument against application of MDL §302 to this proceeding is that the parties have contracted that Respondents were the parties responsible for legalizing their occupancy of the subject premises. Contracts between cooperatives and shareholders valid, Kenneth D. Laub & Co. v. Bear Stearns Cos., 262 A.D.2d 36 (1st Dept. 1999), and indeed, include elements of self-determination not found in leases for apartments in privately-owned buildings, as shareholders devise by policy themselves through a board of directors elected by them. 930 Fifth Corp. v. King, 71 Misc.2d 359, 364 (App. Term 1st 1972).^[3] However, the default proposition is that a cooperative, rather than an individual shareholder, bears responsibility for obtaining a residential certificate of occupancy. O'Flaherty v. Schwimmer, 158 Misc.2d 420, 424-425 (S. Ct. N.Y. Co. 1993)(Tom, J.), unanimously affirmed for the reasons stated, 208 A.D.2d 425 (1st Dept. 1994). The proposition that the parties can shift this responsibility rests upon the premise that a tenant's rights as defined by MDL §302 are waivable when, in fact, authority holds that they are not waivable. Dawkins v. Ruff, 10 Misc.3d 88, 89 (App. Term 2nd Dept. 2005), BFN Realty Assocs. v. Cora, 8 Misc.3d 139(A) (App. Term 2nd Dept. 2005), Willoughby Assocs. v. Dance-Lonesome, 2003 N.Y. Misc. LEXIS 822 (App. Term 2nd Dept. 2003).

Petitioner argues that Respondents' hands are "unclean" such as to preclude the relief Respondents seek, relief that Petitioner characterizes as equitable. Petitioner's reasoning is backwards. It is Petitioner that is seeking an equitable relief from the dictates of MDL §302. See B.S.L. One Owners Corp., supra, 159 Misc.2d at 903. The Court of Appeals rejected an "equitable" approach to MDL §302 insofar as it found the statute inconsistent with concerns of unjust enrichment. Chazon, LLC, supra, 19 N.Y.3d at 416.

Chazon, LLC, supra, 19 N.Y.3d at 410, applies MDL §302 to a landlord who has not complied with the legalization schedules set pursuant to MDL §281 et seq., commonly known as the Loft Law. A broad remedial purpose of the Loft Law was to confer rent-stabilized status on legalized interim multiple dwellings. Tan Holding Corp. v. Wallace, 187 Misc.2d 687, 688 (App. Term 1st Dept. 2001), Walsh v. Salva Realty Corp., 2009 N.Y. Misc. LEXIS 6056, 7-8 (S. Ct. N.Y. Co. 2009). As cooperatives cannot be subject to the Rent Stabilization Law, 9 N.Y.C.R.R. §2520.11(1), Loft Law coverage does not apply to owner-occupied cooperatives such as the subject premises, Tri-Land Properties, Inc. v. 115 West 28th St. Corp., 267 A.D.2d 142 (1st Dept. 1999), raising a question about the factual distinction between this matter and the facts of Chazon, LLC, supra, 19 N.Y.3d at 410. However, the Court in Chazon, LLC, supra, 19 N.Y.3d at 410 interpreted MDL §302 on its plain language, employing a canon of interpretation that does not depend on the particular facts of the case. Nothing in the text of MDL §302 restricts such an interpretation solely to a landlord of a property subject to the Loft Law and, indeed, MDL §302 pre-dates the Loft Law.

Petitioner argues that Respondents are still commercial tenants in part and that Petitioner still has a cause of action against them for commercial rent, an argument that does not effectively address Respondents' motion, as Housing Court does not have subject matter jurisdiction over disputes over commercial premises. 54-56 Mgt. Corp. v. Birmingham, 13 Misc.3d 1207(A)(Civ. Ct. N.Y. Co. 2006).^[4]

Whatever iniquity an application of MDL §302 visits upon Petitioner, the record on this motion practice suggests that Respondents fulfilled their obligations by the end of 2012 and yet a temporary certificate of occupancy did not expire until November of 2014, raising the possibility that Petitioner may be the party responsible for the current status of the certificate of occupancy after all. For what it's worth, Petitioner's secretary avers in support of Petitioner's motion that Respondents "continued in their failure to remedy the violative conditions, up to and including the date of this affidavit," which was February 24, 2016. Petitioner's secretary's averment indicates a dispute between the parties as to which party is culpable for the lack of a fire protection plan, a requirement that DOB may have imposed as a result of delays, maybe incurred by Respondents, in completing the work otherwise necessary to obtain a certificate of occupancy. Given the applicability of MDL §302 to this matter, the Court does not reach this issue and makes no findings herein except to note that a dismissal of a cause of action for maintenance/rent does not preclude or prejudice other causes of action and/or defenses the parties may have against one another in a plenary action."

BREAKING UP IS HARD TO DO

Marra v. Nazzaro, 2018 NY Slip Op 50004 - NY: City Court 2018:

"Plaintiff Johanna Marra ("Johanna") demanded that Defendant Eric Nazzaro ("Eric") pay her thousands of dollars for expenditures that she made during their romantic relationship. Eric refused, so Johanna sued him. The Court held a trial on November 13, 2017 to resolve the matter. Although much of the testimony conflicted, the court finds the facts as follows.^[1]

The relationship between Johanna and Eric began in October 2013. The previous July, Eric had purchased a duplex in Cohoes, which he described as "a fixer upper." Eric rented the upstairs and he and Johanna moved in downstairs. Over the course of the next four plus years, the two lived as a committed and intimate couple, but never solemnized their relationship by taking marital vows.

As noted, the house needed repairs. Eric and his friend (who labored for free) worked to upgrade the home and Johanna paid for tools and supplies. For one room, the bathroom, the couple had different visions. Johanna wanted a "fancy bathroom;" Eric wanted a low-cost one. He told Johanna that if she desired a fancy bathroom she would have to use her money to pay for it — which she did in the approximate amount of $6,900. Additionally, Johanna did not like two trees that fronted the property so she paid $2,500 to have them removed.

There was no expectation that Eric would repay Johanna, rather the expectation was an enduring relationship. She happily paid for the house's improvement; her hope was that someday the sale of the house would provide the money for her and Eric to move to Florida. She was in love and so much so that she never saw the end coming — but it came.

One day in the beginning of May 2017, Eric told Johanna he was going fishing, but he wasn't — he was leaving her for another woman. When Johanna returned home that evening, she found a note explaining that the relationship was over. Several days later a mutual friend of Johanna and Eric called an armistice and convened a meeting of the three of them. At that meeting, Eric told Johanna that she could stay at the house until November 1, 2017 and that he would pay her several thousand dollars for the money that she spent to improve the house.

After the meeting, things did not go so well. Johanna wanted Eric to reduce his pledge to writing, acknowledging that he would repay her $7,000. Eric's want of alacrity (or plain unwillingness) to formalize an agreement triggered Johanna to pester him constantly with texts and calls. By August, Eric sought and received an order of protection from the Albany County Family Court. The order, in practical effect, evicted Johanna from Eric's house.

Johanna wants to recover the money she spent on the bathroom, the money she spent removing the trees and the money she spent on general expenses. These expenses were provided to the court with fine detail (exhibit 1). This type of question regularly haunts the court and is fraught with all sorts of misconceptions by the parties who demand economic redress for a failed relationship. The court will analyze what, if anything, Eric owes Johanna.

This case arises under the small claims statute where the Legislature has instructed the courts to do substantial justice (Uniform City Court Act §1804). Substantial justice does not grant the court some type of roving jurisdiction to do what in its eyes seems just and fair. Rather, "substantial justice means that the Court should explore all appropriate legal theories that could potentially afford plaintiff[] relief "(Carlo v. Koch-Matthews, 53 Misc 3d 466, 470 [2016]).

To begin with, the court will not arrange a financial distribution between the parties based upon who paid for what stuff. The court is precluded — "by virtue of the lack of a marriage contract, the parties are not eligible for the benefits and protections of New York's equitable distribution law, as embodied in Domestic Relations Law § 236(B)(5) and its paragraphs" (Dee v. Rakower, 112 AD3d 204, 217 [2nd Dept 2013]).

