Tompkins v Jackson

[*1] Tompkins v Jackson 2009 NY Slip Op 50319(U) [22 Misc 3d 1128(A)] Decided on February 3, 2009 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2009
Supreme Court, New York County

Shaniqua Tompkins, Plaintiff,

against

Curtis Jackson, Defendant.



104745/2008

Carol R. Edmead, J.

MEMORANDUM DECISION

In this unfortunate tale of a love relationship gone sour, plaintiff seeks lifetime financial support from her ex-boyfriend and the father of her child, "50 Cent," based on promises to take care of her for the rest of her life when he "made it big" in the entertainment industry.

By virtue of this decision, plaintiff's claim to half of defendant's multimillion dollar estate and future income, [set at no less than $50 million dollars] is dismissed and this saga comes to an end.

Factual Background

The parties began dating in 1995, when plaintiff was in college and defendant was recently paroled and unemployed. Defendant began living with the plaintiff on Sutphin Boulevard, Queens, New York.[FN1] In 1996, while plaintiff was pregnant with defendant's son, Marquise, plaintiff relocated to Far Rockaway, Queens. It was at this time that the parties allegedly entered into the oral agreement that is the subject of this lawsuit.

Plaintiff testified at her deposition that in September 1996, "a month before" Marquise was born, when the parties were "in the bedroom," defendant began saying, "how much he loved me. And he said he always appreciated me sticking by him and supporting him in everything he does, and bearing with him. And that just to bear with him, [physically, financially, and mentally] because when he makes it big, he will take care of me for the rest of my life, and everything he owns will be mine, just as well as his." (EBT, pp. 179, 195-196, 232). This meant, "when he made it big or received a lucrative recording contract, he would - - I would own everything that he owned." (EBT, p. 214). According to plaintiff, defendant reiterated that "even if we weren''t going to be together, we were down for life. That no matter what, whether we're together or not, that he would always take care of me. He said he would never see me fall. . . ." (EBT, pp. 235-236). [*2]

In response, plaintiff told defendant that she "will support" him "until you get it together," including taking care of the children and the house, and "be[ing] there for [defendant] mentally . . . and financially. . . ." As far as the parties being "equal partners," defendant said that when "he made it big, that I would be equal partners in all of his earnings. . . . We never talked about losses. . . ." (EBT, pp. 197-199; 216-217).

Plaintiff later purchased for the defendant a diamond ring and a watch, which were "part of the makeup of him being a rapper." (EBT, pp. 249-250). In 1997 or 1998, defendant wanted to establish an entertainment company and "needed the money to incorporate it." Thus, plaintiff "thought about Hollow Point Entertainment - -and Rotten Apple Records," and "gave it [the money] to him." (EBT, pp. 251-252). Plaintiff "financially supported" defendant and their joint venture agreement, by providing him money to pay for studio time, transportation to the studio, digital audio tapes ("DATs"), reels, and tattoos on his body (EBT, pp. 200, 205, 257). Plaintiff stated that the "company would be half mine" (EBT, p. 254).[FN2]

Between the years of 1997 through 2000, the parties lived in defendant's grandmother's house, where plaintiff cooked, cleaned, laundered the parties' clothing, and purchased groceries for defendant and their son.[FN3]

In May 2000, defendant was nearly fatally shot in front of his grandmother's house.[FN4] Plaintiff slept on a chair by defendant's side while he was hospitalized for 18 days (EBT, p. 258). Upon defendant's discharge, the parties relocated to plaintiff's mother's house in Stroudsburg, Pennsylvania, where plaintiff nursed defendant back to health over the course of five months: He couldn't do anything. . . . He [had] a metal rod in his right hip. He couldn't walk. He couldn't feed himself . . . I would have to make him food, blend the food, make him breakfast. . . . He couldn't go to the bathroom by himself. He couldn't wash himself . . . I would escort him. Put the walker in front of him, and you know, escort him to the bathroom. . . . I would have to massage his feet. That comforted him until he went to sleep. . . . I did it because I loved him, and wanted him to be happy. . . .[FN5]

(EBT, pp. 262-265).

In October 2003, the parties moved to their own apartment at Shawnee-On- Delaware, [*3]Pennsylvania, where they resided for the next four years.[FN6]

After defendant signed a music deal in 2003, defendant began "pay[ing] some of the bills and giving plaintiff money he earned from his tours (EBT, pp. 87-89). At some later point, defendant gave plaintiff an ATM card, a "G-Unit Touring" American Express card, and blank checks drawn against the "Rotten Apple" record company plaintiff "helped him incorporate." (EBT, pp. 90, 94, 97). As to other sources of income, plaintiff also "flipped a couple of properties" in 2004.[FN7]

In 2003, defendant purchased a mansion in Connecticut.[FN8] The purpose of the mansion was to provide "room and board" and "a safe and secure place for him" and other artists to record music since "defendant didn't like recording at studios because people were trying to kill him." (EBT, p. 112). Plaintiff visited defendant in Connecticut on the weekends and during summers (EBT, p. 114). However, plaintiff declined defendant's invitation to move to Connecticut, as she did not want to be "left alone," further away from her family and friends while he was "always on tour." (EBT, p. 115).

Later in 2005, defendant forced plaintiff to execute a release of life story rights to the movie "Get Rich, or Die Tryin" (EBT, p. 276).[FN9]

Since defendant "always was telling [plaintiff] to purchase a house," plaintiff hired a real estate agent to begin looking for a house in New York (EBT, pp. 115, 134-135). In 2005, the parties moved to Bayside, as a "way station until [plaintiff] found a house." (EBT, pp. 117, 120).

In August or September 2006, after the agent notified plaintiff of two houses in the Dix Hills area, plaintiff and her two children "went to see the house on Sandra Drive and another house. And I told her I liked the house on Sandra Drive." (EBT, p. 134).

In December 2006, "[r]ight before the closing" and while in the Bayside apartment, defendant and plaintiff entered into an "an oral agreement." (EBT, pp. 135-136). Defendant agreed that "the house would be in [plaintiff's] name. He was going to pay for it [in] cash, it [*4]would have no mortgage, and it would be in my name" (EBT, p. 136). Defendant "said this to numerous people, not just me. . . ." (EBT, p. 137). This conversation came about because "as time went on, I [saw] that he wasn't honoring what he said. So I said, "Everything else is in your name, so I want the house in Dix Hills to be in my name." According to plaintiff, defendant said "You act like. . . I would never take care of you. I promised you I would always take care of you." When plaintiff responded, "Well if you feel that way, then the house in Dix Hill should be in my name," to which defendant replied, "Okay, done." All plaintiff had to do "was just show up at the closing." (EBT, pp. 138-139).

On December 19, 2006, defendant sent plaintiff an email message, stating: Neek it realy hert me to hear you say you think I wouldn't Take care of you. . . You can have the house I'll have them put it in your name And I will give you money every month it dosent matter to me . . . .[FN10]

The night before the closing, defendant "came home" to stay in the city and asked to meet plaintiff in his hotel room "to talk"; plaintiff declined, insisting to talk after the closing. Plaintiff stated that she "went along with certain things," because she "loved him" but, she had been "fed up" with "his nonsense" of beating her and "mess[ing] around with other women."

