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."