Lowinger v. Lowinger

• Decision Date: 15 November 2001
• Docket Number: 1,4282
• Parties: KAY LOWINGER, ETC., ET AL.,, v. MAURICE LOWINGER, DEFENDANT, -AND- EDITH LOWINGER,4282-4282A SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

KAY LOWINGER, ETC., ET AL., PLAINTIFFS-RESPONDENTS v MAURICE LOWINGER, DEFENDANT,

-AND-

EDITH LOWINGER, DEFENDANT-APPELLANT

4282-4282A

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

November 15, 2001

Norman Solovay, of counsel (Marshall & Solovay, attorneys) for plaintiff-respondent Kay Lowinger.

R. Scott Greathead, of counsel (Howe & Addington Llp, attorneys) for plaintiffs-respondents, Liza Lowinger, Alan Lowinger and Michelle Lowinger.

Nathan Lewin and Richard H. Dolan, of counsel (Bennette D. Kramer, Noam B. Fischman, on the brief, Mintz Levin Cohn Ferris Glovsky & Popeo, PC, and Schlam Stone & Dolan, Llp, attorneys) for defendant-appellant.

Joseph P. Sullivan, P.J.

Eugene Nardelli

Milton L. Williams

Angela M. Mazzarelli

David B. Saxe, JJ.

Williams, J.

Defendant Edith Lowinger appeals from an interlocutory judgment of the Supreme Court, New York County (Barbara Kapnick, J.), entered on or about October 31, 2000, which, following a bifurcated jury trial on the issue of liability, found that she agreed to provide plaintiff and her children certain financial benefits in exchange for her religious conversion to Judaism, and from an order of the same court and Justice, entered on or about April 6, 2000, insofar as it declined to dismiss the complaint as against her.

This appeal presents the question of whether an alleged oral agreement to provide one with various financial benefits in exchange for undergoing religious conversion is enforceable.

Plaintiff is a South Korean native who is seeking to enforce an oral contract entered into with her mother-in-law, Edith, a defendant. Defendant, the principal of a lucrative family import-export business, and her family, including her son, Louis, plaintiff's spouse, are practicing Orthodox Jews. The agreement arose as a result of plaintiff's marriage to Louis. Plaintiff met Louis in 1973 while working as a flight attendant for Northwest Airlines. They were married in a civil ceremony in Seoul, Korea after a one-year whirlwind courtship, in which Louis pursued plaintiff across the globe. No one from Louis's family attended the wedding and plaintiff met none of her husband's family before the wedding. After the marriage, plaintiff followed Louis on his world-wide travels on behalf of the family business; the company had apartments in Tokyo, Paris and Hong Kong, among other locales. Plaintiff soon discovered that Louis had always been dependent upon his family's largesse and suffered from mental instability. For example, Louis followed plaintiff 24 hours a day, even into the bathroom, did not allow her to make or receive phone calls, and slept in front of the bedroom door to prevent her from escaping. At one point, plaintiff attempted suicide; however, eventually, the couple had three children and resided in Larchmont, New York.

According to plaintiff's trial testimony, she and defendant allegedly reached the oral agreement in January 1980, after Louis had badgered her about converting to Judaism and her mother-in-law had voiced concern that the oldest child could not enroll in the local orthodox yeshiva because plaintiff was not Jewish. In the agreement, the mother-in-law purportedly promised to support plaintiff and her children if she converted to Judaism and raised her children as Orthodox Jews. Specifically, the mother-in-law was said to have promised that if plaintiff converted, she would provide 1) a "wonderful home" for her, Louis and the children; 2) a generous lifestyle for the rest of their lives; 3) the best education that money could buy for the children; 4) financial support at the same level for plaintiff, the children and Louis for the rest of their lives; 5) employment in the family business for the children if they wished it; 6) testamentary financial provisions for plaintiff's children equivalent to those of the mother-in-law's other grandchildren; 7) acceptance of plaintiff and her children as members of the family.

Plaintiff allegedly agreed to the offer but never disclosed her conversation with defendant to anyone, not even family members. She and Edith never discussed the agreement or related matters again and there was no written memorialization of it. Soon after the agreement was reached, Edith arranged for the religious conversion of plaintiff and the children in Israel by the Chief Sephardic Rabbi of Israel. On a subsequent trip to Israel, the couple was married in a religious ceremony. Upon plaintiff's conversion, Edith proved to be as good as her purported word. She provided the family with a 27-room mansion in Harrison, New York situated on 2 acres, plaintiff's petty cash stipend was increased from $200 to over $12,000 per month and plaintiff was given a no-limit charge card. Her annual support increased to approximately $500,000, and for the first time, plaintiff and her children were invited to family functions at the clan's Borough Park compound. Edith attended the children's bat and bar mitzvahs and their graduations from yeshiva. However, in 1993, when plaintiff commenced divorce proceedings against Louis in Supreme Court, Westchester County, all financial support stopped. This action was commenced in 1995 in Supreme Court, New York County on behalf of plaintiff and her children seeking, in essence, specific performance of the alleged oral contract.

Defendant first attacked the complaint after joinder of issue, but prior to discovery, by motion to dismiss and/or for summary judgment. Plaintiff cross-moved for leave to file an amended complaint. The IAS court granted the cross-motion in part and denied it in part. Upon appeal, this Court modified the IAS court's order by permitting plaintiff to amend the complaint to include a claim sounding in breach of oral contract. The Court held that there were issues of fact as to whether plaintiff's religious conversion constituted part performance and unconscionable injury, which could remove the alleged oral contract from the Statute of Frauds (Lowinger v Lowinger, 233 A.D.2d 236).

Upon remand to the trial court and after discovery was completed, defendant moved for summary judgment on the grounds that the alleged oral agreement was barred by the Statute of Frauds, that the agreement was too vague to be enforced and that enforcement of the agreement would be against public policy. Defendant also claimed that plaintiff's conversion was not unequivocally referable to defendant's alleged promise of the mansion and generous future support; it could also be attributed to Louis' desire that the children attend an orthodox yeshiva.

The court (Barbara Kapnick, J.), in an order entered April 6, 2000, held that this Court's decision (Lowinger v Lowinger, supra) had decided the issues raised by defendant and would not permit them to be reargued by summary judgment motion. The only remaining issues were said to be whether the equitable doctrines of part performance and/or equitable estoppel barred application of the Statute of Frauds and whether, after discovery, defendant was unable to demonstrate that the equitable doctrines were inapplicable as a matter of law. Questions of fact were said to remain "as to whether plaintiff's conversion and defendant's acts thereafter are solely and `unequivocably referable' to an oral promise allegedly made by the defendant; whether they are `unintelligible or at least extraordinary,' explainable only with reference to the oral agreement" (citations omitted). The court further held that the enforcement of such an agreement would not violate public policy, that the matter could be decided by settled principles of contract law and that no inquiry into religious law was necessary.

At the bifurcated trial, the issue was limited to whether or not the parties ever made an oral agreement and, if so, what were its terms. In addition to the testimony elicited from plaintiff recounted supra, both parties introduced testimony from religious experts on conversion to Judaism, and defendant testified. The expert testimony conflicted as to whether the rabbi who performed the conversion would have inquired as to the motive for the conversion, plaintiff's...