On the day of the closing, January 5, 2007, all the parties to the closing and plaintiff appeared at the closing, except for defendant. When it came time to sign the closing documents, plaintiff "stopped the whole procedure," took defendant's representative who had power of attorney Alan Hock, out of room, insisting that the house was "supposed to be in" plaintiff's name. When she called defendant, he instructed plaintiff to, "Put Alan on the phone. I'm going to have him put the house in your name." Mr. Hock took the phone, and said "Wait a minute, Curtis. Wait, wait, wait." Then Mr. Hock went into his office, closed the door, and came out only to advise plaintiff that "we're going to do it. Don't worry about it. We'll do it. Let's just do it this way first. And then a couple of weeks after, we'll just" retransfer the house into plaintiff's name. (EBT, pp. 148-149). The closing continued, and plaintiff was given the keys.

The following day, defendant expressed to plaintiff that he "want[ed] to be with her" and wanted permission to "move into the house." Plaintiff said "okay."

Following the closing, plaintiff and her grandmother packed all of plaintiff's and defendant's belongings for the parties' move into the house in Dix Hills, New York ("the Dix Hills home").

Over the next two weeks, defendant drove Marquise and plaintiff's daughter to school every day. However, defendant moved out because plaintiff and defendant "got into a physical altercation where he hit [plaintiff][FN11] . . .plaintiff was upset because the house was supposed to be in [plaintiff's] name, and he - - at the last minute, at the closing, he changed his mind."

In 2008, defendant filed a petition in Family Court to establish his child support obligations and later, a petition in Housing Court to evict plaintiff from the Dix Hills home. The Family Court directed that defendant pay $6,700 in child support, which includes a housing [*5]allowance. The Housing Court granted defendant possession of the Dix Hills home, and issued a warrant of eviction against plaintiff.

Thereafter, plaintiff commenced the instant action seeking, inter alia, a temporary stay of her eviction, which this Court granted, and damages for breach of contract, unjust enrichment, and specific performance.[FN12] During the pendency of the stay, the Dix Hills home was destroyed by a fire (deemed suspicious by authorities), rendering the stay moot.

Defendant's Motion [FN13]

Defendant now seeks summary judgment, arguing that plaintiff failed to establish a prima facie case for any of her claims in the complaint.

Defendant maintains that plaintiff's breach of contract claim, which is actually a claim for palimony, fails because (1) no oral contract ever existed, (2) the purported contract is barred by the Statute of Frauds and Statute of Limitations, and (3) the purported contract lacks the requisite specificity, mutual assent, and definition.

Essentially, plaintiff was defendant's girlfriend from 1996 and then "turned into my son's mom. . . . We slept together from time to time, but she was just my son's mom." (EBT, p. 185). Defendant denies having any conversation with the plaintiff wherein he agreed to take care of her for the rest of her or his life, and states that if he so intended he "would have married her." (Def. Aff., ¶¶4, 7; EBT, p. 79). Defendant admitted at his deposition that he loved plaintiff at the time their child was born (EBT, p. 79), but did not consider her his wife or did not discuss marrying her (EBT, p. 80). In any event, plaintiff did not and cannot establish that she performed under the alleged agreement (Def. Aff., ¶8). Defendant points out that he never maintained joint accounts or held jointly titled assets with plaintiff (Def. Aff., ¶28). Defendant did not advise plaintiff that he would give her any money from his record deals, any money he made as a recording artist, any sharing of his profits, or dividing his earnings (EBT, pp. 73, 92, 93). While [*6]touring, defendant "hardly spent any time with the plaintiff and certainly did not maintain a home for the plaintiff to clean"; instead, defendant hired a full-time caretaker and professional cleaning crews to maintain his mansion in Connecticut (Def. Aff., ¶33). Defendant also denies having lived with plaintiff in the Bayside apartment; instead, defendant lived in the Connecticut mansion since 2003, with his assistant (EBT, p. 6). Defendant also denies that plaintiff ever supported him financially, and that prior to his success, his expenses were minimal.

According to defendant, "all I wanted for her was for her to develop a career . . . I provided the plaintiff with seed money so she could invest in real estate, asking nothing in return." While in Bayside, defendant encouraged plaintiff to obtain gainful employment, and negotiated a book deal between his publishing company, G-Unit Books, for plaintiff to write a book. G-Unit Books agreed to pay plaintiff $40,000 upon signing and $40,000 upon completion, but plaintiff failed to perform her duties under this agreement, and never wrote the book. (EBT, p. 217).

Defendant also denies entering into any joint venture agreement with the plaintiff related to Rotten Apple Records, which he did not form until November 2001. Defendant also did not discuss Hollow Point with plaintiff (EBT, p. 191).

According to defendant's entertainment attorney, defendant's "overall business philosophy spurns the involvement of individual equity partners or individual investors in any way."

Defendant also denies that "plaintiff was responsible for [his] support even while [he] was recovering after [he] was shot as [he] had ample resources at that time. . . ." (Def. Aff., ¶52). Defendant also denies assaulting or coercing plaintiff into signing the release.

Moreover, defendant attests that "We" did not "agree" to anything concerning the Dix Hills home, but instead, "made it clear to the plaintiff that while I would, in fact, purchase the Dix Hills house, I would not put title in her name." (Def. Aff., ¶57). Defendant never discussed giving plaintiff the Dix Hills house (EBT, p. 235). Defendant purchased the home in Dix Hills to "create a more comfortable space" for his son, who had been sharing a bed with his 16-year-old sister (EBT, pp. 221-222). With respect to the "email," defendant did not remember sending it and was not sure that he wrote it, but the reference to the comment that plaintiff "can have the house," "[m]ost likely" referred to "Bayside." (EBT, pp. 253, 254, 259). Defendant stated that "If I was saying that at that point she was staying in Bayside, so I would have been making reference to [the] Bayside" apartment (EBT, p. 260). Defendant was "pretty sure" that he was not referring in any way to the Dix Hills house (Id.). Although defendant never intended to purchase the Bayside apartment, he "was acknowledging that . . . [she] could have the house that she's actually staying in, which is the place in Bayside because [defendant] paid the carrying cost . . . and [the cost for] all the furniture in there. That's what I was making reference to." (EBT, pp. 262, 263). He was referring to the Bayside apartment because plaintiff "expressed being uncomfortable staying there with her new boyfriend. It's uncomfortable for him. He can't comfortably come to my house." (EBT, p. 264). However, defendant later testified that "when I make mention to the actual house, either it was me speaking of the house in Bayside or the house in 2 Sandra Drive, Dix Hills between the two of those places. . . ." (EBT, p. 283).

In support of dismissal, defendant argues that the alleged oral agreement violates the Statute of Frauds as it obligated defendant to support plaintiff for the rest of her life, and its terms cannot be performed within one year or before the end of a lifetime. [*7]

As plaintiff testified that the oral agreement was made in her bedroom in 1996 and that it was never honored by defendant, plaintiff's cause of action sounding in breach of contract is also barred by the six-year Statute of Limitations.

In addition, it cannot be ascertained whether defendant's alleged promise "to take care of" plaintiff means that he agreed to provide plaintiff with shelter, a car, a sum certain, clothing, medical bills or to simply be there emotionally for her. Thus, his alleged promise is far too indefinite to support a contract claim. Further, plaintiff failed to indicate any actions by defendant either at the time the alleged oral contract was made or subsequent thereto, evincing his assent to the agreement. It is incredible that two then unemployed, penniless, twenty-one year olds would make such an oral contract.

Although an issue of fact exists as to whether the Book Contract required a joint effort on the part of defendant, plaintiff's claim for specific performance of the agreement to jointly write a book should be dismissed.

Likewise, plaintiff's claim for constructive trust also fails. Plaintiff is collaterally estopped from prosecuting this claim where plaintiff unsuccessfully raised constructive trust as a defense in a prior proceeding. In that proceeding, the Housing Court found that defendant is the owner of the property, that plaintiff obtained occupancy by a license from defendant, and that defendant's revocation of the license terminated her occupancy rights. Thus, plaintiff cannot relitigate the issue of constructive trust. Nor is there any evidence which would indicate either a constructive trust or agreement to convey real property. Even if plaintiff successfully argued that her non-marital relationship with defendant was a confidential one, she cannot prove that she made any transfer in reliance of a promise; she never owned the Dix Hills home and never contributed one penny to its upkeep.

Additionally, plaintiff's quantum meruit claim lacks merit. While defendant disputes that plaintiff performed any specific services for him that were outside of her own self-imposed general obligations to care for her children or that he accepted such services, plaintiff failed to submit any proof that she expected any compensation or the reasonable value of such services. And, plaintiff cannot attempt to overcome the Statute of Frauds by seeking recovery in quantum meruit. Additionally, even if defendant may have been an incidental beneficiary of defendant's household efforts, a claim does not lie in quantum meruit where plaintiff cooked and cleaned for her children and herself. That defendant realized any benefits does not mean plaintiff's efforts were expressly for defendant.

Nor can plaintiff's unjust enrichment claim survive the Statue of Frauds. While plaintiff has no proof that she expended any sums for recording time, tattoos, clothes and the like for defendant, any such expenditures were made because she valued defendant's company and found it rewarding to do while in a relationship with him. Good conscience does not dictate restitution to plaintiff.

Even if plaintiff's action is timely, any equitable relief plaintiff seeks is barred by the doctrine of laches, since plaintiff failed to raise these issues in a timely fashion.

Also, plaintiff failed to allege any misrepresentation or failure to disclose on defendant's part, any justifiable reliance on her part, or plead with any specificity, to support her claim for fraud. Further, a cause of action for fraud does not arise when the only alleged fraud relates to a purported breach of contract. [*8]

As to plaintiff's claim related to the alleged joint venture, the Court has already rejected such claim and denied plaintiff's request for specific performance thereof. Plaintiff did not contribute "a penny" towards the establishment of Rotten Apple Records; "At that point" defendant had $80,000 from a record deal. (Def. EBT, pp. 181-182). He admits that he "probably said something" to plaintiff about this company, but "never partnered up on any type of business or anything." (Def. EBT, pp. 182-183). In any event, plaintiff's sole allegation that the parties established Rotten Apple Records fails to establish an intent to be associated as joint venturers, or that she contributed financial resources, effort, knowledge, or skill to the creation of Rotten Apple Records or any mutual control or management of same. Nor is there any proof of an agreement to share in the profits or losses of Rotten Apple Records.

Finally, plaintiff's assault and battery claim arising from an incident in 2005 is barred by the one-year Statute of Limitations.

Plaintiff's Opposition

Plaintiff argues that an issue of fact exists as to whether the parties entered into the oral agreement. Defendant admitted that he had been working on becoming a recording artist since before 1997. Plaintiff would not have agreed to work while defendant, who was not monogamous with plaintiff, wrote music at home unless there was an agreement.

Defendant's testimony also indicates that there was no need for him to discuss the division of profits between 1996 to 2000, since the parties were still cohabitating, and because he could not secure any lucrative recording contracts. Defendant testified, "It was no reason to discuss [the sharing of profits] so far from the reality of the situation we was in. . . . After 2000, and we moved to the Poconos, it was no real - - even a thought at that point that I would actually be a success as an artist. The record company that I was actual[ly] with . . . stopped answering my phone calls" (Def. EBT, pp. 91-93).

Further, defendant testified that plaintiff performed housekeeping and domestic services, remained with him at the hospital for more than two weeks, and "helped" him during the period of his recovery. In her affidavit in opposition, plaintiff adds that she transported defendant to and from Pennsylvania and New York for physical therapy, and shopped, cleaned, and puréed food for defendant during his recovery. After his recovery, plaintiff continued to launder defendant's clothes, pay household expenses, and cook for defendant. Plaintiff's averments are supported by the affidavit of plaintiff's sister, Sufrenna Nathari.

Further, an issue of fact exists as to whether defendant lived in Bayside or in Connecticut up until 2007. The lease for the Bayside apartment was in the defendant's name. The Family Court clearly stated that he paid the rent, $2300/monthly for that apartment, and that the house in Connecticut was not purchased for defendant to live in, but was purchased in furtherance of his professional image or "fa§ade."

In further support, plaintiff submits the affidavit of her grandmother, Naomi Ginn, wherein she attests that she would often visit the parties when they resided in Bayside, Queens; which was clean and organized. Ms. Ginn observed an entire closet of defendant's clothes, including more than 10 pairs of sneakers and jeans that she packed in preparation for the move to Dix Hills. Defendant told her that he "preferred to live in the Bayside apartment rather than a big mansion." To Ms. Ginn's knowledge, plaintiff and defendant always lived together between 1996 and 2007. Ms. Ginn's statements are also supported by plaintiff's sister. [*9]

As to the Dix Hills home, defendant testified at the Landlord-Tenant proceeding that he and plaintiff "had a conversation about that, you know, because she-at that point she was - this is when she was starting to really get into her boyfriend at that point and she actually wanted to have the house to herself and I was like - that I'm not obligated to give you a house." Defendant also testified at his deposition that he was unsure as to whether any closing documents concerning the Dix Hills home were prepared in plaintiff's name. The defendant also admits that the e-mail referencing the defendant putting the house in plaintiff's name could in fact refer to the Dix Hills house. The Court should note that the e-mail is dated December of 2006 and the contract of sale for the Dix Hills home is dated September of 2006. Thus, the only house the defendant could have been referring to was the one in Dix Hills. He could not have been referring to the Bayside apartment because it was leased and not his to convey. On this issue, Ms. Ginn further attests that defendant said that he "will put the house in her name." He was referring specifically to the Dix Hills property. He also stated that he always thought that he and plaintiff "would be together" and that he was going to stay there every night as a family.

There are also issues of fact concerning the creation of Rotten Apple Records and Hollow Point Entertainment. Plaintiff testified at her deposition that she paid the incorporation fees for both Rotten Apple Records and Hollow Point Entertainment.

Additionally, issues of fact exist as to the circumstances surrounding the execution of the Life Rights Agreement that the plaintiff entered into with Paramount Pictures. Plaintiff contends that defendant assaulted her and forced her to sign away her life rights to the production of "Get Rich or Die Tryin."

Also, an issue of fact exists as to whether defendant was obligated to cooperate with the plaintiff in writing a book about the defendant's life through her perspective. Although G-Unit Books, Inc. was the party to the contract, G-Unit Books, Inc. is owned by defendant and he would have had first-hand knowledge of the circumstances surrounding the publishing of any literary work concerning his life.

Lastly, documents demonstrate that plaintiff took a trip with defendant to Morocco.

The evidence also establishes that the domestic and homemaking services rendered by plaintiff to defendant were non-sexual in nature and separable from the parties' relationship. Thus, the Statute of Frauds does not apply to the 1996 agreement.

Nor is plaintiff's claim barred by the six-year Statute of Limitations, as plaintiff claims that the material breach of the parties' agreement occurred on or about 2005. Thus, plaintiff commenced her action within the six-year statutory time limit. Consequently, defendant's affirmative defense based upon the doctrine of laches should also be denied.

Further, plaintiff's constructive trust claim is not barred by collateral estoppel or by the alleged failure to establish a transfer made by plaintiff in reliance of a promise. At the Landord-Tenant proceeding, plaintiff's counsel raised the subject of constructive trust only within the context of informing the Housing Court that the instant action was commenced alleging constructive trust as a cause of action against defendant and that the holdover proceeding be transferred and consolidated with this instant action. All the briefs relating to that matter made no reference to constructive trust; instead, the predominating defense was that plaintiff was not a licensee.

Further, as noted by this Court, plaintiff need not have an interest in the Dix Hills [*10]property prior to its transfer in order to make out a claim for constructive trust. Plaintiff expended time and efforts looking for a suitable home within a one million-dollar budget as directed to by defendant. Plaintiff spent two years house shopping and even negotiated the purchase price of the Dix Hills home. Plaintiff detrimentally relied upon defendant's promise that he would place title to the Dix Hills home in her name. And, under case law, the Court should take a less restrictive view of this element of constructive trust.

Plaintiff's cause of action in quantum meruit should be upheld. Caselaw holds that "the fact that an express contract is unenforceable because of its failure to comply with the Statute of Frauds does not mean that quasi-contractual recovery for the reasonable value of services rendered is, therefore, necessarily unavailable." Plaintiff rendered domestic and homemaking services with the expectation of being compensated in the form of sharing in the fruits of defendant's success in the entertainment industry pursuant to the parties' express oral agreement.

And, because defendant benefitted from plaintiff as a result of the domestic and homemaking services she rendered at his bequest pursuant to their agreement, the claim of unjust enrichment should also be upheld.

Plaintiff established a claim for specific performance of the parties' oral joint venture agreement to establish Rotten Apple Records, in light of her payment of the incorporation fee. She also helped defendant secure a key individual from another recording company to work for Rotten Apple Records. The plaintiff paid for studio time, DATs, and food, clothing and transportation for any employee of Rotten Apple Records.

Defendant's Reply

There is no showing of a definite articulated and enforceable agreement. An oral contract between two lovers concerning their living arrangements and housekeeping responsibilities is subject to careful inspection, as those are things which are normally done as a matter of regard and affection - not for money.

In this case, plaintiff failed to set forth the basic terms necessary to provide meaning to the agreement.[FN14] The purported "terms" of the alleged oral agreement are ambiguous, indefinite, and lacking in specificity. The contract is incapable of performance and enforcement. Defendant's simple and brief comments about writing music do not evidence the existence of a contract between the parties.

That defendant leased and paid the rent for the Bayside apartment while plaintiff was unemployed does not amount to evidence that he lived in the apartment with them.

As to the Statute of Limitations, defendant never transferred title to assets to

plaintiff's name, and by her own admission, he maintained a tight control over his [*11]

money and gave the plaintiff money when he felt like it. Thus, any breach by defendant of the alleged oral contract occurred the day after he entered into it in September 1996, more than 11 ½ years ago.

Plaintiff's contention that defendant breached the alleged agreement is wholly arbitrary. Plaintiff provides no explanation of the alleged breach, and instead simply declares that defendant breached the agreement at some unarticulated point during 2005.

While plaintiff does not actually allege that the parties orally contracted with each other in connection with the purchase of the Dix Hills home (or any other property), any

agreement for the conveyance of real property must be in writing, and since there is no written agreement any such contract would be barred by the Statute of Frauds. Further, the contract in this case, as sworn to by the plaintiff, by its terms, cannot be performed before the end of a lifetime and, as a result, the Statute of Frauds requires that the contract be in writing. Thus, even if the defendant told the plaintiff that he would put title into her name, that is not an enforceable obligation and it does not give rise to any cause of action.

Nor does plaintiff establish that she made a transfer in reliance of any promise or argue that the defendant was unjustly enriched so as to support her constructive trust claim. Plaintiff did not sign the sales contract, and never maintained any interest in the subject property. Plaintiff's claim that she shopped around for the house is strained because the only evidence the plaintiff submitted was a short email string from December 2004 concerning a house in Melville. The emails show that it was actually the defendant's personal manager, Laurie Dobbins, who was responsible for communicating with the realtor and making all necessary arrangements. That plaintiff was afforded an opportunity to look at the house she would be living in to see if she liked it does not evidence the transfer of an interest in the property nor any form of unjust enrichment on defendant's part. Nor has plaintiff detrimentally relied on any promise made by the defendant or suffered any injury, but lived cost-free for one and one-half years.

Plaintiff's unsupported allegation that she paid the incorporation fees for Rotten Apple Records and Hollow Point Entertainment, (which is irrelevant to any of the causes of action), contradicts the sworn statement and documentation establishing that defendant's entertainment attorney paid this fee in 2001.

Further, the circumstances surrounding the execution of the "Life Rights Agreement" has no bearing on any of plaintiff's causes of action. Even if plaintiff were forced to sign the agreement, that fact does not support her claim that the parties had an oral agreement.

And, whether defendant was obligated to cooperate with her to write the book is irrelevant, as there is no claim to enforce the book contract. Indeed, the very existence of a written agreement providing for specific payments to the plaintiff for services rendered contradicts any notion that the parties had an oral contract to share their income and assets equally or that all of defendant's property was supposed to be considered plaintiff's property.

Since 2002, the defendant has been touring all over the world. That plaintiff took only one trip with him to Morocco indicates that plaintiff could never prove that the parties entered a contract which called for her act as a social escort nor that plaintiff performed her obligations under any such agreement.

Analysis

It is well settled that where a defendant is the proponent of a motion for summary [*12]judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]). On a defendant's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the plaintiff (Kesselman v Lever House Rest., 29 AD3d 302, 816 NYS2d 13 [1st Dept 2006] citing Goldman v Metropolitan Life Ins. Co., 13 AD3d 289, 290, 788 NYS2d 25 [1st Dept 2004]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of 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 a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562).

The deposition testimony and documentary evidence before this Court establish that none of plaintiff's causes of action have merit. As such, plaintiff's complaint is dismissed, in its entirety, with prejudice.

Breach of Contract

According to plaintiff's affidavit, the parties entered into an express oral agreement "on or about September of 1996" wherein in exchange for plaintiff "providing the defendant homemaking and domestic services while we lived together, the defendant would devote his time to becoming a successful recording artist and share with me equally all his earnings from that success." Plaintiff's affidavit provides as follows: I agreed to continue to live with him, maintain his home, perform homemaking and domestic services for him as well as support him mentally, emotionally and financially to the best of my abilities. I also agreed to accompany him to social and other events. . . . Defendant agreed that he would vigorously pursue a professional recording career with the understanding that our combined efforts could result in the accumulation of substantial wealth and assets that we would divide and share equally.

Plaintiff admitted that she was in love with defendant when they entered into this agreement in September 1996 (EBT, p. 206), after all, "He was a corner crack dealer parolee. He didn't have anything. . . . So I was going to be with him whether he was 50 Cent, with a hundred million dollars, or Curtis Jackson, working for sanitation, making $50,000 a year. I would have been with him, because I loved him. It wasn't about him saying that he would give me everything [*13]he had. It's when you love a person, you don't - - it's not about the monetary. If you're a prostitute, then it's a monetary thing. We were two people in love with each other."

While statements such as these demonstrate loving devotion and loyalty, these same statements undermine plaintiff's breach of contract and quantum meruit claims for half of defendant's wealth.

"As to personal services between unmarried persons living together or unmarried persons whose actions flow out of mutual friendship and reciprocal regard, there is very little difference" (Trimmer v Van Bomel, 107 Misc 2d 201 [Sup. Ct. New York County 1980]). "An implied contract to compensate for those things which are ordinarily done by one person for another as a matter of regard and affection should not, under these well established principles, be recognized in this state" (Id.).

Such a claim in the context of a cohabiting relationship is against New York's public policy (as evidenced by the 1933 abolition of common-law marriages) Soderholm v Kosty, 177 Misc 2d 403, 676 NYS2d 850 [NY Just. Ct. 1998] citing Morone v Morone, 50 NY2d 481, 488, 429 NYS2d 592, supra ).

Suits involving "unmarried persons living together who thereafter seek financial recovery frequently run afoul of the theory that a contract founded upon an agreement to live together as man and wife will not be enforced (Civ. Rts. Law, s 80-a)" (Trimmer v Van Bomel, 107 Misc 2d 201, supra ). The Court recognizes that services rendered by one paramour for the other which are non-sexual in nature and do not arise directly from such a relationship, may be deemed separable, and form the basis for compensation (Id., citing Matter of Gordon, 8 NY2d 71, 202 NYS.2d 1; 6A Corbin on Contracts, s 1476, p. 622; 15 Williston on Contracts, §1745; Restatement of Contracts s 589). However, this is not such a case.

Here, the purported agreement was made when plaintiff and defendant were living together, albeit sporadically, as lovers, and by its terms, required the defendant to support plaintiff for the rest of his and her life, even if the parties broke up and ceased cohabitating. The services for which plaintiff seeks compensation arise out of the nature of the relationship of the parties to one another. The services involved - to devote time and attention to the defendant, to act as companion, to accompany him to social events and perform household duties - are of a nature which would ordinarily be exchanged without expectation of pay (see Trimmer v Van Bomel, supra citing Rubinsteen v Klevin, 261 F 921, Robinson v Munn, 238 NY 40, 43; Matter of Adams, 1 AD2d 259, 149 NYS2d 849, aff'd 2 NY2d 796, 159 NYS2d 698; Matter of Basten, 204 Misc 937, 126 NYS2d 459; Matter of Mulderig, 196 Misc 527, 91 NYS2d 895).

As Judge Meyer noted in Morone v Morone (50 NY2d 481, 488, 429 NYS2d 592,488, 429 NYS2d 592 [1980]): As a matter of human experience personal services will frequently be rendered by two people ..... because they value each other's company, or because they find it a convenient or rewarding thing to do. For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. . . . There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.[*14]

Providing loving care and assistance to her boyfriend and the father of their son before and after he was shot and seriously injured, does not transform her relationship to a one founded upon contract. To conclude otherwise would transform the parties' personal, yet informal relationship to that of a marriage.

In any event, even assuming the purported oral agreement is recognized in New York, as the party seeking to enforce a contract, plaintiff bears the burden to establish that a binding agreement was made and to prove the terms of the contract (Allied Sheet Metal Works, Inc. v Kerby Saunders, Inc., 206 AD2d 166, 619 NYS2d 260 [1st Dept 1994]). This plaintiff failed to do.

Before a court will impose a contractual obligation, it must ascertain that a contract was made and that its terms are definite (Charles Hyman, Inc. v Olsen Indus., Inc., 227 AD2d 270, 642 NYS2d 306 [1st Dept 1996] citing Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, 548 NYS2d 920, cert. denied 498 US 816, 111 SCt 58]). Here, it is clear that the alleged oral agreement to "take care of" plaintiff for the rest of her life, contains no specifics as to the manner in which defendant was obligated to "take care of" the plaintiff, and, assuming this included the tender of monies to plaintiff, no specifics as to the frequency and amount of payments.

Therefore, the alleged oral agreement to take care of plaintiff for the rest of her life in exchange for her promise to perform household duties and take care of the parties' children is unenforceable. And consequently, any claims based on such oral agreement, including specific performance of same, an accounting of all of defendant's assets, mandamus relief, and declaratory relief, lack merit, and are dismissed.

Quantum Meruit.

As to quantum meruit, this Court declines to recognize a right to receive compensation under an implied contract for domestic services rendered between these parties. Although there is an issue as to whether plaintiff and defendant lived together continuously throughout the period of their relationship, plaintiff maintains that she provided homemaking and cleaning services for defendant because she loved and cared for him. As the services plaintiff performed are of a nature which would ordinarily be exchanged without expectation of pay, an implied contract to compensate for such services cannot stand (see Trimmer v Van Bomel, 107 Misc 2d 201, supra ).

In any event, the Statute of Frauds precludes such oral agreement. General Obligations Law §5-701(a)(1), provides that: Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime.

It is clear that defendant's alleged oral promise to take care of plaintiff for the rest of her life was incapable of performance before the end of the plaintiff's lifetime, and therefore, her claim is barred by the Statute of Frauds (Melwani v Jain, 281 AD2d 276, 722 NYS2d 145 [1st Dept 2001] [alleged oral agreement, under which defendants were to pay plaintiff a royalty [*15]during his lifetime, and then pay it to his heirs in perpetuity, was correctly held to be unenforceable under the Statute of Frauds as incapable of performance within one year or of complete performance before the end of plaintiff's lifetime; Williams v Lynch, 245 AD2d 715 [3d Dept 1997] [agreement for plaintiff to sell her own house, move into defendant's home and pay one half of the expenses associated therewith, in exchange for defendant's promise that she could have use of that home for the rest of her life barred by the Statute of Frauds]; McCoy v Edison Price, Inc., 186 AD2d 442, 588 NYS2d 566 [1st Dept 1992] [agreement which was to last for as long as defendant remained in business, was incapable of performance within one year, rendering it voidable absent a writing signed by the party to be charged]; Harrington v Murray, 169 AD2d 580, 564 NYS2d 738 [1st Dept 1991] [defendant's oral agreement to take care of former wife "for the rest of her life in the style to which she had become accustomed, in exchange for her promise to introduce and otherwise promote him socially in order to aid him in business and politics" and to provide her with a home and half of the profits resulting from her efforts, unenforceable pursuant to General Obligations Law § 5-701(a)(1)]).

