Spertell v. Hendrix

• Decision Date: 28 April 1983
• Citation: 461 N.Y.S.2d 823,93 A.D.2d 788
• Parties: Beverly SPERTELL, Plaintiff-Respondent, v. Curtis HENDRIX, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 823

461 N.Y.S.2d 823

93 A.D.2d 788

Beverly SPERTELL, Plaintiff-Respondent, v.Curtis HENDRIX, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 28, 1983.

T. Robinson, New York City, for plaintiff-respondent.

R.G. Cushing, East Hampton, for defendant-appellant.

Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered November 6, 1981, which, inter alia, granted plaintiff's motion to dismiss the affirmative defense of statute of frauds, unanimously affirmed, without costs or disbursements.Order, Supreme Court, New York County, entered February 3, 1982, which, inter alia, denied defendant's cross-motion for leave to serve an amended answer, unanimously affirmed, without costs or disbursements.

As Special Term aptly noted, an express agreement between a cohabiting unmarried couple to compensate one of the parties for services rendered in connection with such a venture is enforceable even without a writing.(Morone v. Morone, 50 N.Y.2d 481, 488-489, 429 N.Y.S.2d 592, 413 N.E.2d 1154, McCall v. Frampton, 81 A.D.2d 607, 438 N.Y.S.2d 11.)Thus, the affirmative defense of statute of frauds was properly dismissed.While we agree that defendant's subsequent cross-motion for leave to serve an amended answer was properly denied, Special Term assigned an improper reason for its determination.It found that the application was moot since plaintiff's service of a supplemental complaint would require a new answer.An answer to a supplemental pleading, however, should be limited to a response to the new matter alleged.(See3 Weinstein-Korn-Miller, New York Civil Practice, § 3025.32.)Since defendant sought leave to set forth a "more detailed" answer and to assert counterclaims to the causes of action alleged in the original complaint, his motion was not rendered moot by the grant of plaintiff's motion to serve a supplemental complaint.To the extent, however, that defendant was attempting to reassert the previously dismissed defense of statute of frauds and counterclaim of slander a grant of leave would have been improper.The other proposed affirmative defenses based on "public policy" are patently without merit, as is the objection that the complaint is defective as "vague and indefinite."The complaint is sufficiently stated to give notice of the transactions intended to be proven (seeCPLR 3013).If the complaint were vague and indefinite, as...