Ripley v Rutten
Annotate this CaseDecided on August 27, 2018
Supreme Court, New York County
Rodney Ripley, Plaintiff,
against
Jennifer Rutten, Defendant.
154314/2014
Attorney for Plaintiff
Raiser & Kenniff, P.C.
87 Walker Street
New York, NY 10013
By: Bruce R. Connolly, Esq.
Attorney for Defendant
Costigan Law PLLC
747 Third Avenue, 2nd Floor
New York, NY 10017
By: William F. Costigan, Esq.
Robert R. Reed, J.
FACTUAL BACKGROUND
Plaintiff, Rodney Ripley ("Ripley"), and defendant, Jennifer Rutten ("Rutten"), became engaged in 2011 when plaintiff proposed to marry her with the offering of an engagement ring. The engagement ended, and Rutten retained possession of the ring. Ripley brings this action to recover the engagement ring itself, or, alternatively, its monetary value, which he states is $39,057.10, together with interest. Ripley now makes this post-note of issue motion for summary judgment, pursuant to CPLR 3212, asserting that he is entitled to judgment and return of the engagement ring as a matter of law because defendant did not follow through with the wedding. Rutten opposes, arguing that she was not properly served in this action and that the value of the ring is not $39,057.10, as alleged, but rather somewhere between $11,000 and $13,000.
LACK OF PERSONAL JURISDICTION
CPLR 3211(e) provides that an objection of improper service is waived if having raised such an objection in a pleading the party does not move for judgment on that ground within 60 days after service of the pleading (see CPLR 3211(e); see also, Wiebusch v Bethany Mem. Reform Church, 9 AD3d 315 [1st Dept 2004]). Here, Rutten raised a jurisdictional defense in her answer but failed to file any subsequent motion on this issue within the requisite 60 days. Thus, her objection of improper service is waived.
SUMMARY JUDGMENT STANDARD
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v Prospect Hospital, 68 NY2d 320). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the motion. Thus, "if the evidence [on the motion] is evenly balanced, the party that bears the burden of persuasion must lose" (Director, Office of Workers Compensation Programs v Greenwich Collieries, 512 US 267, 272; 300 East 34th Street Co. v Habeeb, 248 AD2d 50).
The court's function on a motion for summary judgment is issue finding, rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8; Sillman v Twentieth Century-Fox Film Corp., supra.).
DISCUSSION
The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the donor when an engagement is terminated (see DeFina v. Scott, 195 Misc 2d 75, 755 NYS2d 587; see also Gagliardo v. Clemente, 180 AD2d 551). This rule applies only to a ring given as an engagement ring (see, e.g., Torres v. Lopez, 45 Misc 3d 1207[A], 2014 NY Slip Op. 51494[U] at *3 [Sup Ct, Nassau County 2014] [holding that a genuine dispute as to the circumstances under which an engagement ring was given will necessitate a trial to determine the facts, if there were reasons other than a contemplated marriage as to why the gift was given, such as part of a birthday or holiday celebration, where the ring may not be subject to return]). Here, the undisputed facts show that the ring was given in contemplation of marriage and that marriage did not occur. Notably, the reasons for the marriage's nonoccurrence are irrelevant in the determination of who is entitled to possession, or in the case herein, repossession, of the particular engagement ring (see Gaden v. Gaden, 29 NY2d 80 [holding that fault is irrelevant as to whether a gift given in contemplation of a marriage that has not occurred is recoverable]). Rutten raises no triable issue of facts as to the issue of possession. Thus, Ripley is entitled to the return of the ring. Accordingly, Ripley's motion for summary judgment is granted.
VALUE OF THE CHATTEL
The submitted papers indicate that Rutten might potentially sell the ring in order to pay for her legal fees. In the event that Rutten is out of possession of the ring, Ripley would then be entitled to the value of the subject ring (see Civil Rights Law § 80—b [stating that the clear purpose is to return the parties to the position they were in prior to their becoming engaged]). Ripley attaches as an exhibit an invoice for the engagement ring — showing its payment price as $39,057.10. Rutten refutes $39,057.10 as the value of the ring, indicating that her own appraiser estimated its value as between $11,000 and $13,000. Rutten, however, fails to produce any evidence in admissible form to rebut Ripley's documentary evidence as to the value of the engagement ring. Her conclusory and hearsay-based challenge to the ring's valuation cannot defeat plaintiff's summary judgment motion.
Accordingly, it is,
ORDERED that plaintiff's motion for summary judgment is granted; and it is further
ORDERED that the Clerk is directed to enter judgment in the amount of $39,057.10, without interest, against the defendant and in favor of plaintiff; and it is further
ORDERED that defendant, in satisfaction of this judgment, must return the ring, or its value of $39,057.10, to plaintiff within 45 days of notice of entry of this order.
This constitutes the decision and order of the court.
Dated: August 27, 2018
ENTER:
______________________________
J.S.C.
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