NOT MARRIED BUT "DIVORCED"?

Equitable distribution of the marital residence is only available to married couples but if you are not married, and there is a "cohabitive residence", other remedies may exist when there is a split.

Whalen v McElroy 2021 NY Slip Op 50379(U) Decided on April 30, 2021 Supreme Court, Westchester County Ruderman, J.:

"Plaintiff Charles Whalen initiated this action to impose a constructive trust on 115 Hunter Avenue, Sleepy Hollow, New York (115 Hunter), which is currently owned and occupied by defendant Grace McElroy f/k/a Grace C. Behrens. He also asserts causes of action for unjust [*2]enrichment, replevin, and conversion. In the verified complaint, plaintiff alleges that he and defendant became involved in a romantic relationship in 2008, and that he resided at 115 Hunter with her from the fall of 2011 until December 2018, when defendant ended the relationship and demanded that he vacate the premises.

Plaintiff maintains that, while residing with defendant at 115 Hunter, he made substantial expenditures of time and money toward improvement and maintenance of the premises in reliance on defendant's promise that they would be married and that they would jointly own the property. Specifically, plaintiff alleges that he installed a new modulating hydronic heating system, installed a new "on demand" hot water boiler, repaired the toilet and shower in the second-floor bathroom, replaced windows and insulation, painted the exterior of the house, repaired the foundation, replaced the kitchen range, performed electrical work in the living room, repaired the roof, rear deck, and driveway, maintained the landscaping, and renovated the basement, which included demolition, painting, electrical work, and the installation of flood management systems. Plaintiff further asserts that he paid for each item himself. Additionally, in his last two causes of action, plaintiff claims that he kept personal property at the premises, which he was unable to retrieve before moving out.

As a result, plaintiff seeks a judgment (1) imposing a constructive trust on 115 Hunter, (2) awarding $302,500 for improvements he made to the property and payments he made toward cable and utilities, (3) ordering the return of certain personal property listed in Exhibit A to the verified complaint, and (4) awarding $81,500 in damages for conversion.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, and to cancel the notice of pendency pursuant to CPLR 6514. She argues that plaintiff's claims for a constructive trust and unjust enrichment fail because he does not indicate when the alleged promise took place or in what manner, nor does he claim with any specificity when the work was done. Defendant further notes that plaintiff failed to allege that defendant made the purported promises without intending to honor them.

Additionally, defendant contends that a constructive trust cannot exist and damages for unjust enrichment cannot be awarded because the claimed expenses were undertaken for the benefit of both parties, since plaintiff was living in the home that he allegedly improved, and he benefited from the payment of cable and utility bills. Defendant also takes the position that the formation of an implied contract by an unmarried couple's cohabitation is inconsistent with New York's abolition of common law marriage. If the first cause of action is dismissed, defendant contends that the notice of pendency should be cancelled as well.

Defendant also argues that plaintiff's third and fourth causes of action, for replevin and conversion respectively, should be dismissed because plaintiff failed to specifically identify certain general household items listed in Exhibit A to the complaint. To the extent that some items were properly identified, defendant argues that plaintiff failed to state when and how he became the owner of such items.

In opposition, contrary to defendant's position, plaintiff argues that a constructive trust can be based on cohabitation between two unmarried parties with the promise of marriage and an interest in the property. He also contends that the fact that certain claimed expenditures were partially for his own benefit does not preclude claims for a constructive trust or unjust enrichment. Finally, he takes the position that Exhibit A to the complaint sufficiently identifies the items subject to his replevin and conversion claims.

In reply, defendant notes that she acquired 115 Hunter before she met plaintiff and began a romantic relationship with him. She further indicates that plaintiff did not pay any costs associated [*3]with acquiring the property, nor did he make payments toward the mortgage or any other carrying costs other than cable and utilities. Defendant reiterates that the expenses for which plaintiff seeks recovery were made for his own benefit as well as hers, and that he did so without any promise on the part of the defendant.

Analysis

On a motion to dismiss a complaint under CPLR 3211 (a) (7), the complaint is liberally construed, the facts as alleged in the complaint are accepted as true, and the party whose pleading is challenged must be afforded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).