As to defendant's alleged agreement to transfer title of the Dix Hills home to plaintiff, the Statute of Frauds also bars such agreement. At the time plaintiff was living in Bayside, defendant executed the sales contract for the Dix Hills home in September 2006. Defendant thereafter sent plaintiff an email indicating that she "can have the house" and that he would have "them put it in your name." At first blush, it appears that defendant intended to purchase the Dix Hills home for the plaintiff and place title to the home in plaintiff's name. However, this sole email, in the absence of any other related correspondence, is insufficient to create plaintiff's interest in the Dix Hills home, and cannot be enforced against defendant.

General Obligations Law §5-703 provides as follows: 1. An estate or interest in real property . . . cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.2. A contract for . . . the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.

It cannot be disputed that the alleged creation of plaintiff's alleged interest in the Dix Hills property implicates General Obligations Law § 5-703 subdivision 1, since subdivision 2 involves the sale of real property, and there is no claim that defendant promised to sell the Dix Hills home to plaintiff. Instead, plaintiff's claim in regard to the Dix Hills home centers on defendant's promise to give, or as subdivision states, grant, assign, or surrender his interest in the subject property to plaintiff. Thus, the issue is whether defendant's promise in the email constitutes a sufficient "writing," signed by defendant so as to satisfy the Statute of Frauds. Although quoted in the context of a sale of real property, the Court in Vista Developers Corp. v VFP Realty LLC (17 Misc 3d 914 [Sup. Ct. Queens County 2007]), cited John E. Theuman, J.D., Satisfaction of Statute of Frauds by E-Mail, 110 ALR5th 277, § 2, para 2, as follows regarding emails and the Statute of Frauds: [*16] The explosive growth of electronic mail (or e-mail') as a method of both personal and business communication, often to the exclusion of conventional written documents, has raised the question whether e-mail messages allegedly indicating an agreement between the sender and receiver can constitute writings satisfying the requirements of the Statute of Frauds. Courts addressing this question have largely declined to state any general rule, and have instead determined on a case-by-case basis whether the particular e-mail messages asserted by a party as evidencing an agreement satisfy the elements of the applicable Statute of Frauds provision, an approach which may imply acceptance of the general proposition that e-mails can satisfy the Statute of Frauds in a proper case. Thus, at least one court has held that e-mail messages relating to a proposed sale of real property were sufficient to prevent a breach of contract action from being dismissed on Statute of Frauds grounds where the messages were collectively sufficient to show that the parties had reached an agreement as to the essential terms of a land sale contract (§ 3[a]). Other courts, in rejecting e-mail messages offered as evidence of an alleged contract, have pointed to such particular elements as the failure of those messages to state key elements of that contract such as price, quantity, or duration, the fact that they did not come from the particular party charged with breach of the alleged contract, language indicating that the messages reflecting ongoing negotiations, rather than a completed agreement, or a simple lack of clear evidence of offer and acceptance (§ 3[b])."Vista Developers Corp., [e-mail exchanges between president of prospective purchaser of real property and representative of prospective vendors did not constitute a "signed writing," for purposes of statute of frauds]).

Even accepting as true that the defendant transcribed and transmitted the email message to plaintiff, it is settled law that "before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained. Otherwise, a court, in intervening, would be imposing its own conception of what the parties should or might have undertaken, rather than confining itself to the implementation of a bargain to which they have mutually committed themselves. Thus, definiteness as to material matters is of the very essence in contract law

(Martin Delicatessen v Schumacher, 52 NY2d 105, 109, 436 NYS2d 247 [1981]). Similarly, the promise to "give" plaintiff "the house," and place same in plaintiff's name, in and of itself, is insufficient on its face, this mere agreement to agree fails to identify the specific house to which defendant referred, or the date on which such transfer was to take place. Even though parol evidence may be considered to address any ambiguities as to the identity of the property, it is not to be used to satisfy the Statute of Frauds when, the writing itself is plainly insufficient on its face (Ashkenazi v Kelly, 157 AD2d 578, 550 NYS2d 322 [1st Dept 1990], citing Scheck v Francis, 26 NY2d 466, 311 NYS2d 841 [1970]). Further, is a well-established rule that delivery of the deed or the conveyance in writing, with intent to transfer title is required and the absence thereof will render the attempted transfer of ownership ineffective (see Goodell v Rosetti, 52 AD3d 911, 859 NYS2 770 [3d Dept 2008]).

Notably, at the time of the transmittal of the email, defendant owned several properties, and had entered into a contract to purchase the Dix Hills house. Therefore, it cannot be said the email constitutes a "conveyance in writing" of an interest in the Dix Hills home pursuant to [*17]General Obligations Law § 5-703 subdivision 1. The court notes that a review of two homeowners' policies related to the Dix Hills home reveals that defendant is the named insured on the policy covering the real property and structure of the Dix Hills home, while plaintiff is the named insured on the policy covering the personal property and loss of use only. (Unfortunately, the bill for the policy naming plaintiff as the insured shows that the payment for same was due by May 5, 2008, a scant three weeks before the fire, and that the policy was cancelled).

Therefore, the oral agreement to convey defendant's title interest in the Dix Hills home is unenforceable, as violative of the Statute of Frauds, and all claims related thereto are dismissed.

Constructive Trust

Although the Statute of Frauds does not constitute a defense to a constructive trust, the evidence in this case fails to establish that plaintiff is entitled to an order imposing a constructive trust over the Dix Hills home, or the proceeds from the insurance policy covering the home. To impose a constructive trust, there must be a showing of "(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" (McGrath v Hilding, 41 NY2d 625 [1977], citing Sharp v Kosmalski, 40 NY2d 119, 121, 386 NYS2d 72, 75 [1976]). The law of constructive trusts is not confined to reconveyance situations, and in taking "a less restrictive view," the transfer concept may extend to instances where funds, time and effort are contributed in reliance on a promise to share in the result (Hira v Bajaj, 182 AD2d 435, 582 NYS2d 197 [1st Dept 1992]).

However, here, there is no evidence that plaintiff contributed any efforts or money toward the purchase, maintenance, or improvement of the Dix Hills home. All plaintiff did was "show up" at the closing and thereafter, lived in the Dix Hills home without any documented efforts towards purchasing or improving it.

