McCall v. Frampton

• Decision Date: 16 April 1979
• Citation: 415 N.Y.S.2d 752,99 Misc.2d 159
• Parties: Penelope McCALL, Plaintiff, v. Peter FRAMPTON, Defendant.
• Court: New York Supreme Court

Page 752

415 N.Y.S.2d 752

99 Misc.2d 159

Penelope McCALL, Plaintiff, v. Peter FRAMPTON, Defendant.

Supreme Court, Westchester County.

April 16, 1979.

Richard A. Lefkowitz, New York City, for plaintiff

Beldock, Levine & Hoffman, New York City, for defendant.

DECISION

JOSEPH F. GAGLIARDI, Justice.

This is an action brought by plaintiff to recover damages for breach of an oral contract allegedly made between plaintiff and defendant in 1973 and to impose a constructive trust upon real property. Defendant has not joined issue but has made this motion for judgment of dismissal pursuant to section 3211 of the Civil Practice Law and Rules.

The complaint alleges three causes of action. In the first cause of action plaintiff alleges, Inter alia, that in and prior to 1972 plaintiff "had expertise and was engaged in the business of promotion and management of musicians involved in that phase of the music business known popularly as 'Rock and Roll' or 'Rock' and, during that period, besides doing so for compensation engaged in those activities without compensation for others"; that plaintiff met defendant in 1972 when defendant was a member of the musical group known as "Humble Pie" and when plaintiff was married to the group's manager (a Mr. Brigden); that in 1973 defendant "requested that McCall Leave her then husband and her then employment . . . and that she become associated with and work with Frampton in the promotion of Frampton as a musician representing to McCall that if she did so they would be equal partners in all proceeds from his employment in that field " (Emphasis supplied); that in reliance upon these representations plaintiff left her husband and her employment and went to live with defendant, "thereafter devoting all her resources, time and effort to the promotion and success of Frampton in his endeavors"; that beginning in 1973 plaintiff, at defendant's request, used all of her financial resources to support herself and defendant, and engaged in performing various services for defendant "including, but not limited to public relations and promotion work; aiding in costuming of Frampton and his associates; managing Frampton's personal finances and traveling with Frampton during tours conducted by him"; that at various times, from 1973 to 1978, defendant acknowledged plaintiff's efforts both in public and in private and shared his receipts from his business with plaintiff, as well as bank accounts and other credit sources, and that both charged expenses incurred for the benefit of each to accounts maintained for that purpose "in accordance with their prior agreement"; in sum, that the parties were equal partners from 1973 through July, 1978.

In the second cause of action plaintiff alleges that in 1976 plaintiff, at defendant's request, "shopped for and selected a house and realty for the joint use of both" located in Croton-on-Hudson, County of Westchester, upon the representation by defendant that the house would be purchased and held for the benefit of both parties and that title thereto would be held jointly by plaintiff and defendant; that in December 1976 defendant did purchase the house selected by plaintiff, but did so in his name alone, representing to plaintiff that this was done for business reasons; that "(i)n reliance upon Frampton's representations and the trust and confidence McCall then had in him and as a result of the undue influence exercised by Frampton upon her, McCall permitted said property to be so acquired"; that, by reason of these allegations defendant "should be deemed to hold said house and real property in trust for McCall and for the mutual benefit of plaintiff and defendant."

In the third cause of action plaintiff alleges that in 1973 defendant requested her to leave her husband and employment and to live with him "and that she would then thereafter share with him all his earnings and benefits"; that plaintiff relied upon these representations, did leave her husband and her employment, began to live with defendant "and used for the benefit of both all her resources and efforts, leaving her without funds or resources of her own"; that defendant accepted these benefits from plaintiff during periods when his earnings were "non-existent or nominal"; that defendant, until July, 1978, ratified and confirmed the agreement with plaintiff and shared with plaintiff all of their joint benefits and earnings and resources; that "(i)n or about July, 1978, without McCall's approval or consent Frampton unilaterally terminated this arrangement, taking for his sole benefit those benefits, resources and earnings and leaving McCall bereft of any."

