Melnick v. Press

• Decision Date: 12 August 2011
• Docket Number: No. 06–CV–6686 (JFB)(ARL).,06–CV–6686 (JFB)(ARL).
• Citation: 809 F.Supp.2d 43
• Parties: Geraldine MELNICK and Lonnie Schwimmer, Plaintiffs, v. Cary PRESS, Defendant.
• Court: U.S. District Court — Eastern District of New York

809 F.Supp.2d 43

Geraldine MELNICK and Lonnie Schwimmer, Plaintiffs,

v.Cary PRESS, Defendant.

No. 06–CV–6686 (JFB)(ARL).

United States District Court, E.D. New York.

Aug. 12, 2011.

Gerard Schiano–Strain, Wagner, Davis P.C., New York, NY, for Plaintiffs.

David H. Perlman, Brooklyn, NY, for Defendant.

memorandum and order

JOSEPH F. BIANCO, District Judge.

Plaintiffs Geraldine Melnick (“Melnick”) and Lonnie Schwimmer (“Lonnie”) (collectively “plaintiffs”) bring this diversity action against Cary Press (“Press” or “defendant”), seeking, inter alia, a partition of certain properties that Melnick claims to own jointly with defendant, the imposition of a constructive trust on another property, damages for defendant's alleged wrongful conversion of certain funds, a judgment in favor of plaintiff for the fair market rental value of defendant's use and occupancy of certain property after defendant's alleged ouster of plaintiff from that property, and punitive damages resulting from defendant's alleged wrongful conversion of funds and fraudulent taking of certain property. These claims each stem from the termination of Melnick's and Press's quasi-marital relationship in August 2006.

A bench trial was held on September 20, 22, and 23, 2010, and on November 12, 2010. Having held a bench trial, the Court now issues its findings of fact and conclusions of law, as required by Federal Rule of Civil Procedure 52(a), and concludes, after carefully considering the evidence introduced at trial, the arguments of counsel, and the controlling law on the issues presented, that: (1) the property at 15 Ohio Avenue should be partitioned and sold, and the proceeds should be divided equally between Melnick and Press, after payment of any remaining liens or encumbrances; (2) neither Press nor Melnick is entitled to reimbursement for any payments of carrying costs or other expenses associated with 15 Ohio, or for any rental income allegedly received from the property; (3) Press did not oust Melnick from 15 Ohio; (4) the Delray Beach property should be partitioned and sold and the proceeds should be divided equally between Melnick and Press, after payment of any outstanding mortgages, liens, or encumbrances; (5) Press is not liable to Melnick for conversion of insurance proceeds related to the Delray Beach property; (6) Press is not liable to Melnick for conversion of funds from a home equity line of credit on the 15 Ohio property; and (7) plaintiffs are not entitled to a constructive trust on the property located at 16 Nevada Avenue. Moreover, given the Court's findings, plaintiffs' claim for punitive damages regarding the fraudulent taking of the Delray Beach insurance proceeds and the 16 Nevada property is rendered moot.

I. Background

On December 20, 2006, plaintiffs filed the complaint in this case, seeking: (1) a partition of real property known as and located at 15 Ohio Avenue, Long Beach, New York (the “15 Ohio” property); (2) a partition of real property known as and located at 914 Foxpointe Circle, Delray Beach, Florida (the “Delray Beach” property); (3) an accounting for both of the aforementioned properties; (4) the imposition of a constructive trust on real property known as and located at 16 Nevada Street, Long Beach, New York (the “16 Nevada” property); (5) the partition of the 16 Nevada property; (6) an accounting for the 16 Nevada property; and (7) damages for defendant's alleged wrongful conversion of insurance proceeds and financing placed upon the properties. Defendant answered on February 16, 2007, and counterclaimed against Melnick for: (1) 50% of the maintenance expenses paid on 15 Ohio, on property located at 17 Ohio Avenue, Long Beach, New York (“17 Ohio”), and on the Delray Beach property, and (2) an accounting of monies expended by Melnick for the maintenance expenses at 15 Ohio, 17 Ohio, and Delray Beach. Defendant also counterclaimed against Melnick and Lonnie for wrongful conversion of property from the Delray Beach property.¹

On October 30, 2009, plaintiffs filed a motion for summary judgment. Press opposed the motion and cross-moved to dismiss plaintiffs' claim for the imposition of a constructive trust on 16 Nevada. On April 14, 2010, the Court held oral argument on the motions and denied both motions for the reasons set forth on the record. On April 28, 2010, Press moved for reconsideration of the Court's denial of his motion to dismiss the constructive trust claim. The Court denied Press's motion for reconsideration in an oral ruling made on June 10, 2010. On July 29, 2010, Press filed a motion for partial summary judgment. The Court orally denied defendant's motion on September 20, 2010 and memorialized its rulings in a written order issued on October 1, 2010, 2010 WL 3925253. The Court conducted a bench trial on September 20, 22, and 23, 2010, and on November 12, 2010.

II. Findings of Fact

The following section constitutes the Court's findings of fact ² pursuant to Federal Rule of Civil Procedure 52(a)(1). These findings of fact are drawn from witness testimony at trial (“Tr.”), the parties' trial exhibits (“Tr. Ex.”), and undisputed facts submitted by the parties in the joint pre-trial order (“PTO”).³

A. Melnick's and Press's Relationship

Melnick and Press began dating in or around the early 1980s. (Tr. 104:23–105:13; 306:18–307:7.) ⁴ Prior to dating Press, Melnick was separated from her husband, whom she later divorced and with whom she had two children, Eric and Lonnie Schwimmer. ( Id. 105:1–13.) In or around 1994, Melnick and Press began living together at the 15 Ohio property ( id. 106:21–22, 109:16–110:3, 308:14–17), which Press had purchased in or around 1985. ( Id. 307:21–22.) During the twelve years that they lived together, Press and Melnick were more than mere roommates-Press testified at trial that their relationship was sexual in nature ( id. 387:15–18), and Melnick described that they “lived like a married couple,” including sharing the same bed, socializing together, and interacting with each other's families. ( Id. 257:21–258:8.)

The Court finds that Melnick and Press had a quasi-marital relationship based upon the testimony cited in this section, which the Court found credible. For example, Melnick testified that she cooked for Press, cleaned the house, and assisted Press after he was injured in several accidents, including by taking him to the doctors, dressing his wounds, putting on his shoes and socks, helping him into the shower, and getting his medicine. ( Id. 110:8–111:1.) Press acknowledged that Melnick performed many of these activities and that she helped to maintain the household at 15 Ohio. ( Id. 37:24–38:13; 39:9–14.) Press, Melnick, and Melnick's children spent all holidays together, including Thanksgiving, Hanukkah, Father's Day, Mother's Day, and birthdays, and both of Melnick's sons testified that they considered Press to be a father-figure to them. ( Id. 70:5–71:19; 192:24–193:1.) Lonnie Schwimmer testified that he brought Press gifts for Father's Day and that Press was part of Lonnie's wedding. ( Id. 71:25–72:14, 75:12–19.) Press also testified that he bought many gifts for Melnick ( id. 36:5–8), and Melnick described that they had “a typical married relationship even though we didn't have the papers. We did everything together as a family with and without my children. We acted like a regular married couple. We went on vacations together, we went to affairs together, we went out, we had friends, we do everything I guess regular people do without the ring.” ( Id. 104:16–22.) During their relationship, Melnick was listed as the sole beneficiary of Press' last will and testament. ( Id. 36:25–37:9.)

Melnick also helped Press' family members, including Press' brother, his brother's girlfriend, and his mother, by, for example, bringing them food and helping them through medical treatments. ( Id. 112:2–13; 418:8–20.) In addition, when Melnick's son, Eric Schwimmer, was undergoing cancer treatment, Press cleaned Eric's wounds and helped to take care of him. ( Id. 37:10–19; 111:23–112:1.) Press also took care of Melnick after Melnick had back surgery. ( Id. 111:22–23.)

With regard to their finances, both Press and Melnick paid a portion of their living expenses, but neither kept track of precisely which bills or what amounts were paid by whom. ( Id. 34:3–8; 39:12–14; 112:19–24; 222:14–22.) Melnick also helped Press pay off a mortgage that Press held on real property he owned at 17 Ohio Avenue in Long Beach, New York (“17 Ohio”). By way of background, at some point during their relationship, Press transferred a 50% interest in the 17 Ohio property to Melnick. ( Id. 36:9–15.) Melnick did not pay Press any money for this transfer, which Melnick testified, and the Court credited, was made as a gift.⁵ ( Id. 106:25–107:2; 254:9–15.) Press also held a $121,790 mortgage on the 17 Ohio property, which Press took out to pay for renovation of the property at 15 Ohio. ( Id. 370:19–371:7.) After Melnick became a co-owner of the 17 Ohio property, she made approximately $40,000 in payments toward this mortgage. (Pl.'s Tr. Ex. 15; Tr. 215:22–24; 221:11–22; 314:19–315:1.) Subsequently, however, Melnick's name was taken off of the deed at 17 Ohio because, as described by Melnick, “[Press] wanted me to take my name off the deed because he said my credit wasn't good, since we did all the renovations at 15 Ohio and I built up all of these debts and if he wanted to purchase something else for us together, then it would be better for me to have my name off of this house.” (Tr. 222:2–8; 38:11–19.)

Ultimately, on August 29, 2006, after living together for twelve years, Melnick decided to end her relationship with Press and move out of the house at 15 Ohio. ( Id. 232:3–6.) Melnick testified that this decision was prompted by a change in Press's behavior after he was involved in several accidents and began taking pain medication. Specifically, Melnick described that Press had become...