The court, however, will consider contract law as a theory for recovery. If the parties, during or subsequent to their relationship, made a binding contract, the court will enforce that contract (see Morone v. Morone, 50 NY2d 481, 489 [1980] [holding that expressed contracts between cohabitants are enforceable]). The court believes and accepts as true that the parties hoped someday to sell the house and move to Florida together. However, such dreams do not make an express contract. The essence of a contract is mutual assent — a meeting of the minds as to the nature of the agreement — and without it, no contract can exist (see generally Restatement of Contracts Second §17[1]). Here, Johanna testified that neither her nor Eric contemplated, let alone agreed to, repayment of the bathroom renovations (or any other expenses) incurred by Johanna should the relationship go bad. Thus, the parties had no express contract; hence, no recovery may be had under this theory.

Nor is the court convinced that there was an implied contract; the implied contract being that Eric had to reimburse Johanna for her expenditures if Eric breached fidelity.^[2] The problem here is the financial dealings between Eric and Johanna were inseparably intertwined with their romantic relationship. The things done for affection and transactions made in the course of and as a natural consequence of living together in a romantic relationship do not translate well into contract law. Unsurprisingly, the Court of Appeals has held "an implied contract between an unmarried couple living together is contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriage" (Morone, 50 NY2d at 489). Thus, while Eric was a cad, his conduct does not and cannot give rise to a breach of an implied contract.

While nothing during the course of their relationship created a contract, after the break-up, Eric made some promises to Johanna. The court will examine whether these promises established a contractual obligation. In particular, the evidence established that Eric promised to pay Johanna "several thousand dollars" for investments that she made to improve the house. To create a binding contract, the terms thereof must be definite. Accordingly, "a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" (Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991]). Here the material term of performance — the payment of "several thousand dollars"— is too vague to be enforced (see e.g. Glanzer v. Keilin & Bloom LLC, 281 AD2d 371, 372 [1st Dept 2001] [holding that promise to pay employee a "substantial income" is too indefinite to permit enforcement]; Freedman v. Pearlman, 271 AD2d 301, 303 [1st Dept 2000] [holding that promise to equitably divide monies was too indefinite to be enforced]). Thus, Eric incurred no liability based upon his promise to pay an indefinite sum of money.

This conclusion does not end the matter. Recovery may be had under the doctrine of quasi-contracts. A quasi-contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another (Clark—Fitzpatrick v. Long Island R.R. Co., 70 NY2d 382 [1987]).

The common law courts invented quasi-contracts as a legal fiction. In truth, they are not contracts at all. Rather, it is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties have placed in the possession of one party the other's property, under such circumstances that in equity and good conscience he ought not to retain it. Thus, even though the parties had never consented to a contract, a quasi-contract produces obligations in the same manner as an actual contract between the parties (see generally Restatement of Contracts Second §4 [comment b] [providing underpinnings of the quasi-contracts]).^[3]

The quasi-contract doctrine available here to Johanna is unjust enrichment. The elements of an unjust enrichment claim are "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation and citations omitted]).

Applying this test to the renovations, the court begins by noting that Eric wanted no part of the bathroom upgrade. As Eric's testimony elucidates, Johanna brought the bathroom upgrade by herself for herself.^[4] Yet Eric has retained the property (the sink, the vanity etc.) and this property has increased the value of his house. So, Eric has been enriched at Johanna's expense. There is no reason why Eric should retain her property. It was Eric's secret affair that caused the relationship's dissolution. In the May meeting, Eric acknowledged, although not in terms of a contract, that he should pay Johanna thousands of dollars for her investment in the house. Thus, even Eric conceded that in fairness, he should compensate Johanna something. The court concurs.

Under these circumstances, the court finds that "that it is against equity and good conscience to permit [Eric] to retain what is sought to be recovered [by Johanna]" (Mandarin Trading Ltd., 16 NY3d at 182). The court believes that Johanna is entitled to the value of the physical items that Johanna brought for herself because they are impractical to remove from the house. The court awards the cost of the bathroom fixtures, fans, vanity, faucets, door, television mount, light fixtures, toilet and blinds; this totals $1,737.00 (exhibit 1).

Finally, the court will address Eric's promise that Johanna could live at his house rent free until November 2017. Eric testified that he made this promise, but he didn't keep it. He leveraged the order of protection that Family Court granted him to have Johanna removed from his house. Okay, but he did not condition his promise of rent free living on that Johanna leave him alone. Moreover, removing Johanna from the house was not essential to enforce the order of protection. If Johanna did not cease communication or her other illicit conduct required by the order, she would have been in contempt of court which carries with it significant criminal penalties (Penal Law §215.50). All this to say that it was unnecessary to remove Johanna from his house to make the harassment stop.