The complaint then prays the court to grant the following relief: On the first cause of action, an accounting of defendant's earnings from 1973 to date and a judgment equally dividing those earnings between the parties; on the second cause of action, a judgment that the real property in Croton-on-Hudson is held by defendant for the equal benefit of both parties and directing that the record title of the property be changed to show joint ownership; and on the third cause of action, "a judgment directing that Frampton account to McCall for his earnings from 1973 to date and that Frampton pay to McCall one half thereof and A portion of his earnings from the date of such judgment thereafter in an amount to be fixed by the court . . ." (Emphasis supplied).

Defendant now makes this motion to dismiss all three causes of action on the ground that each "is insufficient as a matter of law and fails to state a valid cause of action against defendant" (CPLR 3211(a)(7)) and on the ground that enforcement of the causes of action would violate the public policy of the State of New York, the Statute of Frauds, and would be "contrary to the doctrine of laches" (CPLR 3211(a)(5)).

In support of this motion to dismiss, defendant by affidavit of counsel seeks to bring before the court certain factual background material concerning the relationship between the parties during the years when they lived together. (Defendant denies the existence of any business or partnership agreement, claims that plaintiff's services were not needed to further his career, and insists that there was only a male-female relationship between them, from which plaintiff benefited economically.)

Plaintiff, in her opposing papers, objects to the submission of factual background data by defendant's counsel on the ground that counsel does not possess personal knowledge of the relationship between the parties. She then proceeds in her own affidavit to present a counter-version of the events in question and asks that the court give notice if the motion is to be considered as one for summary judgment. (CPLR 3211(c) states, in part: "Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.") In such case, plaintiff asks leave to submit additional papers. In reply, defendant submits his own personal affidavit in which he incorporates by reference all of the factual material contained in his counsel's affidavit.

This court will not consider this as a motion for summary judgment. The sole question presented is whether the complaint states a cause of action against defendant and whether it can withstand the challenge brought on the ground of the Statute of Frauds and on the ground of public policy. "As such, we accept, as we must, each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts." (219 Broadway Corp. v. Alexander's Inc., 46 N.Y.2d 506, 414 N.Y.S.2d 889, 387 N.E.2d 1205, N.Y.L.J., March 14, 1979, p. 1, col. 1, at p. 18, col. 1.) If the complaint can withstand defendant's challenge, then the resolution of contested factual issues must await trial. (It should be noted that defendant's papers in support of this motion do not make any argument concerning the doctrine of laches, mentioned in the notice of motion, and laches will not be considered by the court.) The court, however, in examining the sufficiency of the complaint, does bear in mind that certain facts stand as uncontroverted.

In support of her argument that the complaint should not be dismissed, plaintiff relies principally upon the following cases: Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106; Dosek v. Dosek (Conn.Sup.Ct., decided October 4, 1978, reported in 4 Family Law Reporter, October 31, 1978, p. 2828); McCullon v. McCullon, 410 N.Y.S.2d 226 (Sup.Ct., Erie County 1978)); Hewitt v. Hewitt, 62 Ill.App.3d 861, 20 Ill.Dec. 476, 380 N.E.2d 454; Carlson v. Olson (256 N.W.2d 249 (Minn.1977)). These cases are all distinguishable on their facts from the instant case, for there is no allegation herein, in the complaint or in the supporting papers, that plaintiff and defendant ever intended to marry each other, that they held themselves out to the public as husband and wife, or that the plaintiff and defendant were ever free to marry each other. There is no allegation that plaintiff ever changed her surname to that of defendant. (Apparently no children were born as a result of the sexual relationship between the parties.)

In Marvin v. Marvin, supra, the California Supreme Court, applying and developing the law of that forum (a community property state), held that contracts between non-marital partners should be enforced to the extent that the contract was not explicitly founded on the consideration of unlawful sexual services, despite the arguments to the contrary based on public policy. That court also held that in the absence of express contract, the court should enquire into the conduct of the parties to determine whether that conduct demonstrated the existence of an implied contract, partnership or joint venture. It further held that the court may also employ the doctrine of...