Callahan v Parker

[*1] Callahan v Parker 2006 NY Slip Op 51563(U) [12 Misc 3d 1193(A)] Decided on June 21, 2006 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 21, 2006
Supreme Court, New York County

Brian Callahan, Plaintiff,

against

Dana Clyburn Parker, Defendant.



115417/03



Daniel E. Clement, Esq.

220 Fifth Avenue, 13th Floor

New York, NY 10001

Attorneys for Plaintiff

Kevin T. Conway, Esq.

Dorfman, Knoebel & Conway, LLP

51 North Broadway

Nyack, NY 10960

Attorneys for Defendant

Rolando T. Acosta, J.

Background [FN1]

Plaintiff and defendant met in September 2001 through an internet dating service and began dating in October 2001. According to defendant, plaintiff always represented himself to be divorced not in the process of divorce nor in the process of separation. Plaintiff eventually proposed marriage to defendant in July 2002 in South Carolina.

Plaintiff moved to New York City and defendant began to spend a significant amount of time in the NYC apartment, and they held themselves out as engaged to friends, family and co-workers. Defendant eventually moved out of the apartment in June 2003 because she suspected that plaintiff was dating other women. In September 2003, plaintiff served defendant with a summons and complaint asserting four causes of action. The first cause of action is for the return of the 3.41 carat diamond engagement ring plaintiff gave defendant in contemplation of marriage; in the second cause of action for unjust enrichment, plaintiff seeks $40,000 as the value of the ring; the third cause of action for conversion, seeks the return of plaintiff's personal property, including antique lamps, candle holders and a brass box; and, the fourth cause of action seeks $10,000 as the value of the converted property.

According to defendant, she first learned sometime after late September 2003 that plaintiff had not been divorced. Indeed, it is undisputed that plaintiff received a judgment of divorce nisi in Massachusetts on June 3, 2002, which did not become absolute until September 2, 2002.

Defendant asserted four counterclaims: assault based on a May 2003 incident in which plaintiff allegedly grabbed, pushed and screamed at her and physically restrained her; the second [*2]is for false imprisonment based on a jet ski incident in the Bahamas where plaintiff allegedly confined her to the jet ski against her will; the third for the intentional infliction of emotional distress; and the fourth for breach of promise to marry under South Carolina law.

Analysis

Defendant's motion for an order pursuant to CPLR § 3212 dismissing the complaint is granted solely to the extent of dismissing the first and second causes of action. According to Massachusetts law, plaintiff was not divorced in July 2002 when he proposed marriage to defendant and gave her a diamond ring. Ross v Ross, 385 Mass. 30, 430 N.E.2d 815 (1982). As the Ross court stated: Notwithstanding the fact that a judgment nisi is a judgment of divorce, G.L. c. 208, s 21, we hold that a couple is not divorced until the judgment becomes absolute. "Divorce is the legal dissolution of a valid existing marriage ...." J. F. Lombard, Family Law s 1440 (1967). In Massachusetts a judgment nisi is not a dissolution of the marriage. Pine v. Pine, 323 Mass. 524, 83 N.E.2d 171 (1948). Sparhawk v. Sparhawk, 114 Mass. 355 (1874). Thus, a second marriage contracted during the interval between the judgment nisi and the judgment absolute is void. Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561 (1942).

Id. at 35.

