Van Brunt v. Rauschenberg

Decision Date09 July 1992
Docket NumberNo. 91 Civ. 5662 (JSM).,91 Civ. 5662 (JSM).
Citation799 F. Supp. 1467
PartiesWilliam Edwin VAN BRUNT, III, Plaintiff v. Robert RAUSCHENBERG, Defendant.
CourtU.S. District Court — Southern District of New York


Judith E. Siegel-Baum, Jaffe & Asher, New York City, for plaintiff.

Robert J. Kheel and William J. Borner, Willkie Farr & Gallagher, New York City, for defendant.


MARTIN, District Judge.

Plaintiff William Edwin Van Brunt, III ("Van Brunt") commenced this action against Defendant Robert Rauschenberg ("Rauschenberg"), a world renown artist, alleging, inter alia, breach of contract and conversion and replevin. Previously, this Court dismissed the complaint with leave to replead. Defendant Rauschenberg now moves, for the second time, for a dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.


Van Brunt met Rauschenberg in New York City in 1968 and the two maintained in a continuous personal and business relationship until July 1990. The two spent substantial amounts of time together for purposes of business and pleasure. Van Brunt alleges that throughout their twenty-two year relationship, he assisted Rauschenberg in creating sculptures, photographs, drawings, paintings, print editions, mock-ups for posters, advertisements, magazine covers, catalogues, and books.

In his amended complaint, Van Brunt alleges that Rauschenberg repeatedly promised to provide him with various examples of each of the production phases of work created. Additionally, Rauschenberg allegedly promised Van Brunt that he would (1) pay his living expenses; (2) reimburse his business expenses; (3) pay Van Brunt's income taxes.

Before the Court is Van Brunt's amended complaint, alleging actions in contract, unjust enrichment, promissory estoppel, constructive trust, conversion and replevin. Once again, Rauschenberg moves to dismiss the complaint for failure to state a claim.


A dismissal under 12(b)(6) for failure to state a claim should be granted only in certain limited circumstances. As the Second Circuit has stated:

To dismiss a complaint for failure to state a claim upon which relief can be granted, a court must accept plaintiff's allegations at face value, ... must construe the allegations in the complaint in plaintiff's favor, ... and must dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Rapf v. Suffolk County of New York, 755 F.2d 282, 290 (2d Cir.1985) (citations omitted). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991); Schmid, Inc. v. Zucker's Gifts, 766 F.Supp. 118, 121 (S.D.N.Y.1991).

1. The Breach of Contract Claim

The essential elements to pleading a breach of contract under New York law are the making of an agreement, due performance by the plaintiff, breach by the defendant, and damage suffered by the plaintiff. See Stratton Group, Ltd. v. Sprayregen, 458 F.Supp. 1216, 1217 (S.D.N.Y.1978). Under Fed.R.Civ.P. 8(a)(2), the elements of a claim for a breach of contract need not be separately pleaded. All that is necessary is a concise and plain statement of the claim showing that the pleader is entitled to relief. Nordic Bank, PLC v. Trend Group, Ltd., 619 F.Supp. 542, 561 (S.D.N.Y.1985).

Despite Van Brunt's ostensible compliance with pleading requirements, Rauschenberg argues that dismissal is nevertheless proper. First, Rauschenberg argues that dismissal is proper in that implied contracts arising out of personal relationships are not recognized in New York. Second, Rauschenberg contends that the alleged express promises are not sufficiently certain or specific to be enforceable. Third, Rauschenberg argues that parts of the contract claim must be dismissed as lacking in consideration or being barred by the statute of limitations and the statute of frauds.

Rauschenberg's argument that implied contracts arising out of personal relationships are not recognized in New York is quite simply irrelevant. While it is true that New York does not recognize such implied contracts, see, e.g., Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980); Trimmer v. Van Bomel, 107 Misc.2d 201, 434 N.Y.S.2d 82 (Sup.Ct.N.Y.County 1980), aff'd mem., 82 A.D.2d 1023, 441 N.Y.S.2d 762 (1st Dep't 1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1774, 72 L.Ed.2d 178 (1982), the plaintiff here does not seek to recover under an implied contract theory. Rather, Van Brunt alleges that various express agreements existed between him and Rauschenberg. In Morone, the New York Court of Appeals expressly reaffirmed the "long accepted ... concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together ... provided only that illicit sexual relations were not `part of the consideration of the contract'" (citations omitted).1Morone, 429 N.Y.S.2d at 594, 413 N.E.2d at 1156. This is not a case involving an illicit sexual relationship. Nor is it a case where the services provided were of the type usually rendered gratuitously. See, e.g., Trimmer, 434 N.Y.S.2d at 85 (plaintiff provided companionship only). As such, an express agreement between Van Brunt & Rauschenberg is enforceable under New York law.

Rauschenberg next argues that the amended complaint fails to identify any agreement sufficiently definite to be enforceable. The argument is without merit. In his amended complaint, Van Brunt alleges that Rauschenberg agreed to (1) pay Van Brunt's living expenses; (2) reimburse business expenses incurred by Van Brunt on behalf of Rauschenberg; (3) annually supply Van Brunt with two drawings and two paintings destined for exhibition from each of the series of works that Rauschenberg and Van Brunt worked on; (4) provide Van Brunt with one of each edition and two of each multiple or poster that Rauschenberg and Van Brunt worked on together; (5) pay Van Brunt's income taxes; and (6) transfer to Van Brunt the property on Captiva Island known as the "Fish House." In consideration for these promises, Van Brunt alleges that he promised not only to devote his life, both personally and professionally, to Rauschenberg, but also to perform various duties, including coordinating exhibitions and providing administrative services. As such, the amended complaint sufficiently sets forth a cause of action for breach of contract and the motion to dismiss must fail. Accord Kelley v. Galina-Bouquet, Inc., 155 A.D.2d 96, 552 N.Y.S.2d 305, 306 (1st Dep't 1990) (finding wife's breach of contract claim against husband sufficient where complaint alleged substantial business dealings prior to and during marriage).

This is not to say that the contract claims are to be sustained in their entirety. Specifically, Rauschenberg notes that some of the claims are for past consideration2 and others are barred by the statute of limitations and the statute of frauds. It is elementary that "past consideration is no consideration." Raymond Babtkis Assocs., Inc. v. Tarazi Realty Corp., 36 A.D.2d 694, 318 N.Y.S.2d 798 (1st Dep't 1971); 21 N.Y.Jur.2d, Contracts § 108 at 519 (1982). While past services may constitute valid consideration where there is a written agreement signed by the promisor, N.Y.Gen.Oblig.Law § 5-1105; Sarama v. John Mee, Inc., 102 Misc.2d 132, 422 N.Y.S.2d 582 (1979), the existence of a written agreement is not pleaded. Accordingly, the claims based on past consideration must be dismissed.

Similarly, other promises are barred by the statute of frauds and the applicable statute of limitations. Most notably, the allegations that Rauschenberg promised to transfer real property located in Captiva, Florida to Plaintiff must be dismissed since a promise to convey real property must be in writing to be enforceable.3 N.Y.Gen.Oblig.Law § 5-703 (McKinney 1989); Jonestown Place Corp. v. 153 W. 33rd St. Corp., 53 N.Y.2d 847, 440 N.Y.S.2d 175, 422 N.E.2d 820 (1981). However, the allegations that Rauschenberg promised to pay Van Brunt's tax obligations should not be dismissed. While a promise to "answer for the debt ... of another person" must be in writing to be enforceable by a creditor, see N.Y.Gen. Oblig.Law § 5-701(a)(2) (McKinney 1989); Posner v. Minnesota Mining & Mfg. Co., 713 F.Supp. 562, 564 (E.D.N.Y.1989), such a promise need not be in writing to be enforceable by the debtor.4G. Carver Rice, Inc. v. Crawford, 84 A.D.2d 866, 444 N.Y.S.2d 748, 749 (1981); Farnsworth, Contracts 2d § 6.3, p. 102 (1990); Calamari and Perillo, Contracts (2d ed.), § 19-5, p. 683 (1977).

Other claims are barred by the statute of limitations. In New York, breach of contract claims must be brought within six years from the time of the breach. N.Y.Civ.Prac.L. & R. § 213 (McKinney 1988); Barr v. McGraw-Hill, Inc., 710 F.Supp. 95, 98 (S.D.N.Y.1989). As such, the promises Van Brunt alleges as dating from 1969, 1979, 1982, and 1983 must be dismissed as time-barred.5

It is noted that many of the contract allegations are too ambiguous to determine whether consideration was past or present. Other allegations fail to provide dates, making it difficult to ascertain whether or not they are barred by the applicable statute of limitations. While we are mindful that an order for a more definite statement should not serve as a substitute for discovery, we are also mindful that this is the second time the Plaintiff has appeared before the Court with vague allegations. Accordingly, pursuant to Fed.R.Civ.P. 12(e), we order the Plaintiff to file a new complaint containing concise paragraphs describing each promise, the date of the promise, the relevant consideration, and the specific damage resulting from the breach. In drafting the new complaint, Plaintiff is...

To continue reading

Request your trial
33 cases
  • Bausch & Lomb Inc. v. Alcon Laboratories, Inc.
    • United States
    • U.S. District Court — Western District of New York
    • September 16, 1999
    ...relationship, standing alone, does not give rise to a confidential or fiduciary relationship. See, e.g., Van Brunt v. Rauschenberg, 799 F.Supp. 1467, 1474 (S.D.N.Y.1992) ("As case law makes clear, a close relationship between an employer and an employee is not enough" to give rise to a conf......
  • Tribune Co. v. Purcigliotti
    • United States
    • U.S. District Court — Southern District of New York
    • November 14, 1994
    ...been enriched at the plaintiff's expense and that the defendant's retention of the benefit would be unjust. See Van Brunt v. Rauschenberg, 799 F.Supp. 1467, 1472 (S.D.N.Y.1992). Therefore, it must be alleged that plaintiff conferred a tangible benefit upon the defendant. See Cunningham v. M......
  • Lennon v. Seaman
    • United States
    • U.S. District Court — Southern District of New York
    • September 8, 1999
    ...Inc. v. Warner Bros. Records, Inc., No. 81 Civ. 5437(PNL), 1983 WL 1144 *1-*2 (S.D.N.Y. Sept.22, 1983); but see Van Brunt v. Rauschenberg, 799 F.Supp. 1467, 1473 (S.D.N.Y.1992) (noting, in dicta, that there is some suggestion that the work-for-hire doctrine of the federal copyright law may ......
  • Eua Cogenex v. North Rockland Cent. School Dist.
    • United States
    • U.S. District Court — Southern District of New York
    • December 20, 2000
    ...(b) the enrichment was at the plaintiff's expense; and (c) defendant's retention of the benefit would be unjust." Van Brunt v. Rauschenberg, 799 F.Supp. 1467 (S.D.N.Y.1992) (quoting Hutton v. Klabal, 726 F.Supp. 67, 72 (S.D.N.Y.1989)); see also Mayer v. Bishop, 158 A.D.2d 878, 551 N.Y.S.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT