Artache v. Goldin
| Citation | 133 A.D.2d 596,519 N.Y.S.2d 702 |
| Parties | Carmen ARTACHE, Appellant, v. Jerrold GOLDIN, Respondent. |
| Decision Date | 05 October 1987 |
| Court | New York Supreme Court Appellate Division |
Arnold A. Brenhouse, New York City (Donald R. Billett, of counsel), for appellant.
Silbowitz, Bleier & Bleier, Jamaica (Albert E. Silbowitz, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, BROWN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of contract and unjust enrichment, and for the imposition of a constructive trust, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Collins, J.), dated January 31, 1986, which denied her motion, inter alia, for pendente lite child support, and granted the defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order and judgment is modified, on the law, by (1) deleting the third decretal paragraph thereof, (2) deleting from the second decretal paragraph thereof the words "is hereby and in all respects granted" and substituting therefor the words "is hereby granted to the extent of dismissing the second, third, and fourth causes of action and in all other respects is denied", and (3) deleting from the first decretal paragraph thereof the words "is hereby in all respects denied", and substituting therefor the words "is granted to the extent of enjoining the defendant during the pendency of the action from interfering with the plaintiff's quiet enjoyment of the parties' residence and from selling, leasing, or otherwise encumbering or transferring title to that residence, and directing him to continue to pay all mortgage and carrying costs in connection with the residence; in all other respects, the motion is denied." As so modified, the order and judgment is affirmed, with one bill of costs to the plaintiff.
The plaintiff alleges that in January 1971, she and the defendant entered into an express oral partnership agreement under which they agreed to live together and hold themselves out as husband and wife; that she was to care for the parties' children, perform domestic duties and assist the defendant in the management and administration of his dental practice; and that the defendant would, as soon as possible, obtain a divorce from his wife, from whom he was then separated, and would marry the plaintiff and support her and their children and would share with her the profits from his dental practice and other business interests. According to the complaint, the parties thereafter lived together as husband and wife, first in both the plaintiff's apartment in Manhattan and the defendant's apartment in Great Neck, and then from 1976 to 1985 in the parties' family residence in Great Neck. The plaintiff alleges that during the 14 years of their relationship, she bore four children whom she claims are the defendant's issue. She claims, and has offered various pieces of evidence, including the children's birth certificates, to substantiate, that the defendant consistently acknowledged paternity of the children and held himself out as their father both within the family and in the community.
The plaintiff also claims that during the 14 years that she and the defendant lived together, she rendered both domestic services and business services in accordance with the agreement. In addition, she alleges that she contributed considerable sums of money, in excess of $60,000, including funds derived from the sale of real property that she owned and the proceeds from the settlement of a personal injury action toward the parties' joint economic needs. According to the plaintiff, part of these funds were applied to the down payment for the purchase of the house in Great Neck, which served as the family residence.
The record discloses that the defendant did not receive a divorce from his wife until 1985, and that about that time he left the parties' residence and disavowed his paternity of the four children. He later served the plaintiff with a 10-day notice to quit the residence in which she and the children were residing and expressed his intention to sell the same. He also unilaterally removed certain furnishings and valuables from the premises.
The plaintiff thereupon commenced this action, asserting in her amended complaint causes of action, inter alia, to recover damages for breach of contract, fraud, intentional infliction of emotional distress, and unjust enrichment, and for a declaration of paternity and child support.
In addition, the plaintiff made a separate application for temporary child support and sought an injunction to prevent the defendant from interfering with her and the children's occupancy of the premises or otherwise disposing of the premises in which they were residing during the pendency of the action. The defendant cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that the alleged agreement between the parties was contrary to public policy since it involved both an agreement to commit adultery and to share in the profits of a professional practice in violation of the statutory prohibition against fee-splitting (see, Education Law § 6509-a).
The court, agreeing with the defendant as to the illegal nature of the alleged agreement, dismissed the causes of action to recover damages for breach of contract and unjust enrichment. The court also concluded that no cause of action for intentional infliction of emotional distress existed in this State, and that the claim for a declaration of paternity and the related support claims were not viable absent an order of filiation which could only be granted by the Family Court. Accordingly, it dismissed these latter claims, as well as all the remaining claims, denied the request for pendente lite relief and granted judgment to the defendant.
We now modify by reinstating those causes of action to recover damages for breach of contract and unjust enrichmen and the three causes of action relating to the declaration of paternity and child support. Moreover, in light of our reinstatement of these latter three causes of action and the plaintiff's request for the imposition of a constructive trust as to the family residence, we grant that branch of the plaintiff's motion which seeks to enjoin the defendant from interfering with the use and occupancy of that residence by the plaintiff and the children, and...
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