The cases to which this Court previously cited to permit plaintiff to proceed with discovery to establish her constructive trust claim are no longer applicable due to the evidence now existing in this case, where there has been no showing that plaintiff contributed any finances toward the purchase, improvement or maintenance of the real property (cf. Hira v Bajaj, 182 AD2d 435, 582 NYS2d 197 [1st Dept 1992] [plaintiff provided money towards the purchase of the subject property pursuant to defendant's agreement to hold title as plaintiff's agent]; Lester v Zimmer, 147 AD2d 340, 542 NYS2d 855 [3d Dept 1989] [plaintiff provided financial support for defendant during the period of construction of the subject property, contributed money toward the cost of materials and actually participated in building the house]; Mendel v Hewitt, 161 AD2d 849, 555 NYS2d 889 [3d Dept 1990] [plaintiff advanced $29,000 for the purchase and some $50,000 for improvements]; Artache v Goldin, 133 AD2d 596, 519 NYS2d 702 [2d Dept 1987] [in addition to domestic services, plaintiff rendered business services in accordance with the agreement; contributed more than $60,000 derived from the sale of real property that she owned and proceeds from a personal injury action, toward the parties' joint economic needs and toward the down payment for the purchase of the house, which served as the family residence]).

Plaintiff's reliance on Gottlieb v Gottlieb, 166 AD2d 413, 560 NYS2d 477 [2d Dept 1990]) is misplaced. In Gottlieb, plaintiff commenced an action to declare the rights of the parties with respect to a shareholders' agreement and to impose constructive trusts upon the decedent's interest in his business and upon his home. Plaintiff alleged that (1) she and the decedent "jointly shopped for, negotiated for and purchased the land upon which the said home [*18]was constructed," (2) she and the decedent "jointly planned" and "supervised" the "physical layout and construction of the said home," (3) she "contributed financially to the improvement of, maintenance and upkeep of the said home," and (4) she invested her labor and money in reliance upon the decedent's promise that he would put the deed in both of their names. The Court held that the allegations regarding plaintiff's contribution of money and work toward the purchase of the land and the construction of the home were sufficient to satisfy the "transfer in reliance" element of the constructive trust claim.

That plaintiff herein shopped for the Dix Hills home and possibly negotiated its price is plainly insufficient to bring this case within the scope of Gottlieb. Again, plaintiff did not provide any money towards the purchase of the Dix Hills home, which was paid for solely by defendant; nor was plaintiff expected or required to. Plaintiff did not financially support the defendant during the period she was in Bayside allegedly searching for this home. It does not appear that the Dix Hills home was in need of any construction; thus, it cannot be said that plaintiff contributed any finances or labor toward any construction or improvement of the Dix Hills home. Although plaintiff performed domestic services, there is no indication that plaintiff rendered any business services for the defendant.

Therefore, plaintiff's claim for constructive trust of all defendant's assets, including the Dix Hills home and the insurance proceeds, is insufficient to defeat the Statute of Frauds defense to the oral agreement to place title of the home in plaintiff's name, and is hereby dismissed.

Unjust Enrichment

This court similarly dismisses any claim sounded in "unjust enrichment." Although courts have equitable powers to create an implied contract based in equity, it must be shown that a defendant was (i) enriched; (ii) that the enrichment was at plaintiff's expense and (iii) that equity and good conscience require defendant to return the money or the property to the plaintiff (see 22A N.Y.Jur.2d, Contracts, § 518). In the instant case, it cannot be said, given the overall situation and the relationship between the parties, that defendant was enriched, or, even if he were, that equity and good conscience would require restitution to the plaintiff. The record discloses that defendant expended sums for dinners, groceries, movies, clothes for plaintiff, and the like on countless occasions. Additionally, goods, services and financial advances are often rendered between two live-in lovers, not for remuneration but because they value each other's company or because they find it caring, convenient or rewarding to so do. Given the usual "give and take" ordinarily associated with persons cohabiting with one another, and the giving and receiving by both here of love, affection, gifts and the like, it cannot be said that equity and good conscience cry out for fiscal adjustment" (Soderholm v Kosty, 177 Misc 2d 403, supra ).

That defendant may have derived benefit from plaintiff's acts does not mean that he was unjustly enriched. It is undisputed that the defendant provided ample economic benefits for the plaintiff over the years: he gave plaintiff money and gifts, shared in the payment of rent and utilities in Pennsylvania and Bayside, bought furniture for the plaintiff, paid her auto lease at times, paid the expenses for plaintiff's mother's funeral, gave the plaintiff's grandmother money so she could purchase and furnish an apartment, and paid plaintiff's Macy's credit card.

The Court notes that plaintiff and her daughter moved into the Dix Hills house for a couple of months prior to the date the defendant commenced the Family Court proceeding. The plaintiff locked in a higher standard of living for herself and her daughter (both living with the [*19]parties' son) than she had previously enjoyed in her Bayside apartment. Finally, as it is undisputed that the defendant has paid for everything in connection with the house, and that the plaintiff never made any financial contribution toward the purchase or maintenance of the house, it defies logic to even suggest that the defendant has been unjustly enriched.

It cannot be ignored that the Family Court Order permits plaintiff to continue receiving child support payments from the defendant and that she will continue to do so on a monthly basis for many years to come. These payments permit plaintiff to provide a home equal in value to that of the Dix Hills home, not only for Marquise, for whom defendant is solely responsible, but for plaintiff and her own daughter, without working. In other words, plaintiff and her daughter will reap the benefits of living in a home at the expense of defendant for several years to come

Joint Venture Agreement

To establish a claim of breach of a joint venture, plaintiff must sufficiently set forth facts to establish her contribution of property, skills, or control over the venture or a sharing of possible financial losses (see Langer v Dadabhoy, 44 AD3d 425, 843 NYS2d 262 [1st Dept 2007]). "An agreement to distribute the proceeds of an enterprise upon a percentage basis does not give rise to a joint venture if the enterprise does not represent a joinder of property, skills and risks (Steinbeck v Gerosa, 4 NY2d 302, 175 NYS2d 1 [1958]). "The ultimate inquiry is whether the parties have so joined their property, interests, skills and risks that for the purpose of the particular adventure their respective contributions have become as one and the commingled property and interests of the parties have thereby been made subject to each of the associates on the trust and inducement that each would act for their joint benefit. By plaintiff's own account, the parties did not discuss the sharing of losses (see Steinbeck v Gerosa, supra ). Further, there is no evidence that plaintiff contributed any skills, or had control of any aspect of any joint venture, including that of Rotten Apple Records. Therefore, plaintiff's claims for breach and specific performance of the joint venture (10th and 13th causes of action, respectively), and accounting are dismissed.

Fraud

To establish fraud, plaintiff must establish that "(1) defendant made a representation as to a material fact; (2) such representation was false; (3) defendant[ ] intended to deceive plaintiff; (4) plaintiff believed and justifiably relied upon the statement and was induced by it to engage in a certain course of conduct; and (5) as a result of such reliance plaintiff sustained pecuniary loss" (Ross v Louise Wise Services, Inc., 8 NY3d 478 [2007]; Global Minerals and Metals Corp. v Holme, 35 AD3d 93, 824 NYS2d 210 [1st Dept 2006]). There is no evidence that defendant, at the time he allegedly promised to assign the title to the Dix Hills home to the plaintiff, never intended to honor such promise. Further, a cause of action for fraud does not arise when the only alleged fraud relates to a breach of contract and here, plaintiff's claim for fraud derives from defendant's purported oral agreement to place the title of the Dix Hills home in her name.

The Court also notes that a party cannot avoid the bar of the Statute of Frauds by recharacterizing the claim as one for fraud (Santaro v Jack of Hearts Carpet Co., Inc., 6 Misc 3d 1024, 800 NYS2d 356 [Sup Ct. Onondaga County 2005] citing Gora v Drizin, 300 AD2d 139, 140 [1st Dept 2002] [oral contract claim barred by GOL § 5-703 (3) and plaintiff not permitted to avoid this bar by "recharacterizing" the claim as one for fraud]; General Obligations Law § 5-703 ). Plaintiff cannot avoid the Statute of Frauds by arguing that the alleged oral [*20]promise was a misrepresentation of fact and that its claim is based on fraud (Nelson Bagel Bakery Co., Inc v Moshcorn Realty Corporation, 289 AD2d 69 [1st Dept 2001]). Where a contract itself is void under the Statute of Frauds it cannot be used as a predicate for an action in fraud (Lilling v Slauenwhite, 145 AD2d 471, 472 [2nd Dept 1988], citing Dung v Parker, 52 NY 494 [1873]). "Whatever the form of the action at law may be, if the proof of a promise or contract, void by the [S]tatute [of Frauds] is essential to maintain it, there can be no recovery" (Dung v Parker, supra , at 497). Therefore, plaintiff's claim for fraud is likewise dismissed.

Assault and Battery

Plaintiff's cause of action for "assault and battery" is governed by the one-year statute of limitations of CPLR 215(3). Therefore, such claim, based on events that occurred in 2005 in connection with the signing of the release of life rights, is time-barred, and dismissed.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by defendant for summary judgment dismissing the complaint is granted, in its entirety, and the complaint is hereby dismissed. And it is further

ORDERED that all stays and/or injunctions issued herein are hereby lifted and vacated; and it is further

ORDERED that defendant serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: February 3, 2009_____________________________________

Hon. Carol Robinson Edmead, J.S.C.

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED that the motion by defendant for summary judgment dismissing the complaint is granted, in its entirety, and the complaint is hereby dismissed. And it is further

ORDERED that all stays and/or injunctions issued herein are hereby lifted and vacated; and it is further

ORDERED that defendant serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court. Footnotes

Footnote 1: Defendant claims that the parties lived at his grandmother's house from 1996 through 2000, with plaintiff returning to her grandmother's house from "time to time" (EBT, pp. 20, 26). Defendant denied ever living in plaintiff's apartment in Far Rockaway, but just "stayed over" (EBT, pp. 74, 75).

Footnote 2: Defendant testified that he became employed by Jam Master Jay Records, which provided him money for the "recording process." (EBT, p. 33).

Footnote 3: Defendant claims that his grandmother performed these services for him (EBT, pp. 36, 38, 57).

Footnote 4: Plaintiff states that she began working in 1997 as a court-appointed escort for victims of domestic violence, but quit after defendant's repeated confrontations with her concerning a man at her job who took an interest in her. Plaintiff later worked as a toll booth operator in 1999, until May of 2000, when defendant was shot.

Footnote 5: Defendant testified that plaintiff "helped some" and brought food to him from "time to time," and that plaintiff's mother washed his clothes (along with plaintiff) (EBT, pp. 116, 118-119, 121).

Footnote 6: Plaintiff states, after defendant's health was restored, plaintiff resumed working at brief assignments through a temporary agency and then, in 2003, as an executive assistant at the "Weekend Vibe" television show, hosted by Bryce Wilson. Plaintiff ceased working at "Weekend Vibe" because defendant "had a problem with [her] working with" the host.

Footnote 7: Defendant contends that he provided plaintiff the "seed money" to invest in real estate.

Footnote 8: Defendant testified that he received a $300,000 advance for signing a deal in 2003 and purchased a Hummer which plaintiff drove since he was touring "from city to city"; he did not give plaintiff any money from this advance (EBT, pp. 169-172). He purchased the mansion to live in, with no intent for plaintiff or their son to live there (EBT, p. 172). In 2004, defendant also purchased a home in Valley Stream, where defendant's grandmother and other family members reside (EBT, p. 191).

Footnote 9: Defendant denies forcing plaintiff to sign this release, and acknowledges that plaintiff did not receive any money from the movie deal (EBT, pp. 200, 203-204). According to plaintiff, defendant also agreed to assist plaintiff in writing "a book from [plaintiff's] perspective" and defendant "was going to tell [her] what to say" (the "Book Contract") (EBT, p. 278). It was defendant's obligation to find a writer, after which the parties would "write the book together [and] [s]plit the proceeds, along with our other hundreds of millions of dollars that we haven't split yet." (EBT, pp. 278, 282). However, defendant "reneged on his part of the deal. . . . (EBT, p. 281).

Footnote 10: For ease of reading, the Court refrained from inserting "sic" throughout this text.

Footnote 11: Plaintiff stated that defendant "would hit" her "when something didn't go his way," causing her to experience headaches and seek medical attention (EBT, 129, 133).

Footnote 12: The amended complaint lists 15 causes of action in support of plaintiff's claims for lifetime financial support and more than $50 million damages: (1) breach of oral agreement, (2) imposition of a constructive trust and an accounting, (3) partition, (4) fraud, (5) quantum meruit, (6) unjust enrichment, (7) specific performance, (8) a declaration of the parties' rights under the oral agreement, (9) a peremptory mandamus (Black's Law Dictionary, 8th Ed.), seeking an absolute and unqualified command to the defendant to do the act in question, i.e., convey the Dix

footnote 12, cont'd.

Hills property and insurance proceeds emanating from the destruction of said property, (10) breach of joint venture agreement regarding Rotten Apple Records, (11) fraud, (12) specific performance of the parties' oral agreement, (13) specific performance of joint venture agreement, (14) an accounting of defendant's income and investments, and (15) assault and battery.

Footnote 13: By separate motion, defendant previously moved for order of preclusion resolving all claims in favor of the defendant based on plaintiff's failure to produce discovery, or in the alternative, for an order precluding plaintiff from submitting any documentary evidence at trial in support of her claims that was not previously produced. The Court adjourned this motion, sine die, to be determined in conjunction with this summary judgment motion. Plaintiff opposed dismissal, contending that defendant received documents pursuant to this Court's April 2008 Order, failed to attempt to first resolve his discovery dispute with plaintiff concerning the Court's May 2008 Order, failed to memorialize the document demands made at plaintiff's deposition, and failed to provide discovery demanded by plaintiff. In light of the determination of the instant motion, defendant's previous motion is moot.

Footnote 14: Defendant questions, by "way of example, how much domestic service and housekeeping was the plaintiff supposed to provide? Was there a certain number of hours or were there certain tasks that the plaintiff was to complete? . . . Was plaintiff required to go on tour with the defendant and perform services for him on the road? What efforts and abilities was she required to contribute? How much money, if any, was plaintiff required to contribute and what were the remedies, penalties or arrangements in place in the event plaintiff did not fulfill her obligations? . . . Was the defendant obligated to give the plaintiff one-half (½) of everything he ever earned for any particular duration? . . . When was the defendant supposed to pay the plaintiff; how often; in what form? . . . When asked at her deposition about when she was supposed to get the money pursuant to the terms or the agreement, plaintiff answered, "that's what I was wondering" (Plaintiff EBT, p. 184)."