Johanna could recover 2½ months' rent under a theory of promissory estoppel. Promissory estoppel binds a party to a promise made (even without consideration), if the promise (1) is clear and unambiguous; (2) induces a reasonable and foreseeable reliance by the party to whom the promise is made; and (3) causes injury as a result of the party's reliance (Clifford R. Gray, Inc. v. LeChase Const. Services, LLC, 31 AD3d 983, 986 [3d Dept.2006]).^[5]

The court finds that Eric's promise to Johanna that she could live in his house rent free until November, clear, unambiguous and unconditional. Further, the court finds that Johanna's reliance on the promise was reasonable and that she was forced to leave the home on August 22 — depriving her of 2½ months of rent free living. Eric charged his upstairs tenant $600 a month rent for a smaller space. Eric testified that he demanded that Johanna pay $500 of rent when they first began cohabitating in 2013. The court deems $550 a month a fair rent for Eric's house in 2017. Therefore, Johanna is entitled to $1,237.50 in damages because Eric had removed her from his house prematurely.

Therefore, it is

ORDERED that Defendant Eric Nazzaro pay Plaintiff Johanna Marra $2,974.50 together with filing fees of $20.00.

The foregoing constitutes the Decision and Order of the Court.

[1] The court resolved conflicting versions of the facts by observing the tenor and the demeanor of the witnesses and the parties' reaction during the testimony of their adversary. Further, the court found the testimony of Tammy Baldwin highly credible in many respects because she, in the court's estimation, lacked motive to shade her testimony. Based upon these factors, the totality of the evidence and testimony and fair inferences made therefrom, the court arrived at its factual findings.

[2] The difference between expressed and implied contracts involves the kind of evidence offered to prove the contract. Express contracts are established by presenting evidence of the language used to articulate the terms. Implied contracts are established where a court can fairly imply terms and assent thereto by the conduct of the parties (including silence) viewed in the light of surrounding circumstances (see generally Restatement of Contracts Second §4 [Comment a]).

[3] See also NY Pattern Jury Instr.—Civil 4:1: "Contracts implied in fact must be distinguished from contracts implied-in-law (quasi contracts), which are not contracts at all but obligations imposed by law through the legal fiction of a contract."

[4] Significantly, although Eric's friend had provided free labor for his work on the rest of Eric's house, he charged Johanna over a $1,000 for his labor on the bathroom project. In other words, Eric contributed nothing — not even free labor.

[5] Although the court believes it could make an award based upon wrongful eviction, the doctrine of promissory estoppel is a better theoretical fit for this case."

PARENTING TIME - PARENT IN PRISON

Matter of Jackson v Wylie-Tunstall, 2018 NY Slip Op 01605, Decided on March 14, 2018, Appellate Division, Second Department:

"The father, who is incarcerated, petitioned for visitation with the parties' child. After a hearing on the father's amended petition for visitation, the Family Court granted the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address. The father appeals.

The paramount concern when making a visitation determination is the best interests of the child under the totality of the circumstances (see Matter of LaChere v Maliszweski, _____ AD3d _____, 2018 NY Slip Op 00147 [2d Dept 2018]; Matter of Torres v Pascuzzi-Corniel, 125 AD3d 675). Since visitation determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the Family Court's findings, which should not be set aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v Wiltshire, 145 AD3d 776, 777; Matter of Pierre v Dal, 142 AD3d 1021, 1023).

Here, the child, who was 13 years old at the time of the hearing, had not seen the father since she was an infant and did not want any contact with him. The father did not seek visitation when a custody order was entered on his consent, and the record does not evince any substantial efforts on his part to form a relationship with the child. Moreover, the father's family arranged a telephone call between the child and the father, with whom the child had not spoken since she was three or four years old, without the mother's knowledge or consent, and the father wrote the child letters in which he made inappropriate comments about the child's stepfather, with whom the child has a good relationship. Under these circumstances, the Family Court's determination to grant [*2]the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address had a sound and substantial basis in the record.: