Jackson K. v Parisa G.

[*1] Jackson K. v Parisa G. 2016 NY Slip Op 50660(U) Decided on April 8, 2016 Supreme Court, New York County Drager, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2016
Supreme Court, New York County

Jackson K., PLAINTIFF

against

Parisa G., DEFENDANT.



300957/15



Jeffrey R. Cohen, Esq., Cohen Goldstein, LLP for Plaintiff; Michael A. Mosberg, Esq., Aronson Mayefsky & Sloan, LLP for Defendant.
Laura E. Drager, J.

The Defendant asks this court to dismiss the Plaintiff's Summons and Verified Complaint (CPLR 3211 [a] [1]; [7]). The Verified Complaint requests a declaration of the validity of the marriage Plaintiff claims the parties entered into during a wedding ceremony held on September 4, 2010 (the "September 4, 2010 Ceremony"). Alternatively, the Verified Complaint alleges causes of action for fraud, negligent misrepresentation, fraudulent omission and conversion of the engagement ring, all arising from Plaintiff's claim of surprise to learn from Defendant that they were not married. In addition, Defendant seeks an award of costs and counsel fees incurred in connection with this motion. Plaintiff opposes the motion.

The Facts [FN1]

The parties have known each other since childhood. They entered into a romantic relationship in 2006 and began residing together in January 2007. Plaintiff asked Defendant's parents for permission to marry her on July 11, 2009. Plaintiff and Defendant's mother together purchased a $25,000 engagement ring for Defendant. Plaintiff proposed to Defendant on July 29, 2009. She accepted the proposal and the engagement ring. For the next thirteen months, the Defendant and her family planned the wedding to be performed on September 4, 2010. [*2]Arrangements were made for the ceremony and a reception to be held at the de Seversky Mansion in Old Westbury, New York. Invitations were printed and sent in March or April 2010 inviting guests to attend the "marriage" of the parties. The parties created a wedding website and registered for wedding gifts. Approximately 200 guests were invited to attend the wedding. A band, DJ, photographer and videographer were hired.

On August 30, 2010 the parties signed a 36-page prenuptial agreement at Defendant's request. Each party was represented by counsel in the preparation of that agreement. The agreement was signed and properly acknowledged.

A four page printed program was handed out to the guests in attendance at the ceremony, specifically stating it was for the "Wedding of Parisa and Jackson." The program described an Iranian Islamic wedding, including a discussion of the various symbols used during the ceremony. The program set forth the roles of the "bride" and "groom" during the ceremony, including the exchange of rings and honey. Ms. Sholeh Shams [FN2] performed the ceremony and was listed in the Program as the "Ceremony Officiant." (Aff. in Opp., Ex. 3).

A ceremony, lasting twenty minutes, was performed in accordance with the traditions set forth in the program.

Defendant wore a formal wedding gown and her sister was her maid of honor. Photographs were taken. It is not disputed that a ceremony occurred and a lavish reception followed.

The parties never obtained a New York license to marry, nor did they ever obtain a civil certificate of marriage. The Plaintiff claims that the parties signed a "marriage contract" at the conclusion of the ceremony and offers photographs of him and Defendant signing the document (Aff. in Opp., Ex. 4). The document is in Farsi. (Cohen Aff. 3/20/15, Ex. 1). Defendant acknowledges that she signed this document, but claims it was only a "symbolic" document created by Ms. Shams.

Each party provides a translation of that document, apparently derived from a photograph taken of it during the September 4, 2010 Ceremony. The Plaintiff's translation designates the document as a "Marriage Certificate." (Cohen Aff. 3/20/15, Ex. 1). In contrast, the Defendant claims that the document does not contain the words "marriage" or "marriage certificate," but concedes that it states "eternal union," and contains the signature of the "bride" and "groom." (Reply Aff., Ex. J). Moreover, the Defendant acknowledges the document reads: "The bride and groom have taken oath on the spring morning breeze [lit. zephyr] to building their living together based on mutual trust..." The document was witnessed by two individuals. (Reply Aff, Ex. J; Cohen Aff. 3/20/15, Ex. 1).

Defendant provides an affidavit from Ms. Shams who avers that she was not authorized to officiate at a wedding in 2010 in any state, including New York.[FN3] (Shams Aff. 8/14/14, ¶3; Shams Aff. 4/9/15, ¶7). Ms. Shams claims that she advised both parties on September 3, 2010, that she would perform a symbolic ceremony that had no legal status in the United States or Iran. (Shams Aff. 8/14/14, ¶3).

Plaintiff denies being told by Ms. Shams that she could not perform a wedding. To his knowledge, Ms. Shams was authorized to perform an Iranian Islamic wedding. He notes that Ms. Shams' services were retained four months before the date of the wedding and that she was flown in from California to perform the ceremony. He submits a page from an Iranian-American wedding professional website listing Ms. Shams as a "Solumnizer" (sic) and "solemnizer," and also provides a website address as www.rahavard.com/MarriageCeremony.cfm." (Cohen Aff. 3/20/15, Ex. 2). He also submits another Iranian-American website page listing Ms. Shams as "clergy" (Cohen Aff. 3/20/15, Ex. 3). Finally, he submits a purported Facebook posting from Ms. Shams from 2009 in which she claims she was performing a "marriage ceremony" on August 16, 2009. (Cohen Aff. 3/20/15, Ex. 4).

Plaintiff claims that it was necessary for him to convert to Islam before he could marry the Defendant. He states that a conversion ceremony occurred immediately before the September 4, 2010 Ceremony. The Defendant counters that Ms. Shams "did not convert Plaintiff to Islam." And that Plaintiff's brother could not have served as a witness to "any purported conversion" since the brother is not a Muslim. (Plaintiff's Reply Aff., ¶¶7, 9).

The parties lived together after the wedding. The Plaintiff submitted emails in which the Defendant referred to the parties as being married. However, the parties never filed joint tax returns. Defendant submitted evidence of her tax returns listing herself as single (Moving Papers, Exs. D, E, F, G). Furthermore, approximately one year after the ceremony, the Defendant had Plaintiff sign a Domestic Partnership form in which they acknowledged having no other spouse or domestic partner. (Moving Papers, Ex. C). Defendant claims it was necessary for this form to be submitted to enable her to obtain health insurance for the Plaintiff since they were not married. Plaintiff claims he did not understand the form to imply that they were not in fact married.[FN4]

Analysis

On a motion to dismiss pursuant to CPLR 3211 "the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference." Leon v. Martinez, 84 NY2d 83, 87 (1994). See also, Reiver v. Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149 (2d Dept' 2010); Granada Condominium III Ass'n v. Palomino, 78 AD3d 996 (2d Dep't 2010). "The court must determine whether a cognizable cause of action can be discerned therein, not whether one has been properly stated (citations omitted). However, the complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory' (Huntington Dental & Med. Co., Inc. v Minnesota Mining & Mfg. Co.), _F Supp2d_, 1998 US Dist. LEXIS 1526 at *9, 1998 WL 60954, at *3 [SD NY 1998])." [*3]MatlinPatterson ATA Holdings LLC v. Fed. Express Corp, 87 AD3d 836, 839 (1st Dep't 2011).

Affidavits and documentary evidence submitted in response to a motion to dismiss may properly be considered and the motion to dismiss granted if the affidavits and documents conclusively establish a defense to the asserted claim as a matter of law. See, Taylor v. Pulvers, Pulvers, Thompson & Kutner, 1 AD3d 128 (1st Dep't 2003); Wilhelmina Models , Inc. v. Fleisher, 19 AD3d 267, 268-269 (1st Dep't 2005), affd, 94 NY2d 659 (2000) citing, Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Where there are disputed questions of material fact a hearing is required and summary dismissal must be denied. Ortiz v. Varsity Holdings, LLC, 18 NY3d 335 (2011).

Guided by these principles, the court will consider separately the motion with respect to the validity of the marriage and then the motion with respect to the claims for fraud, negligent misrepresentation, fraudulent omission misrepresentation and conversion.

VALIDITY OF THE MARRIAGE

The complaint includes two causes of action for a declaration of the validity of the marriage. In the first cause of action Plaintiff asserts that on September 4, 2010 the parties solemnly took each other as husband and wife in a properly witnessed ceremony performed before a "clergyman or magistrate." In the second cause of action he asserts that "Upon information and belief" the parties' marriage was solemnized in the manner used and practiced in the Islamic faith. (Verified Complaint, ¶9).

Defendant seeks dismissal of Plaintiff's causes of action for a declaration of the validity of the marriage claiming that, as a matter of law, Ms. Shams was not authorized to solemnize the marriage; the parties never obtained a marriage license or participated in a civil wedding ceremony; and the parties did not intend to get married.

The Domestic Relations Law ("DRL") requires that a marriage license be obtained prior to a marriage ceremony in New York (DRL §13). It is undisputed that the parties here did not obtain a marriage license. However, even where no marriage license is obtained, a marriage ceremony performed in New York may still be valid if it was "solemnized between persons of full age." (DRL §25). To be "solemnized" the marriage ceremony must be performed by (1) a clergyman or minister of any religion or leaders of the Ethical Culture Society. . . (DRL §¶11 (1)). DRL §11 (7) provides that the terms "clergyman" or "minister" are defined in the Religious Corporations Law ("RCL"), which reads:

the term clergyman' and the term minister' include a duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue. RCL §2 (Emphasis added).

No particular form or ceremony is required to solemnize a marriage by a member of the clergy or minister so long as the parties declare in the presence of witnesses that they "take each other as husband and wife" and the marriage is solemnized "in the manner heretofore used and practiced in their respective societies or denominations." DRL §12.

Defendant claims that no marriage occurred because Ms. Shams is not a member of the clergy or a minister as those terms are defined by statute and was not qualified to solemnize a [*4]marriage in New York. In support of this position, in addition to her own affidavits, Defendant offers two affidavits from Ms. Shams in which she avers that she is not a member of the clergy or a minister [FN5] and that she explained to the parties prior to the ceremony that she was not authorized to marry them. (Motion to Dismiss, Shams Aff., 8/14/14; Reply Aff., Shams Aff. 4/9/15). Defendant claims that Ms. Shams' affidavits constitute conclusive documentary evidence warranting summary dismissal as a matter of law on the issue of Ms. Sham's lack of authority to perform a marriage ceremony. DRL § 3211 (a) (1). See, Coutsodontis v. Peters, 39 AD3d 274 (1st Dep't 2007) (writing by donor conclusively contradicted donee's claim of inter vivos gift); 150 Broadway NY Assocs., L.P. v. Bodner, 14 AD3d 1, 5 (1st Dep't 2004) (lease conclusively proved that individual defendants were not tenants where lease indicated tenant was professional corporation).

Ms. Shams' affidavits do not constitute conclusive documentary evidence that Ms. Shams was not qualified to solemnize a marriage. See, Asmer v. 20th and Seventh Assocs., LLC, 125 AD3d 563 (1st Dep't 2015) (affidavit asserting inaccuracy of allegations in complaint fails to conclusively establish a defense). Plaintiff offers evidence that contradicts Ms. Shams' assertions, including websites listing Ms. Shams' as a "solumnizer" and "clergy" on Iranian-American websites. (Aff. In Opp., Ex. 3), as well as a Facebook entry purportedly from Ms. Shams stating that she was scheduled to perform a marriage ceremony in San Diego on August 16, 2009. (Cohen Aff. 3/20/15, Ex. 4). Moreover, Plaintiff denies ever being told by Ms. Shams that she was not authorized to perform the wedding. In a motion to dismiss, Plaintiff's claims that Ms. Shams was clergy and that the ceremony at which she officiated on September 4, 2010 was a valid marriage ceremony must be accepted as true and accorded the benefit of every possible favorable inference. For purposes of this motion, Ms. Shams' affidavits raise questions of fact concerning her capacity to solemnize an Islamic wedding warranting a hearing.

In addition, the court rejects Defendant's assertion that the Declaration of Domestic Partnership signed by Plaintiff a year after the wedding ceremony is conclusive documentary evidence that the parties were not married. The document does not specifically state that the parties are not married to each other. Rather, it states that the parties are "not married to or partnered with any other spouse, spouse equivalent or Domestic Partner." (Moving Papers, Ex. C). Plaintiff asserts that he did not understand that those words implied that the parties were not married to each other. At this stage, the court must accept his statement as true. Neither the affidavits submitted by Ms. Shams nor the Declaration of Domestic Partnership constitute conclusive evidence that the parties were not married.

However, the court rejects the Plaintiff's claim that Ms. Shams could have performed the wedding as a magistrate. The term "magistrate" is defined in DRL §11 (2), (3), (7). Plaintiff does not assert that Ms. Shams falls within these definitions.

In his second cause of action, Plaintiff asserts that the marriage was solemnized in the manner used and practiced in the Islamic faith. Defendant contends that the ceremony in which the parties participated was not conducted in accordance with Islamic law and, therefore, does not fall within the scope of DRL §12. She also asserts that the document Plaintiff refers to as a "marriage certificate" is not a valid marriage contract under Islamic law. In support of these [*5]positions, Defendant submits the affidavit of Hussein Modarressi, Professor of Near Eastern Studies and Islamic Law at Princeton University in which he avers that "Shari'ah provisions and procedures for marriage were not satisfied" during the September 4, 2010 Ceremony. (¶7, Modarressi Aff. Aff.). Professor Modarressi further opines that the conversion ceremony described by Plaintiff does not meet the requirements for conversion under Islamic law. (Id., ¶8). According to Professor Modarressi, Plaintiff was required under Islamic law to have converted to Islam for the marriage to be valid.

Plaintiff responds that, even if Ms. Shams is not clergy, the marriage is still valid because clergy are not required to perform a marriage under the Ja'fari Shi'ite school of the Sharia'ah denomination of Islam. Although the first paragraph of DRL §12 reads:

No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman , but the parties must solemnly declare in the presence of a clergyman. . . and the attending witness or witnesses that they take each other as husband and wife.

Defendant relies on the second paragraph of the statutory provision which states that the manner of solemnizing marriages does not affect marriages among the people called friends or quakers; nor marriages among the people of any other denominations having as such any particular mode of solemnizing marriages; but such marriages must be solemnized in the manner heretofore used and practiced in their respective societies or denominations, and marriages so solemnized shall be as valid as if this article had not been enacted. DRL § 12 (Emphasis added).

In support of his position, Plaintiff submits the affidavit of Abed Awad, an attorney and an adjunct professor at Rutgers University Law School where he teaches a course on Islamic law and matrimonial litigation. (¶¶2-15 Awad Aff.). Mr. Awad opines that all of the requirements for a valid marriage ceremony according to Islamic law were satisfied during the September 4, 2010 Ceremony and that the conversion ceremony, as described by the Plaintiff, was sufficient. (¶32 Awad Aff.).

Defendant argues that the statutory provision relied upon by Plaintiff was intended to apply only to Quaker weddings and there is no reported case supporting Plaintiff's position.[FN6] Defendant cites to several cases where Islamic weddings are deemed valid because a religious leader performed the ceremony. Matter of Farraj, 72 AD3d 1082 (2d Dept 2010); Conteh v. William Penn Life Ins. Co. of NY, 37 Misc 3d 1205(A) (Supt. Ct. Bronx Co. 2012); H.T. v. A.E., 46 Misc 3d 1205(A) (Sup. Ct. Richmond County 2014). Defendant contends that Ms. Shams had no religious authority to perform a marriage.

The court is prohibited from resolving "controversies over religious doctrine and practice." Presbyterian Church of U.S. v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 449 (1969); First Presbyterian Church of Schenectady v. United Presbyterian Church in U.S., 62 NY2d 110, 116 (1984). "Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while [*6]interfering with the free exercise of the opposing faction's beliefs." 62 NY2d at 116. The court has no authority to determine the validity of the alleged marriage under Islamic law; the dispute must be determined based on the application of neutral principles of law and without reference to religious principles. See, Storfer v. Storfer, 131 AD3d 881 (1st Dep't 2015); Hirsch v. Stern, 83 AD3d 783, 784 (2nd Dep't 2011); Avitzur v. Avitzur, 58 NY2d 108 (1983); Madireddy v. Madireddy, 66 AD3d 647 (2d Dep't 2009).

The court need not decide at this point whether it is possible for the court to determine the validity of the purported marriage on neutral principles. The ultimate issue is whether the ceremony meets the requirements set forth in DRL §12. Plaintiff argues that, in Defendant's denomination, no particular religious leader must solemnize a wedding ceremony. Under New York law, an officiant at a religious wedding ceremony need not be limited to a traditional concept of a member of the clergy or a minister ordained by a religious order. DRL § 11; RCL §2; DRL §12. Indeed this issue has given rise to some conflict at the Appellate Division level with regard to the recognition of marriages performed by Universal Life Church ministers. Ranieri v. Ranieri, 146 AD2d 34 (2d Dept. 1989); Oswald v. Oswald, 107 AD3d 45 (3d Dept. 2013).[FN7] Since New York statutory provisions set forth the qualifications for a marriage officiant, the court may be able to determine if a person meets those criteria without embroiling the court in religious controversy. See, Aghili v. Saadatnejadi, 958 S.W.2d 784 (Ct. of Appeals, Tennessee, 1997) (material factual issue as to whether individual not a religious leader was competent to perform an Iranian Islamic marriage ceremony). Whether Ms. Shams was qualified to solemnize the marriage is an issue of fact.

In addition, Defendant also raises an issue of fact as to whether the parties intended the September 4, 2010 Ceremony to result in a marriage. She claims the ceremony was merely "symbolic" and that the parties intended at some future date to have a civil marriage ceremony. The Plaintiff counters that the parties clearly intended to be married as evidenced by the prenuptial agreement, the lavish wedding ceremony, his conversion, and the effort to fly Ms. Shams to New York from California to officiate. Furthermore, he avers in his later causes of action that he believed the parties had entered into an Iranian Islamic wedding and that the appropriate paperwork had been filed in Iran. Of course, the failure of the parties to obtain a New York marriage license is a circumstance that may be explored at a hearing. The conflicting statements regarding the parties' intent raise an issue of fact.

Defendant's motion to dismiss Plaintiff's First and Second causes of action for the declaration of the validity of the parties' marriage is denied.[FN8]

FRAUD CAUSE OF ACTION

Defendant asserts that Plaintiff's cause of action for fraud must be dismissed because he failed to plead the necessary elements for such a claim. CPLR 3016 (b) provides:

Where a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.

The elements for an action for fraud are: a representation of a material fact, falsity, scienter, reliance and injury. Vermeer Owners, Inc. v. Guterman, 78 NY2d 1114 (1991); Small v. Lorillard Tobacco Co, 94 NY2d 43 (1999). The court has reviewed the allegations made in the Verified Complaint and finds that the elements of fraud are sufficiently pled to withstand dismissal.

Defendant argues that Plaintiff's complaint fails to plead fraud with the specificity required by CPLR §3016(b) in that it does not identify the specific time, place or content of Defendant's alleged false statements to him that she would marry him on September 4, 2010, that Ms. Shams was authorized to marry them and that Defendant took Plaintiff as her husband. (Verified Complaint ,¶¶25, 46-48). CPLR §3016(b) should not be strictly interpreted to prevent an otherwise valid claim and "is satisfied when the facts suffice to permit a reasonable inference of the alleged misconduct." Eurycleia Partners, L.P. v. Seward & Kissel, 12 NY3d 553, 559 (2009), citing Pludeman v. Northern Leasing Sys., Inc. 10 NY3d 486, 491-493 (2008). Here, the complaint includes detailed allegations to the effect that the Defendant accepted Plaintiff's marriage proposal and engagement ring on July 29, 2009. (Verified Complaint, ¶¶16-17); that the Defendant told him that her family wanted to select the wedding officiant to be certain that the marriage would be recognized in the Islamic Republic of Iran and valid under Iranian law; that, as a consequence, Defendant's father chose Ms. Shams to officiate and Defendant represented to Plaintiff that Ms. Shams was authorized to marry them (Verified Complaint, ¶¶23-25); that the wedding ceremony program indicated Ms. Shams was the officiant and listed the "symbolic elements of the Sofreh Aghd" which is the Iranian marriage ceremony (Verified Complaint, ¶30); that Plaintiff converted to Islam to enable the Islamic marriage ceremony to proceed (Verified Complaint, ¶¶32-35); and that the wedding ceremony proceeded with each party solemnly declaring to take each other as husband and wife before two hundred guests, witnesses and the officiant, including the exchange of wedding rings and other symbols of a wedding and the signing of a marriage contract. (Verified Complaint, ¶¶36-38).

Defendant's alleged misstatements were not mere statements of future intentions and speculative promises or expectations, as argued by Defendant. Defendant places undue reliance on cases finding no actionable fraud based on statements of what would or could occur in the future. See, Hylan Elec. Contr., Inc. v. MasTec N. Am., Inc., 74 AD3d 1148 (2d Dep't 2010) [*7](allegations that a party "would be" paid for work not actionable); Longo v. Butler Equities II, 278 AD2d 97 (2d Dep't 2000) (misrepresentations that company "could be" profitably broken up were mere expressions of opinion). As Defendant acknowledges, fraud lies when there has been an intentional misrepresentation of present or pre-existing fact. Here Plaintiff alleges that Defendant convinced him that Ms. Shams was authorized to marry them at the time she officiated at the September 4, 2010 Ceremony, and that they were actually married on September 4, 2010. Only after years of purported marriage did Defendant tell Plaintiff they were not married.

The allegations here are substantially similar to those held to satisfy CPLR §3016 (b) in Tuck v. Tuck, 14 NY2d 341 (1964). There, the alleged fraud consisted of defendant arranging a bogus marriage ceremony (with bogus judge, pretend witnesses and fake papers) and misrepresenting to the plaintiff that the wedding ceremony was valid and that the parties were married. Here, Plaintiff alleges in detail the wedding arrangements made by Defendant, her misrepresentations concerning the authority of Ms. Shams and Defendant's claim that the ceremony was valid under Iranian law. According to the complaint, Defendant told Plaintiff that the marriage certificate and all necessary documents required for registration and recognition of the marriage in Iran had been filed. (Verified Complaint, ¶42). None of the documents proffered by Defendant conclusively contradict those allegations.

Defendant contends that even if she made the statements asserted by Plaintiff she misstated the law and not facts. She argues that an action in fraud cannot lie where there is a misstatement of the law. Contrary to her position, it has been held that "in the proper circumstances there may indeed be reliance on a fraudulently expressed statement of the law." National Conversion Corp. v. Cedar Bldg. Corp., 23 NY2d 621, 628-9 (1969). Some of Defendant's alleged statements may be mixed statements of law and fact, but others are solely alleged misstatements of fact. The misrepresentations allegedly made by Defendant that the September 4, 2010 Ceremony was a valid marriage ceremony, that the parties were married, and that a marriage certificate had been registered in Iran involve questions of fact. Plaintiff is entitled to develop proof (through discovery and at a hearing) that Defendant caused him to believe that the marriage certificate was registered and the marriage recognized in Iran. Defendant may challenge that evidence.

Defendant also argues that Plaintiff has not established that he relied on Defendant's purported misrepresentations because of his failure to exercise "due diligence" to discover the truth of the parties' marital status. Schumaker v. Mather, 133 NY 590 (1892); Cohen v. Colistra, 233 AD2d 542 (3d Dept. 1996). However, the cases relied upon by Defendant concern arm's length real estate transactions where the buyers had an equal opportunity to investigate the seller's claims regarding the property. Those cases are different from the instant matter where the parties enjoyed an intimate relationship based on trust. Plaintiff asserts that Defendant and her family took responsibility for assuring the legality of the wedding ceremony. Whether Plaintiff under these circumstances should have determined on his own if Ms. Shams was an officiant or if the marriage certificate was registered in Iran is a question of fact precluding dismissal at this stage.

Defendant further asserts that Plaintiff cannot prove that Defendant's alleged misrepresentations caused injury to him because he knew the parties were not legally married by virtue of the Affidavit of Domestic Partnership signed by the parties in July 2011. (Exh. C, Moving Papers). Plaintiff asserts that he simply signed the form at Defendant's request for [*8]insurance purposes. (¶16, Plaintiff's Aff. in Opp.). The affidavit does not state that the parties are not married but that they are "not married to or partnered with any other spouse." The circumstances surrounding the signing of the Affidavit of Domestic Partnership, including the purpose of that document, raise fact issues that preclude dismissal.

Defendant argues that Plaintiff does not sufficiently plead injury and entitlement to damages. She contends that at most, Plaintiff is entitled only to out-of-pocket costs which he does not allege with specificity. The court agrees with Defendant that the Plaintiff's potential recovery is limited to the pecuniary losses he suffered as a direct result of the fraud. Howard S. v. Lillian S., 62 AD3d 187 (1st Dep't 2009), aff'd. 14 NY3d 431, 435, 437 (2010). Plaintiff s Verified Complaint includes an allegation that he contributed property and money to Defendant. (Verified Complaint, ¶51). Although these pleadings are sparse, the court finds they are sufficient. However, those out-of-pocket expenses are the only monies the Plaintiff may recover. His claims for damages arising out of his having converted to Islam, living as a married man for three years, his lack of seeking a relationship with another that would lead to a real marriage and his delay in having children are rejected as not tied to out-of-pocket expenses.

Similarly, Plaintiff's claim for punitive damages must be dismissed as a matter of law. An award of punitive damages is warranted only where there is "evidence of conduct evinc[ing] a high degree of moral turpitude and demonstrating such wanton dishonesty as to imply a criminal indifference to civil obligations." Howard S. v. Lillian S., supra. (Wife's adultery and concealment that child was not Husband's son did not evince high degree of moral turpitude). Claims for punitive damages are subject to dismissal "in cases lacking the requisite level of culpability or where the public was not the victim." 164 Mulberry St. Corp. v. Columbia Univ., 4 AD3d 49, 51 (1st Dep't 2004). Absent an allegation of egregious tort directed at the public at large, dismissal of a claim for punitive damages is warranted. Steinhardt Group, Inc., v. Citicorp, 272 AD2d 255, 257 (1st Dep't 2000). Even assuming that Defendant made the misrepresentations claimed in the Verified Complaint, to the effect that the ceremony created a valid marriage, the alleged deception does not rise to such a high level of moral turpitude or wanton dishonesty as to imply a criminal indifference to civil obligations. Moreover, it is not alleged that the public was the victim of these misrepresentations. Plaintiff's claim for punitive damages is not supported by the pleadings as a matter of law. Plaintiff's claims for punitive damages in his Fraud Cause of Action is dismissed.[FN9]

Plaintiff's Verified Complaint in this case, pleads fraud with sufficient specificity, thereby meeting the requirements of CPLR §3016(b). However, Plaintiff's request for compensatory damages is limited to out-of-pocket pecuniary losses he incurred and his application for punitive damages is denied as a matter of law. In all other respects, Defendant's motion for dismissal of the cause of action for fraud is denied.

NEGLIGENT MISREPRESENTATION AND FRAUDULENT OMISSION

CAUSES OF ACTIONS

Defendant moves for dismissal of Plaintiff's claims for negligent misrepresentation and fraudulent omission. For each of these claims she asserts that the alleged misrepresentations or [*9]omission concerning the parties' marital status did not involve present or past facts but, instead, related to future intentions, promises or expectations.

A cause of action for negligent misrepresentation must assert: (1) the existence of a special or "privity-like" relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) that plaintiff reasonably relied on the information. Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 NY2d 403 (1958); Mitchell v. Diji, 134 AD2d 779 (2d Dept. 2015). See also, Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 180 (2011).

A claim for fraudulent omission must include: (1) a failure to disclose a material fact known to the defendant; (2) that defendant's silence misled the plaintiff; (3) that defendant knew her silence would mislead the plaintiff and kept silent to mislead him; (4) that plaintiff justifiably relied on the omission; (5) that the information was material and defendant had a duty to disclose it; and (6) plaintiff was damaged by the omission. P.T. Bank Central Asia, New York Branch v. ABN Amro Bank N.V., 301 AD2d 373 (1st Dep't. 2003). See also, Mandarin Trading Ltd., supra.

Plaintiff's Verified Complaint alleges that Defendant withheld the material fact that the parties were not legally married; that their relationship created a duty to reveal that fact; and that he justifiably relied on the omission and was injured by it. (Verified Complaint, ¶¶59-63).

The facts as alleged by Plaintiff in his Verified Compliant adequately state the elements of an action for negligent misrepresentation. Plaintiff asserts in his Verified Complaint that Defendant caused him to believe they were husband and wife (a special, privity-like relationship); that knowing Ms. Shams had no authority to marry them, Defendant failed to tell Plaintiff the September 4, 2010 Ceremony did not result in a valid marriage; and he relied on the misrepresentation that they were married to his detriment. (Verified Complaint, ¶¶40, 42, 45-51, 55).

Plaintiff's Verified Complaint also adequately states the elements of an action for fraudulent omission. Plaintiff asserts that Defendant failed to disclose the fact that the September 4, 2010 Ceremony was merely symbolic and that the marriage documents had never been registered in Iran. As a result of failing to disclose this material information, Plaintiff justifiably believed and relied on the fact that the parties were married for a period of three years. (Verified Complaint, ¶¶40, 42, 45-51, 55, 59-62)

The Affidavits submitted by Defendant and Ms. Shams asserting that both parties were informed by the time of the ceremony that Ms. Shams was not authorized to marry them and that the September 4, 2010 Ceremony was merely symbolic raise factual issues that must be addressed at a hearing.

As set forth in the discussion on the Fraud cause of action, the Plaintiff's damages, if any, are limited to out-of-pocket pecuniary losses and his claim for punitive damages is denied.

Defendant's motion to dismiss the fourth cause of action (for negligent misrepresentation) and fifth cause of action (for fraudulent omission) is otherwise denied.

CONVERSION CAUSE OF ACTION

Defendant moves for dismissal of Plaintiff's claim for conversion of the engagement ring he gave to Defendant. It is undisputed that Plaintiff gave an engagement ring to Defendant at a cost of $25,000 of which amount Plaintiff contributed $10,000 (Defendant's mother contributed $15,000).

The elements of a cause of action for conversion are: (1) the plaintiff's possessory right or [*10]interest in the property; and (2) the defendant's dominion over the property or interference with it, in derogation of plaintiff's rights. State of New York v. Seventh Regiment Fund, Inc.,98 NY2d 249 (2002); Employers' Fire Insurance Co. v. Cotton, 245 NY 102 (1927). See also, Pappas v. Tzolis, 20 NY3d 228, 231 (2012).

It is well-established that an engagement ring is the property of the donor when the engagement is broken and the marriage does not occur. Civil Rights Law §80-b. See also, Lipshutz v. Kiderman, 76 AD3d 178 (2d Dep't 2010). Although there may be a fact issue concerning Plaintiff's possessory claim to the ring since it is undisputed that Defendant's mother contributed more than half of the funds to purchase it, the Verified Complaint adequately pleads a claim for conversion. Defendant contends that the Plaintiff failed to allege that he demanded the return of the ring. Proof of making a demand would be required at trial, Lowe v. Quinn, 27 NY2d 397 (1971), but Defendant offers no case requiring that the "demand" be alleged in the complaint. In any event, since Plaintiff pleads that the marriage is valid, the requirement to demand the return of the ring may not yet be ripe.

Defendant's motion for dismissal of the cause of action for conversion is denied.

SANCTIONS

Defendant argues that the claims made in Plaintiff's Verified Complaint are frivolous and seeks an award of counsel fees as sanctions against Plaintiff pursuant to the New York Rules of Court, 22 NYCRR §130-1.1(a). Given that the court denies Defendant's motion to dismiss all of Plaintiff's claims except the claim that Ms. Shams is a "magistrate" and the claim for punitive damages, the Verified Complaint is not frivolous and an award of sanctions is not warranted. Defendant's request for an award of counsel fees as sanctions pursuant to 22 NYCRR §130-1.1(a) is denied.

Accordingly, it is hereby

ORDERED, that Defendant's motion to dismiss Plaintiff's First Cause of Action for Declaration of Validity of Marriage is denied, except the word magistrate is stricken from the complaint; and it is further

ORDERED, that Defendant's motion to dismiss Plaintiff's Second Cause of Action for Declaration of Validity of Marriage is denied; and it is further

ORDERED, that Defendant's motion to dismiss Plaintiff's Cause of Action for Fraud is denied, except that Plaintiff's claim for compensatory damages is limited to his out-of-pocket pecuniary losses and his claim for punitive damages is dismissed; and it is further

ORDERED, that Defendant's motion to dismiss Plaintiff's Cause of Action for Negligent Misrepresentation is denied, except that Plaintiff's claim for compensatory damages is limited to his out-of-pocket pecuniary losses; and it is further

ORDERED, that Defendant's motion to dismiss Plaintiff's Cause of Action for Fraudulent Omission is denied, except that Plaintiff's claim for compensatory damages is limited to his out-of-pocket pecuniary losses and his claim for punitive damages is dismissed; and it is further

ORDERED, that Defendant's motion to dismiss Plaintiff's Cause of Action Conversion is denied; and it is further;

ORDERED, that Defendant's request for an award of counsel fees as sanctions pursuant to 22 NYCRR §130-1.1(a) is denied; and it is further

ORDERED, that any relief not granted is denied.

This constitutes the decision and order of the court.

Dated: April 8, 2016

______________________________

Hon. Laura Drager, J.S.C.

Footnotes

Footnote 1:The facts are largely set forth in the Verfied Complaint (Moving Papers, Ex. A). Hereinafter, references to that document shall appears as "Verified Complaint, ¶_). Additional facts are from the instant motion papers and shall be referenced accordingly.

Footnote 2:In the papers, Ms. Shams is sometimes referred to as Ms. Shahbaz.

Footnote 3:She had been authorized to officiate weddings in California until 2006 when her license lapsed. (¶7, Shams Aff. 4/9/15).

Footnote 4:In Defendant's motion for summary judgment (Motion Seq. 2), Plaintiff moved to strike from Defendant's reply papers an Affidavit submitted by Dr. Raymond DiGiuseppe, the parties' joint counseling psychologist. By Decision and Order dated September 15, 2015 this court ruled that discussions from the joint counseling sessions may be admissible at trial as relevant to Plaintiff's knowledge of the parties' marital status and emotional injury, if any, warranting waiver of the psychologist-patient privilege. However, since the Plaintiff disputed the factual evidence Dr. DiGiuseppe might provide, it was inappropriate for the court to consider the affidavit in deciding Defendant's motion for summary judgment.

Footnote 5:She avers that she is not a Muslim or a member of the Islamic faith. She states she is a practicing Buddhist but has no religious affiliation. (Shams Aff. 4/9/15, ¶¶4,5)

Footnote 6:Contrary to Defendant's position, the provision has also been applied to recognition of Native American weddings by New York State. 1971 NY Op. Atty. Gen. No. 27 (N.Y.A.G.), 1971 WL 216931.

Footnote 7:The Universal Life Church has no place of assembly and no religious observances. To become a minister one merely needs to apply for a certificate by mail or internet.

Footnote 8:The facts here yet again point out the difficulties confronted by New York courts in having to determine the validity of a religious marriage where a civil marriage license was not obtained. Devorah H. v. Steven S., 49 Misc 3d 630 (Sip Ct., New York County 2015); Persad v. Balram, 187 Misc 2d 711 (Sup. Ct., Queens County 2001.) Notwithstanding the seemingly absolute requirement that persons intending to be married must obtain a marriage license (DRL § 13) the failure to do so will not render void a properly solemnized marriage. (DRL § 25). At least fourteen states have enacted mandatory marriage license statutes without any issue raised of infringment on religious freedoms. A mandatory requirement that a marriage license - signed by the spouses, witnesses, and officiator — and returned to the office of the clerk would help to avoid future litigation over the validity of the marriage and would ensure a record of the marriage to address crediting of social security benefits, health insurance coverage, inheritance rights and other marriage-related issues. Ponorovskaya v. Stecklow, 45 Misc 3d 597 (Sup Ct. NY County 2014).

Footnote 9:Plaintiff misnumbered his Fraud Cause of Action as his second cause of action when it is, in fact, his third cause of action.