To impose a constructive trust, plaintiff must establish "(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [2d Dept 1976]). "However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established" (Rowe v Kingston, 94 AD3d 852, 853 [2d Dept 2012]). "Where the party has no actual prior interest in the property, he or she will be required to show that an equitable interest developed through the expenditure of money, labor and time in the property" (Rock v Rock, 100 AD3d 614, 615 [2d Dept 2012]).

Defendant does not dispute that a confidential relationship existed between her and plaintiff. Since it is undisputed that plaintiff and defendant were in a romantic relationship for approximately ten years, and cohabitated for over six years, and no marital or familial relationship is essential to the existence of a confidential relationship (see Sharp, 40 NY2d at 121), the first element is satisfied.

Although a promise to marry cannot be enforced (see Civil Rights Law § 80-a), plaintiff satisfied the second factor through the allegation that defendant promised him that he would ultimately share a partial interest in 115 Hunter. Relying on Mance v Mance (128 AD2d 448 [1st Dept 1987]), defendant asserts that plaintiff was required to plead that plaintiff never intended to honor or act on her alleged promise in order to satisfy the second factor; this is incorrect. Although Mance imposes this element in relation to a cause of action for fraud, it does not hold that the same is required for a constructive trust claim (see id. at 448, 449). Defendant has not provided authority for the proposition that plaintiff was required to plead that she never intended to honor the alleged promises to plaintiff.

Moreover, plaintiff met the third factor through the allegation that he improved and maintained the premises in reliance on the promise that he would acquire a partial interest in the premises. "The transfer concept extends to instances where funds, time and effort were contributed in reliance on a promise to share in the result" (Sylvester v Sbarra, 268 AD2d 424, 424 [2d Dept 2000] [internal quotation marks and citation omitted]).

With respect to the fourth factor, "[t]o prevail on a claim of unjust enrichment, a party must show that (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" (Cruz v McAneney, 31 AD3d 54, 59 [2d Dept 2006] [internal quotation marks and citation omitted]). Plaintiff has satisfied each of these elements through his allegations that he significantly improved the value of defendant's property at his own expense in reliance on defendant's promise as discussed above. Therefore, plaintiff has sufficiently pleaded the fourth factor for a constructive trust claim, as well as his second cause of action for unjust enrichment.

Defendant's reliance on Morone v Morone (50 NY2d 481 [1980]) for the proposition that the Court should not impose an implied contract between an unmarried cohabitating couple is misplaced. Notably, plaintiff does not seek to enforce a contract against defendant, or to be compensated for household services, and Morone does not involve a constructive trust claim. Morone analyzes claims of an express and implied contract for personal services between two unmarried, cohabitating people. Morone is further distinguishable from the instant matter in that it relates to contracts as opposed to the alleged improvement of property in exchange for a promise. Additionally, the alleged promise here was not for personal services, but for concrete, significant improvements to defendant's property.

Nevertheless, defendant relies principally on Morone's holding that a contract will not be implied between an unmarried cohabitating couple because the nature of the relationship results in certain personal services being rendered gratuitously (see id. at 488). However, the Court concluded that an express agreement between an unmarried cohabitating couple is enforceable (see id. at 487). Similarly, here, the alleged promise at issue is an explicit one — that the couple would be married and plaintiff would then jointly own 115 Hunter. Therefore, Morone does not preclude plaintiff's claim for a constructive trust, and the branches of defendant's motion to dismiss the first and second causes of action are denied.

The branch of defendant's motion to dismiss the third and fourth causes of action must be denied as well. "Two key elements of conversion are (1) plaintiff's possessory right or interest in the property and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's right" (Petrone v Davidoff Hutcher & Citron, LLP, 150 AD3d 776, 777 [2d Dept 2017] [internal quotation marks and citation omitted]). "A cause of action sounding in replevin must establish that the defendant is in possession of certain property of which the plaintiff claims to have a superior right" (Nissan Motor Acceptance Corp. v Scilapi, 94 AD3d 1067, 1068 [2d Dept 2012]).

The facts alleged in the complaint sufficiently establish that plaintiff left certain items at his former residence that he has been unable to retrieve. Such items were specifically listed in Exhibit A to the verified complaint. Since plaintiff has claimed to have a superior possessory right to property under defendant's control, and that defendant is interfering with that right, the branches of defendant's motions seeking to dismiss the third and fourth causes of action are denied."