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."

NOT MARRIED BUT ENDS LIKE A DIVORCE

Baron v Suissa, 2018 NY Slip Op 08453, Decided on December 12, 2018, Appellate Division, Second Department:

The plaintiff and the defendant met in 1992, while each of them was married to another person. After the defendant obtained a divorce from his wife in or about 1995, the parties began living together and, thereafter, moved into a house located in Northport. The parties do not dispute that the defendant is the only person named on the deed and mortgage as the owner of the house. The plaintiff alleged, however, that the parties agreed that the house was to be retitled into joint ownership upon the completion of her divorce. The plaintiff also alleges that she and the defendant entered into an oral agreement to form an antiques business as partners and to share equally in the profits and inventory of the partnership. She further alleged that the defendant promised, in exchange for her domestic services and legal services to the defendant's other businesses during the course of the relationship, to maintain and support her and share equally in the income and assets acquired during the relationship. When the parties' relationship ended in 2008, the defendant sought to evict the plaintiff and her son from the house. The plaintiff alleged that the defendant removed from the house fixtures, antiques, and other personal property in which the plaintiff alleges she had an ownership interest.

In May 2009, the plaintiff commenced this action, seeking relief in the nature of, inter alia, a constructive trust, an accounting of partnership assets, specific performance, recovery for [*2]unjust enrichment, conversion, and replevin, and to recover damages for fraud and slander. The defendant moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1), (3), (5), and (7), but the motion was misfiled by the Supreme Court and remained pending and undecided for several years. In 2012, the defendant made a motion, denominated as one pursuant to CPLR 2221(a) for leave to renew his pending and undecided motion to dismiss the complaint. In the order appealed from, the Supreme Court, among other things, granted leave to renew and, upon renewal, granted those branches of the motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. The plaintiff appeals, and we modify.

CPLR 3211 provides, inter alia, that a party may move for judgment dismissing one or more causes of action on the ground that "the cause of action may not be maintained because of . . . [the] statute of frauds" (CPLR 3211[a][5]). "On a CPLR 3211 motion made against a complaint, including a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint based on the statute of frauds, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" (AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803, quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [internal quotation marks omitted]).

We agree with the Supreme Court that, insofar as they related to real estate, the causes of action arising from the multiple purported oral agreements between the parties were required to be in writing pursuant to the statute of frauds (see General Obligations Law § 5-703). The court, however, failed to consider the plaintiff's contention in opposition to the defendant's motion that her allegations of partial performance under the purported agreements were sufficient to permit her claims related to real estate to survive the absence of an appropriate writing (see General Obligations Law § 5-703[4]). With respect to the defendant's alleged promise to retitle the house in both parties' names upon the plaintiff's divorce and in consideration of her alleged $100,000 contribution to the purchase price, the plaintiff's allegations were sufficient, at this early procedural stage, to fall within an exception to the statute of frauds and survive dismissal. Accordingly, the court should not have granted those branches of the motion which were pursuant to CPLR 3211(a)(5) to dismiss the seventeenth cause of action and so much of the twentieth cause of action as pertain to ownership of the house (see Mackenzie v Croce, 54 AD3d 825, 826).

We disagree with the Supreme Court as to the applicability of the statute of frauds to the plaintiff's allegations as to other express oral agreements between the parties, namely those related to her provision of domestic and legal services in exchange for support and sharing of business profits. Agreements between persons cohabiting together are not per se required to be in writing (see Morone v Morone, 50 NY2d 481, 487-488). Moreover, the plaintiff's allegations as to the terms of the oral agreements do not otherwise fall within the statute of frauds (see General Obligations Law § 5-703; Starr v Akdeniz, 162 AD3d 948, 949; Meagher v Doscher, 157 AD3d 880, 883; Kelley v Galina-Bouquet, Inc., 155 AD2d 96, 100). Accordingly, the court should have denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(5) to dismiss the second, sixth, ninth, tenth, eleventh, twelfth, thirteenth, eighteenth, and nineteenth causes of action, and the part of the twentieth cause of action that does not pertain to ownership of the house.

We also disagree with the Supreme Court's determination granting that branch of the motion which was to dismiss the plaintiff's third cause of action pursuant to the statute of frauds. The third cause of action seeks the return of certain personal items that allegedly were owned by the plaintiff separately prior to her relationship with the defendant. Thus, the property that was the subject of that cause of action was not within the statute of frauds.

We agree with the Supreme Court that certain evidence submitted by the defendant in support of the motion did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1).

Nevertheless, we disagree with the court's directing dismissal of the majority of the remaining causes of action, which are for equitable relief, on the ground that the same evidence established as a matter of law that the plaintiff had, among other things, engaged in a dubious scheme to avoid creditors and a Medicaid lien and, in doing so, had committed perjury by disclaiming, at that time, any ownership interest in the house, personal property of value contained in the house, and a safe deposit box and its contents. The court's determination that the plaintiff is, in effect, judicially estopped by that evidence is premature. Viewing the complaint in the light most favorable to the plaintiff and affording her every favorable inference, we find that the complaint [*3]sufficiently alleged causes of action to recover for conversion and seeking, inter alia, a constructive trust and replevin. Accordingly, the court should have denied those branches of the motion which were to dismiss the first, fifth, eighth, twenty-third, and twenty-fourth causes of action, and those portions of the fourth and seventh causes of action that did not relate to property purportedly owned by the plaintiff's son.

We agree with the Supreme Court's determination granting those branches of the motion which were to dismiss those portions of, inter alia, the fourth and seventh causes of action that relate to property allegedly owned by the plaintiff's son. The plaintiff failed to allege facts that would support her right to assert those causes of action on her son's behalf.

NEW YORK DIVORCE - CELL PHONE EVIDENCE AND COHABITATION

When you are on various Internet groups, you get links to some very interesting articles and I pass this one along:

Cohabitation, the Termination of Alimony and Cell Phones

I liked it for two reasons:

1. It addresses cell phone evidence which, like email, Facebook and similar items, can become important items of evidence in various aspects of matrimonial law (although it does not address the cost in legal fees, etc. in obtaining these records).

2. It discusses the issue of cohabitation, which raises issues not only in maintenance but may also in custody matters.

But what is "cohabitation"?  Graev v Graev, 11 NY3d 262 [2008]) gives a warning to parties to make it explicitly clear what the terms of the agreement are with respect to the definition of cohabitation.