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Lichtman v Gibbons 2007 NY Slip Op 30824(U) April 4, 2007 Supreme Court, New York County Docket Number: 0100075/2003 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF MEW YORK - NEW YORK COUNTY
PRESENT:

Index Number : 100075/2003 LICHTMAN, MARILYN
VS

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INDEX NO.
MOTION DATE MOTION SEQ. NO.
MOTION CAL. NO.

PART

3.c

GIBBONS, JOSEPH G.
Sequence Number : 007

SUMMARY JUDGMENT

The following papers, numbered 1 t o

were read on this motion to/for
PAPERS NUMBERED

Notice of Motion/ Order t o Show Cause Answering Affidavits Replying Affidavits

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Affidavits

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Exhibits

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Exhibits

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Cross-Motion:

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' No

Upon the foregoing papers, it is ordered that this motion

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Check one:

J. S. C.

7 FINAL DISPOSITION
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d N O N - F I N A L DISPOSITION

Check if appropriate:

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REFERENCE

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Plaintiff. "against-

Index No.

b
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Qs-p

00075/03
otion Seq No. 007

DORIS LING-COHAN, J.

Defendant moves for summary judgment dismissing the complaint. Plaintiff cross-moves for leave to amend the complaint. This is an action alleging fraud and conversion. Plaintiff is the owner-operator of a private nursing home facility. Defendant was a food service manager for a vendor to plaintiffs nursing home facility. The parties entered into a romantic relationship from May to December

2002. During the course of their relationship, defendant moved into plaintifr s penthouse
apartment on the Upper East Side of Manhattan, where he lived with plaintiff except when visiting his family on weekends. Plaintiff does not dispute that, at such time, she knew defendant
was married, with two young children, and lived in Pennsylvania. Plaintiff alleges that defendant

claimed he was in the process of commencing divorce proceedings against his wife, when both parties became romantically involved. In the course of their relationship, plaintiff gave defendant money and property, which among other items, consisted of the following: a payment of $5,000; a $5,000 watch; payments

of $37,500 and $65,000 to pay defendant's mortgage to facilitate what plaintiff believed to be an
"amicable" divorce between defendant and his wife; and a $49,000 check which was used to

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purchase a Lincoln Town Car. The complaint alleges that plaintiff relied on misrepresentations made by defendant when she gave him the money and property. In December 2002, defendant terminated the relationship with plaintiff. In this action, plaintiff is seeking compensatory damages, as well as the recovery of the Lincoln Town Car,from defendant. After extensive depositions and two prior unsuccessful motions to dismiss, defendant moves for summary judgment dismissing the complaint. The sole basis asserted by defendant in his motion for summary judgment is that this action is barred by Article 8 of the New York Civil Rights Law. Specifically, defendant asserts that Section SO-a of such statute bars causes of action for alienation of affection, criminal conversion, seduction and breach of contracts to marry.' Defendant argues that the misrepresentationsthat form the basis of plaintiffs fraud and conversion claims are based on his intention to get a divorce and marry plaintiff. Defendant contends that plaintiff was engaged to him, and that although plaintiff claimed the engagement would be in perpetuity, she admitted that

she expected and desired to have a "monogamous relationship", which defendant asserts
amounted to a common law marriage with him.2

' New York Civil Rights Law, Article 8, Section SO-a specifically states:
"The rights of action to recover sums of money as damages for alienation of affections, criminal conversion, seduction, or breach of contract to marry are abolished. No act done within this state shall operate to give rise, either within or without this state, to any such right of action. No contract to marry made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for its breach." The Court notes that New York State does not recognize common law marriages.
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Defendant also claims that the action is barred by Section 80-b of the Civil Rights Law.3 Defendant argues that such section - which allows for the recovery of gifts given in contemplation of marriage - does not extend to actions to recover property given in the course of
an illicit relationship (i.e. a relationship in which one of the parties is already married).

Defendant argues that plaintiff cannot avoid summary judgment by claiming fraud and conversion, because courts have rejected such attempts to plead around Article 8 of the Civil Rights Law. Plaintiff opposes the motion and cross-moves for leave to amend the complaint to include a claim for conversion of a telescope. Plaintiff argues, in opposition, that there was never a promise to marry and that she rejected "proposals" made by defendant in the course of their relationship. According to plaintiff, defendant said that he wanted to leave his marriage to his wife with "only the shirt on [his] back" which would allow him to give his wife a house that was free and clear of any outstanding mortgage. Plaintiff claims that this was the expressed reason

for the payments of $65,000 and $37,500, but that defendant was actually defrauding her. With
respect to the Lincoln Town car, plaintiff avers that defendant simply took $49,000 from her, bought the car and kept it, although the car was meant to be hers.
New York Civil Rights Law, Article 8, Section 8-bprovides as follows: "Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recover of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

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On a motion for summary judgment, the moving party must first establish through evidentiary proof in admissible form, that the court is warranted in directing judgment in hisher favor, as a matter of law. See Bush v St. Clare's Hospital, 82 NY2d 738, 739 (1993). Where the moving party has established an entitlement to summary judgment, the burden shifts to the party opposing the motion, to demonstrate by admissible evidence, the existence of a factual issue requiring trial. Zuckem a n v City of New Yo& , 4 9 NY2d 557 (1980). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v Ceppos, 46 NY2d 223 (1 978). In "determining whether

summary judgment is appropriate, the motion court should draw all reasonable inferences in
favor of the nonmoving party and should not pass on issues of credibility". Garcia v J.C. Du~izan, Inc., 180 AD2d 579,580 (1st Dept 1992), citing w
v Ropog Cab Cow., 153 AD2d

520, 52 1 (I st Dept 1989).
Applying such principles to this case, defendant's motion for summary judgment is denied as defendant failed to establish entitlement to judgment of dismissal as a matter of law. Specifically, defendant seeks dismissal of the complaint on the exclusive basis that this case is barred by Civil Rights Law Article 8. Defendant maintains that despite plaintiffs claims of fraud

and conversion, this action is, in essence, one for the breach of a promise to many, which cannot
be maintained as provided by such statute. However, from the voluminous submissions before

the Court, it is unclear whether Civil Rights Law Article 8 actually bars this case, as the facts pertaining to the statute's applicability are in dispute.

If there was a contract to many between the parties as argued by defendant in the moving
papers (a fact which is both disputed and conceded by each of the parties at various portions of

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the record before the Court), any such contract would be void as against public policy since defendant was married at the time of the parties' relationship, and admittedly, plaintiff was aware of defendant's marriage. See Lowe v Ouim, 27 NY2d 397,400 (1971)(an agreement to marry is void as against public policy where one of the parties is already married to a third party and it is not saved by the fact that the married individual contemplates divorce and that the agreement is conditioned on the procurement of the divorce). Moreover, any property given by plaintiff to defendant in contemplation of such contract to marry, would be barred from recovery, since such property would have been given during the course of an illicit relationship. k a v Wicke, m n

2 16 AD2d 272 (2d Dept 1995)broperty given in contemplation of marriage is barred from
recovery where party already married to another). In the moving papers, however, defendant failed to establish as a matter of law that the parties in fact entered into a contract to marry and that the property, which is the subject of this lawsuit, was given by plaintiff to defendant in Contemplation of such marriage. Moreover, there is a triable issue of fact as to whether the subject property was actually given to defendant in the course of the parties' illicit relationship as merely gifts, or obtained by defendant based on false pretenses, through a scheme of fraud and/or conversion, as alleged by plaintiff. The Court notes that issues of credibility are not to be determined on a motion for
summary judgment.

See Garcia v J.C, Duman. Inc., 180 AD2d at 580.

The evidence submitted on this issue is conflicting and warrants that this case go to trial. For example, the complaint and plaintiffs deposition testimony suggest that defendant proposed marriage to plaintiff on several occasions and that plaintiff refused. Plaintiff testified that she had no interest in marrying defendant. [Plaintiffs Affidavit in Opposition, Exh. 4, Plaintiffs
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had no interest in marrying defendant. [Plaintiffs Affidavit in Opposition, Exh. 4,Plaintiffs Deposition Transcript C`Plaintiff s EBT"), at 22-23, lines 23-25; 1-2; at 25, lines 22-25]. This is contradicted, however, by plaintiffs testimony that she was willing to be "engaged" to defendant in order to "pacify" him. [Plaintiffs EBT, at 29, lines 2-17; at 37-38, lines 12-25, 1-4; at 142, lines 4-61, Additionally, defendant's ex-wife testified that she received a phone call from plaintiff who was seeking the return of the Town Car,and during such call, plaintiff informed her that plaintiff was having an affair with defendant and that m engagement "party" was being planned for plaintiff and defendant. [Plaintiffs Affidavit in Opposition, Exh. 3, Catherine Gibbons' Deposition Transcript, at 95-96]. Defendant's deposition testimony reveals that he claims not to have ever proposed marriage to plaintiff. [Plaintiffs Affidavit in Opposition, Exh. 5 , Defendant's Deposition Transcript ("Defendant's EBT"), at 1.52-53,269-70, 370,407-08,4371. Defendant maintains that he never planned to divorce his wife and he regarded his relationship with plaintiff as a "fling." [Defendant's EBT, at 63, lines 8-9; at 269, lines 12-21; at 370 lines 3-6; at 408, lines 1-2; at 437,

lines 1-81. Defendant regards the Town C r as a gift from plaintiff, while plaintiff claims that the a
Town C r was bought by defendant for her use and ownership. As defendant failed to prove a
entitlement to judgment as a matter of law, and factual issues exist, defendant's motion for

summary judgment is denied.
Plaintiffs cross-motion to amend the complaint, to add a cause of action for conversion
of a telescope is denied. Movant failed to include a copy of the proposed amended pleadings, as

required, & Goldner Trucking Corn. v $toll Packing Corn., 12 AD2d 639 (2nd Dept 1960); Sirohi v Lee, 222 AD2d 222 (1" Dept 1995). Further, such claim for conversion may be time6

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barred, as it is undisputed that the relationship between the parties ended in December 2002, and the statute of limitation on a claim for conversion is three years.

CPLR

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