Addarich v Ford

Annotate this Case
Download PDF
Addarich v Ford 2012 NY Slip Op 31365(U) May 15, 2012 Sup Ct, New York County Docket Number: 111852/11 Judge: Joan M. Kenney 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. SCANNED ON 512212012- [* 1] . .... - . . . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Index Number : I 11852/2011 ADDARICH, KIM 8 vs FORD, PATRICK Sequence Number : 001 DISMISS The following papers, numbered 1 to L, on thl8 rnotlon were mad NoUur of MotlonlOrder to Show Cause Anrworlng Affldrvlb Exhlbltm - -Affldavltl- -'~VNL& , f oh& h,dC;nu& IN O W r q INo($). /o-/ ,q INo(@. Exhlblb Rsplylng Amdavlta Upon the foregoing papen, It It ordered that this rnotlon le MOTION IS DECIDED IN ACCORDANCE WITH THE AlTACHED MEMORANDUM DECISION Dated: 9 JOAN M. KENNEY ..................................................................... CASE DISPOSED 0DENIEO 2. CHECK AS APPROPRIATE: .............. MOTION IS:I GRANTED J 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ 0SEITLE ORDER DO NOT POST $ NON-FINAL DISPOSITION ! C GRANTEDIN PART l 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] DECISION AND ORDER Index Number.: 111S52/11 Motion Seq. No.: 001 -against- cF 1 Recitation, as required by CPLR 2219(a), of the pap s co siL e G r e B o f t h i s p r e answer motion to dismiss. MAY 2 2 2012 Papers Numbered In this action, defendant Patrick Ford, seeks an Order, pursuant to CPLR 32 11(a)(l) and CPLR 321 l(a)(7), dismissing the complaint. fictaal Background Both parties have co-habited wt each other for many years. They have one daughter ih together and have never married. Plaintiff was employed in the financial services industry for over two decades prior to the hiatus described in this claim. Plaintiff claims that she used to earn a salary in excess of $200,000.00 per year. Defendant is a bartender, and has been employed at Smith & Wollensky's restaurant in the County, City, and State of New York for over twenty-six years. Plaintiff claims that defendant has earned, and continues to earn, several hundreds of thousands of dollars in unreported income in addition to his regular salary at Smith & Wollensky's. Plaintiff alleges that most of the unreported income that defendant receives comes [* 3] from cash tips given to the defendant at his place of employment. ih On or about January 1,2009, the parties separated and plaintiff rented an apartment wt the parties daughter. From about January 2009 to about May 2010 plaintiff paid for all of their daughter s expenses, except for their daughter s school tuition and some domestic services that were paid by defendant. In May, 20 10 the parties reconciled and moved in together with their daughter, renting an apartment on East 54* St. (the apartment). Several months later plaintiff alleges that at the specific insistence and request of the defendant, the parties entered into an oral agreement that defendant would pay plaintiff $100,000.00 for a period of one year, and in exchange, the plaintiff would sign up for and receive unemployment benefits, stay at the apartment, not seek further employment in the financial services industry, take care of their daughter, and perfom such other further services for the defendant including, but not limited to, taking care of the household budget, cook, clean and maintain the apartment, oversee and administer the household budget, and do all other household chores that used to be performed by the h l l time servant employed by the defendant (the IStoral agreement). On or about June 1,201 1, the parties separated and defendant moved out of the apartment. It was at this time that plaintiff claims she demanded payment of the $100,000.00 that oral agreement. Plaintiff claims defendant allegedly promised to pay in accordance with the lSt that defendant again orally admitted that he owed plaintiff $100,000.00 and, on or about June 6, 201 1, gave plaintiff a personal check in the amount of $30,000.00 (on which defendant allegedly wrote guilt money ) which plaintiff claims defendant orally agreed that said monies were to be applied towards the monies he owed pursuant to the oral agreement (the Znd agreement). When 2 [* 4] plaintiff went to deposit the check, it is undisputed that defendant placed a stop payment request on the check. Plaintiff further alleges that defendant broke into her apartment and, without permission, took plaintiffs diamond ring valued at $30,000. The ring had been appraised at $30,000 at the request of the defendant in November 20 10. Plaintiff alleges that the defendant refused, and continues to rehse, to return the ring to her. Additionally, since June 20 1 1, plaintiff claims that ih she has been demanding payment from defendant in accordance wt the oral agreement. Plaintiff asserts that defendant refused, and continues to refuse, to pay any part of the monies due to their oral agreements. On October 17,201 1 plaintiff commenced the within action seeking: (1) payment of $100,000.00 pursuant to the oral agreement (latcause of action); (2) damages for defendant's conversion of the diamond ring (2ndcause of action); (3) payment of $30,000.00 towards payment of the $100,000.00 in accordance with the 2"d oral agreement (3rdcause of action); (4) damages for defendant's alleged fraud by inducing plaintiff to enter into the oral agreements when defendant had no intention to pay (4* cause of action); and ( 5 ) damages for defendant's unjust enrichment in that defendant benefitted from plaintiffs labor and other household services without paying for said work (5* cause of action). Arguments Defendant contends that the action must be dismissed for failure to state a cause of action, pursuant to CPLR 32 11(a)(7) and pursuant to CPLR 32 11(a)( 1), based on documentary evidence. Defendant argues that: (1) the contract claims are barred by the Statute of Frauds; (2) the conversion claim fails because defendant w s entitled to the ring as it w s an engagement ring in a a 3 [* 5] t contemplation of marriage and the marriage never took place; (3) the fraud claim is impermissibly duplicative of the contract claims; and (4)the unjust enrichment claim fails because it merely seeks to recovery for personal services rendered in the course of a romantic relationship, and is therefore against public policy. Plaintiff argues that: (1) the contract for compensation for services rendered is not barred by stake, or case law, because it was to be performed within one year; (2) the unjust enrichment claim should not be dismissed because defendant used plaintiff for services that he used to get from a maid; (3) the conversion cause of action should not be dismissed because defendant intentionally deprived the plaintiff of her property when he took the ring, which was not an engagement ring; and (4)defendant s 321 l(a)(l) motion is inadequate because it lacks any qualifying documentary evidence. Discussion When deciding whether or not a complaint should be dismissed pursuant to CPLR 321 l(a)(7), the complaint must be construed in the light most favorable to the plaintiff, and all factual allegations must be accepted as true, limiting the inquiry to whether or not the complaint states, in some recognizable form, any cause of action known to our law (see, World Wide Adjustment Bureau et al., v Edward S. Gordon Company, Inc., et al., 1 1 1 A.D.2d 98,489 N.Y.S.2d 23 1 [ 1st Dept, 19851). In assessing the sufficiency of the complaint, this court must also consider the allegations made in both the complaint and the accompanying affidavit, submitted in opposition to the motion, as true and resolve all inferences which reasonably flow therefrom, in favor of the plaintiff (Joel v. Weber, 166 A.D.2d 130,569 N.Y.S.2d955 [lst Dept, 19911). A motion to dismiss is made pursuant to CPLR 32 11(a)(7), which allows such a motion 4 [* 6] on the ground that the pleading fails to state a cause of action. The sufficiency of a pleading to state a cause of action generally depends upon whether or not there is substantial compliance with CPLR 3013, which requires that statements in a pleading be sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action. Further, every pleading question should be approached in the light of CPLR 3026 requiring that pleadings shall be liberally construed and that defects shall be ignored if a substantial right of a party is not prejudiced. Thus, the burden is placed upon one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced. A contract is an agreement by which the parties undertake a legal obligation to do or to refrain from doing a particular thing. Although the parties must usually intend to enter into a contract, the outward manifestation of their intentions is suffuient for a binding contract. The requirements of a contract, in general are: a. an offer; b. an acceptance; c. consideration or some substitute therefor; d. legal capacity; e. legal subject matter; and f. other special requirements such as e.g., certain contracts must be in writing under a statute of frauds. New York General Obligations Law 5 5-701 (NYGOL) requires certain agreements to be in writing, to the extent that they are void, unless the agreement, or some note or memorandum thereof, was in writing and subscribed by the party charged therewith, or by his lawful agent. Where the contract comes within the provision of this statute, therefore, it will be a defense that it was not in writing, as required (Harmon v. AZPed, 243 N.Y. 473, 154 N.E. 314 [1926]). In an action for a breach of contract, the plaintiff must prove all of the following elements: the making of a contract (offer by plaintiff, acceptance by defendant); the terms of the contract; consideration; performance by the plaintiff; breach by the defendant; and damages to 5 [* 7] plaintiff. Here, defendant moves to dismiss the first cause of action for breach of contract by claiming that the plaintiff is barred by the statute of frauds. Defendant's argument is that since plaintiff allegedly began working for him on June 1,2010 and allegedly did not ask for payment until June 6,20 11, the plaintiff did not meet the statute of frauds writing requirement for contracts taking over a year to complete. It is unnecessary to even address defendant's argument on the 1st cause of action, because it is not yet ripe for review. Before the contract can be examined for statute of frauds deficiencies, it must first be determined that there was, in fact, a contract for employment services formed at all. This is a question of fact, as plaintiff claims there were oral agreements and defendant avers there was none. In fact, defendant insists that they only contracted to marry, while plaintiff insists there was