Inasmuch as plaintiff was not divorced at the time that he gave defendant the ring, his "causes of action under Civil Rights Law § 80-b to recover gifts in contemplation of marriage that did not occur [must be dismissed] on the ground that plaintiff was married at the time the gifts were made, and it does not avail plaintiff that the divorce action was pending at the time." Raji v. Nejad, 256 AD2d 12 (1st Dept. 1998); see also Lowe v. Quinn, 27 NY2d 397 (1971); Leemon v. Wicke, 216 AD2d 272 (2nd Dept. 1995). As the Court of Appeals noted in Lowe, 27 NY2d at 400-401, when one of the parties is married, an agreement to marry is void as against public policy: An engagement ring "is in the nature of a pledge for the contract of marriage" (Beck v. Cohen, 237 App. Div. 729, 730) and, under the common law, it was settled at least in a case where no impediment existed to a marriage that, if the recipient broke the "engagement," she was required, upon demand, to return the ring on the theory that it constituted a conditional gift. (See, e.g., Wilson v. Riggs, 267 NY 570, affg. 243 App. Div. 33; Beck v. Cohen, 237 App. Div. 729, supra.; Goldstein v. Rosenthal, 56 Misc 2d 311; Jacobs v. Davis [1917], 2 K.B. 532; see, also, Note, 24 ALR 2d 579.) However, a different result is compelled where, as here, one of the parties is married. An agreement to marry under such circumstances is void as against public policy (see, e.g., Haviland v. Halstead, 34 NY 643; Williams v. Igel, 62 Misc. 354; Davis v. Pryor, 112 F. 274), and it is not saved or rendered valid by the fact that the married individual contemplated divorce and that the agreement was conditioned on procurement of the divorce. (See, e.g., Smith [*3]v. McPherson, 176 Cal. 144; Leupert v. Shields, 14 Col. App. 404; Noice v. Brown, 38 N. J. L. 228; see, also, 49 Harv. L. Rev. 648.

The above analysis does not apply to plaintiff's causes of action for conversion inasmuch as there is no indication in the record that the property was given to defendant in contemplation of marriage.

Plaintiff's cross-motion is granted solely to the extent of dismissing the third and fourth counterclaims (intentional infliction emotional distress and breach of contract to marry under South Carolina law). With respect to intentional infliction of emotional distress, it cannot be said that the complained off conduct in this case is so "outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Murphy v. American Home Prods. Corp, 58 NY2d 293, 303 (1983).

As for the breach of contract to marry claim, Civil Rights Law § 81states that it is unlawful for a party to assert such a claim even if the cause of action arose outside the state.[FN2] Accordingly, the fourth counterclaim is dismissed as well.

Plaintiff, however, has failed to establish his entitlement to summary judgment dismissing the first counterclaim alleging assault. An assault is the intentional placing of another in apprehension of imminent harmful or offensive contact. Bastien v. Sotto, 299 AD2d 432 (2nd Dept. 2002); PJI 3:2. Here, defendant alleged that plaintiff grabbed, pushed and screamed at her and physically restrained her. Since plaintiff has failed to present any evidence in admissible form to the contrary, he has failed to establish his prima facie right to summary judgement. In any event, there are issues of fact that should go to trial on this claim.

Plaintiff has likewise failed to establish his entitlement to dismissal of the second cause of action alleging false imprisonment. To sustain a claim of false imprisonment plaintiff must prove that the defendant intended to confine plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged. Martinez v. Schenectady, 97 NY2d 78 (2001); PJI 3:5. Here, plaintiff has also failed to submit evidence in admissible form to establish his prima facie right to summary judgment. Viewing the facts in the light most favorable to defendant, Kesselman v. Lever House [*4]Restaurant, ___ AD2d ___, 2006 WL 1147258 (1st Dept. 2006), defendant alleged sufficient facts to prevent summary judgment. That the false imprisonment allegedly took place on a jet ski while on vacation in the Bahamas is a credibility issue to be decided at trial.

Based on the foregoing defendant's motion is granted to the extent of dismissing the first and second causes of action. And plaintiff's motion is granted to the extent of dismissing the third and fourth counterclaims.

Dated: June 21, 2006___________________________

Rolando T. Acosta, J.S.C. Footnotes

Footnote 1: This decision was edited for publication.

Footnote 2: Although this Court will not impose sanctions at this juncture, frivolous litigation may subject defendant to sanctions in the future. See 22 NYCRR 130.1-1.