Dee v. Rakower

• Decision Date: 13 November 2013
• Citation: 2013 N.Y. Slip Op. 07443,112 A.D.3d 204,976 N.Y.S.2d 470
• Court: New York Supreme Court — Appellate Division
• Parties: Laura DEE, appellant, v. Dena RAKOWER, respondent.

112 A.D.3d 204

976 N.Y.S.2d 470

2013 N.Y. Slip Op. 07443

Laura DEE, appellant,

v.Dena RAKOWER, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 13, 2013.

Kahn & Goldberg, LLP, New York, N.Y. (Michele Kahn of counsel), for appellant.

David P. Rubinstein, P.C., New York, N.Y., for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

AUSTIN, J.

The parties lived together in a committed, same-sex relationship for nearly 18 years, and are the parents of two children. After the relationship ended, the plaintiff commenced this action seeking, inter alia, damages for breach of an alleged oral “joint venture/ partnership” agreement whereby she would share in assets, including the defendant's retirement contributions and earnings, in exchange for leaving her full-time job to care for the parties' children. The plaintiff also asserted several equitable causes of action predicated upon the alleged oral agreement to share in the defendant's retirement contributions and earnings. For the reasons that follow, we conclude that the complaint is sufficiently pleaded to state a cause of action sounding in breach of contract. Accordingly, the Supreme Court should have denied that branch of the defendant's motion pursuant to CPLR 3211(a)(7) which was to dismiss the breach of contract cause of action. However, we conclude that the Supreme Court properly granted those branches of the motion which were to dismiss the equitable causes of action predicated upon the alleged oral agreement to share the defendant's retirement contributions and earnings.

In her complaint, the plaintiff alleged, and the defendant did not dispute, that she was involved in a committed relationship with the defendant, living as a family unit, from 1990 until 2007. This was prior to the passage of New York's Marriage Equality Act ( seeDomestic Relations Law §§ 10–a, 10–b). Two children were born of this relationship. Each party is the biological parent of one child, and each child was legally adopted by the other party.

According to the allegations set forth in the complaint, before they had children, each party was employed full-time, earning a salary and retirement benefits. The parties pooled their respective salaries to meet their shared expenses pursuant to what the plaintiff described as a specific agreement to form “a partnership and/or joint venture.” In 1996, in furtherance of their agreement, the parties purchased a house as “joint tenants with rights of survivorship.”

After the parties' first child was born, the parties agreed, given the cost of child care, that the plaintiff would eschew her full-time employment and work part-time so that she could “be home with the child (later, children) and perform other non-financial services for the benefit of the family and for the parties' partnership and/or joint venture” while the defendant would continue to work full-time. The plaintiff claims that her decision to leave her full-time employment was based upon the defendant's promise that her non-economic contributions to their family unit would, along with their pooled salaries and assets, be in furtherance of the “partnership/joint venture.” Indeed, the parties “realized and specifically discussed that [the] [d]efendant would be earning more income for, and [the plaintiff] would be contributing more non-financial services to, the parties' partnership/joint venture.” The plaintiff asserts that, as a result, the parties specifically agreed to share equally in all financial contributions made by each of them and that all such contributions were for their mutual benefit. In addition, the parties allegedly specifically discussed that the defendant would continue to accrue retirement savings while the plaintiff would no longer be able to, and agreed that the plaintiff would be entitled to one half of the defendant's retirement contributions and earnings for the period that the plaintiff did not work at a job that provided her with a retirement plan.

Upon the termination of their nearly–18–year relationship, the plaintiff commenced this action. In her complaint, the plaintiff alleged ten causes of action. At issue on this appeal are the plaintiff's eighth cause of action, which was to recover damages for breach of the parties' alleged partnership/joint venture agreement, as well as her sixth cause of action, which was for dissolution of the alleged partnership/joint venture and an accounting of its assets, seventh cause of action, which was for the imposition of a constructive trust on one-half of the defendant's assets, and ninth cause of action, which was based on unjust enrichment.

In her amended answer, the defendant denied the essential allegations of the complaint and interposed a general affirmative defense that the complaint failed to state a cause of action. Thereafter, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the sixth, seventh, eighth, and ninth causes of action alleged in the complaint.

In an order entered January 19, 2011, the Supreme Court granted the defendant's motion, determining that a cause of action was not stated.

Standard for a Motion to Dismiss for Failure to State a Cause of Action

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference ( see Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318, 631 N.Y.S.2d 565, 655 N.E.2d 661; see also Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). The role of the court is to “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Therefore, a complaint is legally sufficient if the court determines that a plaintiff would be entitled to relief on any reasonable view of the facts stated ( see Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d at 318, 631 N.Y.S.2d 565, 655 N.E.2d 661). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus” (EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26).

Breach of Contract Cause of Action

Applying these principles here, we find that, within its four corners, the complaint sufficiently alleges the elements of a breach of contract cause of action necessary to survive a motion to dismiss pursuant to CPLR 3211(a)(7). The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach ( see Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 A.D.3d 122, 127, 921 N.Y.S.2d 329; Brualdi v. IBERIA Lineas Aeraes de España, S.A., 79 A.D.3d 959, 960, 913 N.Y.S.2d 753; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237; Furia v. Furia, 116 A.D.2d 694, 695, 498 N.Y.S.2d 12).

In her complaint, the plaintiff sufficiently pleaded all of the elements of a breach of contract cause of action. In pertinent part, she alleged:

“15. After the parties' first child was born in 1996, the parties agreed that, given the costs of child care, Plaintiff would leave her full time job and assume part-time work so she could be home with the child (later, children) and perform other non-financial services for the benefit of the family and for the parties' partnership and/or joint venture, while Defendant would continue to work full-time to support the family/joint venture/partnership financially.

“16. At that time, the parties realized and specifically discussed that Defendant would be earning more income for, and Plaintiff would be contributing more non-financial services to, the parties' partnership/joint venture.

“17. The parties therefore specifically agreed that they would share equally in all financial and non-financial contributions made by each of them and that all such contributions—including without limitation earnings, assets, money, funds, accounts, and labor—was for their mutual benefit ...

“18. At that time, the parties also realized and specifically discussed that Defendant would continue to accrue retirement savings from her work while Plaintiff would not, since Plaintiff would no longer work at a job which provided retirement plans.

“19. The parties therefore specifically agreed that Plaintiff would be entitled to one-half of Defendant's retirement contributions and earnings that accrued to Defendant during the period that Plaintiff did not work at a job that provided her with full retirement plans.”

These factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties' children, in exchange for a one-half share in the defendant's retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.

The alleged contractual agreement between the parties was supported by consideration. “Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]” (Anand v. Wilson, 32 A.D.3d 808, 809, 821 N.Y.S.2d 130). The consideration here for the alleged contract is the forbearance of the plaintiff's career, the inability to continue to save toward her retirement during that forbearance, and...