only a contract for employment. If the trier of fact finds that there was a legally binding oral contract for plaintiff to work for defendant, then the statute of frauds issue will be ripe for review. Defendant moves to dismiss plaintiffs 2"d cause of action for conversion based on his assertion that he was entitled to possession of the ring because it was an engagement ring and they never got married. Plaintiff alleges that it was a gift and therefore she was entitled to its possession. This precludes dismissal of this cause of action at this juncture. A conversion action may be based on a wrongful taking of property, or its wrongful withholding. Conversion deprives plaintiff of the possession of property which s h e owns, and to which s h e is entitled, Plaintiff must either be the owner of the property at the time of conversion or have an existing right to its 6 [* 8] immediate possession. (Clement# v. Ytwris, 8 1 N.Y. 285). Here, plaintiff factually disputes that the ring was an engagement ring at all. oral Defendant also moves to dismiss the 3 d cause of action, for breach of the 2 d agreement to pay $30,000.00 towards the lstoral agreement to pay $100,000.00. Plaintiff claims that defendant s action of putting a stop payment on the $30,000.00 check is a breach the promise to pay for the services that plaintiff provided. Again, this is a factual issue as defendant disputes plaintiff s claim that the check was for payment towards the $100,000.00 plaintiff claims defendant owed her and disputes ever entering into any agreement to pay for any services. The elements of a cause of action for fraud are a representation concerning a material fact, falsity of that representation, scienter, reliance and damages. Plaintiff must show not only that she actually relied on the misrepresentations, but also that such reliance was reasonable. Where a party has the means to discover the true nature of the transaction by the exercise of ordinary intelligence, and fails to make use of those means, he cannot claim justifiable reliance on defendant s misrepresentations. (Stuart Silver Associates, Inc. v. Baco Dev. Corp., 245 A.D.2d 96,98-99, 665 N.Y.S.2d 415,417 [la Dept. 19971). While plaintiff alleges that defendant s representation that he would pay her the $100,000.00 to work at home, knowing he had no intention to pay, defendant claims plaintiff was watching the child and doing housework because she wanted to; not because of an agreement. Clearly, there is a dispute as to what agreementhepresentations were made between the parties at all. Here, plaintiff claims, in essence, that defendant fraudulently entered into oral agreements with her, and upon reliance on the oral agreements, plaintiff stayed home and worked as aforementioned. 7 .. . [* 9] Plaintiffs last cause of action that defendant is moving to dismiss is for unjust enrichment. To prove a case of unjust enrichment a plaintiff must state: the performance of services in good faith; the acceptance of the services by the person to whom they are rendered; an expectation of compensation therefor; and the reasonable value of the services. (Jaworski v. Carrucci, 63 A.D.3d 487, 881 N.Y.S.2d 56 [I Dept. 20091). Unjust enrichment is a claim under a contract implied ... in law to pay reasonable compensation. (Snyder v. Bronfman, 13 N.Y.3d 504, 893 N.Y.S.2d 800 [2009]). Here, plaintiff s complaint asserts she performed household services, that defendant accepted said services, that she expected compensation for the value of the services as agreed between the parties for the value of the services. It is noted that although an unjust enrichment claim has been stated, a factual dispute still exists as to whether there was an agreement to compensate for services rendered. CPLR 321 1 (a), governing motions to dismiss a cause of action, states that: [a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded upon documentary evidence. The determination thereon must be on the basis of documentation and not on affidavits, although the latter may be used to bring out or explain the nature or authenticity of the evidence. It is not clear to this Court what document(s) defendant relies upon for dismissal of this action as a concise argument was not stated. The documentation referenced in defendant s memo of law (the ring appraisal), is insufficient to warrant dismissal of this case in accordance with CPLR 321 l(a)(l), as there are overwhelming factual disputes between the parties and/or no document(s) have been presented 8 [* 10] entitling movant to dismissal at this pre-answer/pre-discoveryjuncture of this litigation, it is hereby ORDERED that defendant's motion is denied, in its entirety; and it is further ORDERED that defendant serve and file an answer to the complaint herein, or otherwise respond thereto, within 20 days from service of a copy of this order with notice of entry; and it is further ORDERED that defendant shall serve a copy of this order with notice of entry on the County Clerk (Room 141B) and upon the Trial Support Office (Room 158); and it is further ORDERED that counsel are directed to appear for a preliminary conference in Room 304, 71 Thomas St., New York, NY 10013, on June 28,2012, at 9:30am, Dated: GdI 2 I ENTER: 1 FILED 9 .. - . .- . . . . . . . .. . . . .. . . . .

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.