Kelley v. Galina-Bouquet, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN; ROSS
• Citation: Kelley v. Galina-Bouquet, Inc., 155 A.D.2d 96, 552 N.Y.S.2d 305 (N.Y. App. Div. 1990)
• Decision Date: 20 March 1990
• Docket Number: INC,GALINA-BOUQUE
• Parties: , 58 USLW 2604 Donna KELLEY also known as Donna Kelley Lawrence, Plaintiff-Appellant, v.and Steven Lawrence, Defendants-Respondents.

Page 305

552 N.Y.S.2d 305

155 A.D.2d 96, 58 USLW 2604

Donna KELLEY also known as Donna Kelley Lawrence, Plaintiff-Appellant, v. GALINA-BOUQUET, INC. and Steven Lawrence, Defendants-Respondents.

Supreme Court, Appellate Division First Department.

March 20, 1990.

Elliott M. Epstein, Mineola, for plaintiff-appellant.

Robert B. Shaw, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, ROSENBERGER and WALLACH, JJ.

ROSS, Justice.

This appeal presents us with the unique situation of a spouse who, in addition to commencing an action for divorce, and, equitable distribution, has also commenced a separate breach of employment contract action against her estranged spouse, and, his corporation.

More than a quarter of a century ago, Mr. Steven Lawrence, the individual defendant herein, together with a partner, started a company called Bouquet Bridal (Bouquet). Thereafter, in or about 1966, Bouquet merged with a New York Corporation, to form Galina-Bouquet, Inc. (Galina). Mr. Lawrence is the Chief Executive Officer, and, sole shareholder of Galina, with principal offices located in New York County. Galina is engaged in the business of manufacturing specialized clothing worn by the bride, and, participating members of the wedding party, such as, inter alia, wedding gowns and bridesmaids' gowns.

Ms. Donna Kelley, who is a resident of Chicago, Illinois, has for many years engaged in the business of designing, and selling wedding gowns and bridesmaids' gowns. Further, during that period, Ms. Kelley operated a retail bridal gown store, in Chicago, and, for at least eighteen years had business dealings with Galina and Mr. Lawrence.

On December 31, 1987, Mr. Lawrence and Ms. Kelley were married in Las Vegas, Nevada.

Less than a year later, on or about October 28, 1988, Ms. Kelley commenced an action for divorce, equitable distribution, and, related relief against Mr. Lawrence, in the Supreme Court, New York County (divorce action).

Also, on or about October 28, 1988, Ms. Kelley commenced an action for breach of employment contract, and quantum meruit against Galina and Mr. Lawrence (defendants) to recover damages, in the Supreme Court, New York County (contract action). The verified complaint alleges, in substance, that plaintiff had several conversations with defendant Mr. Lawrence, "in which he represented to her that he felt that her knowledge and skill and experience in the industry together with his perception of her general business ability would be an asset to Galina, Inc." (see, Record on Appeal (RA), at 36-37); further, Mr. Lawrence told her that her efforts for defendant, Galina, would benefit her financially. Commencing in January 1988, and, for several months thereafter, she worked for Galina, in such capacities as preparing budgets, developing an advertising campaign, designing sets for the photographing of models; training Galina's personnel, in order that they would be able to attract retail stores as customers, and consulting frequently with Mr. Lawrence, in connection with the business of Galina.

Before the joinder of issue, defendants moved, pursuant to CPLR 3211, to dismiss the contract action. Plaintiff opposed. The IAS Court granted that motion, upon the basis the contract action was duplicative of the divorce action. Plaintiff appeals.

Following our comparison of the complaint in the contract action (see, RA, at 35-42) with the complaint in the divorce action (see, RA, at 44-47), we find that the actions are not duplicative of one another, since the actions are against different parties, and the plaintiff seeks different relief in each action (CPLR rule 3211, subdivision (a), paragraph 4); and, Boyer v. New York Property Ins. Underwriting Association, 120 A.D.2d 363, 502 N.Y.S.2d 15 (1st Dept.1986). Specifically, while the divorce action is solely against Mr. Lawrence, and seeks a divorce, equitable distribution, and related relief, the contract action is against a corporate defendant, and Mr. Lawrence, in his capacity as a corporate officer and shareholder, and seeks damages for breach of contract.

After our review of the allegations of the complaint in the contract action, we find that plaintiff has sufficiently pleaded causes of action for breach of contract, or, in the alternative, quantum meruit, in view of the fact that plaintiff alleges that defendant Mr. Lawrence orally requested her to perform services for defendant corporation, for which she would be compensated, and she performed and expected to be paid for said services, and the defendants have failed to compensate her (22 NY Jur.2d, Contracts §§ 509, 510, and, 511). The Court of Appeals held in Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 (1977), "if from ... [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail ..." [material in brackets added].

We stated in O'Henry's Film Work's, Inc. v. Nabisco, Inc., 112 A.D.2d 825, 492 N.Y.S.2d 744 (1st Dept.1985), that "[t]he prospect of a pleading's success is not the criterion by which it should be adjudged under CPLR 3211 ... A motion under that ... [rule] assumes the truth of the allegations of the complaint, with plaintiff given the benefit of every favorable inference ..." [material in brackets added].

Defendant Mr. Lawrence, in an affidavit (see, RA, at 32), which is before us, acknowledges a long-term business relationship with plaintiff, which pre-dated their marriage.

Although the plaintiff was married to defendant Mr. Lawrence when she performed the services for which she alleges the defendants promised to pay her, we find that, based upon plaintiff's experience in the bridal gown industry, and defendant Mr. Lawrence's admission (see, RA, at 32) that both he and Galina had substanial business dealings with plaintiff for many years before the marriage, she has made out a cause of action for breach of contract, and/or quantum meruit.

It is the function of the trier of the fact to determine if plaintiff is entitled to recover in the contract action.

Almost one hundred years ago, the Court of Appeals stated, in Ulrich v. Ulrich, 136 N.Y. 120, 123, 32 N.E. 606 (1892), in pertinent part:

"The right to draw any presumption as to the fact of an agreement having been made from the other fact of the relationship between the parties was within the exclusive province of the jury ...".

We find that the alleged agreement herein did not violate the Statute of Frauds (General Obligations Law, § 5-701), as alleged by defendant, since performance of the services under it could be completed within one year. As we noted in Posner v. Precision Shapes, 271 A.D. 435, 439, 65 N.Y.S.2d 733 (1st Dept.1946), "[i]t has been repeatedly held that the statute [of frauds] does not apply to a contract which, in consistence with its terms, may be performed within one year ... [citations omitted] ..." [material in brackets added].

In plaintiff's complaint, as mentioned supra, she asserts an alternative theory of recovery, which is based upon quantum meruit. The doctrine of quantum meruit or quasi-contract was developed by the law, in order to make sure that a person, who receives the benefit of services, pays the reasonable value of such services to the person, who performed them. In other words, the purpose of that doctrine is "to assure a just and equitable result ..." (Bradkin v. Leverton, 26 N.Y.2d 192, 196-197, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970)).

Defendant also argues that the doctrine of election of remedies is applicable herein. We disagree. Since the contract action, and the divorce action, inter alia, do not involve exactly the same parties, are based upon different causes of action, and seek different relief, we find that the contract action is not barred by the doctrine of election of remedies (CPLR § 3002, and, see also 2 Carmody Wait 2d Section 10:5). Professor David D. Siegel states (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of New York, Book 7B, CPLR § 3002, c. 3002:4, at page 525), in his commentary to CPLR §...