Opinion
7450/04.
Decided November 22, 2004.
Lisa Buttacavoli, pro se John P. Killard, pro se.
DECISION AFTER TRIAL
This is a plenary civil District Court action commended by Lisa Buttacavoli, hereinafter the plaintiff, against John P. Killard, hereinafter the defendant. This action commenced by way of endorsed summons and complaint is grounded on an allegation of breach of contract by the defendant. The plaintiff alleges in a two sentence statement, "Breach of contract [sic] defendant owes money for motorcycle loan and credit card bills. I transferred his credit card debt to my cards to lower the finance charges". The plaintiff seeks the sum of $8,000.00 in damages.
The defendant filed a one page pro forma answer. The defendant states in his answer, "I do not owe Lisa Buttacavoli this amount of money she claims. I was engaged to her and we shared everything together. We broke up she said I owed her money. I gave her A [sic] car, furniture, TV and money. I haven't heard from her in over 1yr 6 months now. She claiming I owe her $8,000.00. I don't owe her".
The Court conducted a bench trial of this matter on September 15, 2004. The Court makes the following findings of fact and conclusions of law.
FINDING OF FACT
The parties commenced to reside together in 1998. The defendant was invited to live with plaintiff at her parents' residence while she was still attending college. The defendant shared the plaintiff's bedroom with the consent of her parents. The defendant did not attend college during the relationship but, he was gainfully employed. Both parties testified at trial that it was their intent to share the expenses of their relationship, and in fact did so. Their cohabitation continued until March 04, 2002, and the relationship until May of 2002 when they broke it off.
In June 1999, the plaintiff took out a personal loan from European American Bank (hereinafter E.A.B.) for the sum of $9,400.00. She gave the proceeds of the loan to the defendant along with an additional sum of $2,000.00 from her Discover Credit Card for a total of $11,400.00. The defendant used this latter sum to purchase a Harley-Davidson motorcycle. The plaintiff testified that the $11,400.00 given to the defendant was given as a loan. However, there was no documentation created to evidence the alleged loan or the terms of its re-payment. The plaintiff testified further, that the defendant was to pay the loan back at a rate of $214.00 per month. There was no documentation of the defendants' agreement to make said monthly payments.
The plaintiff testified, that the defendant, while they were residing at her parents' home, in her bedroom, transferred a 1991 Chevrolet automobile to her father so as to allow her to have access and to use the automobile while she was attending college. In April 2001, when they had moved out of her parents' home and had moved into their own apartment at 124 Cow Road, East Meadow, New York, she suggested to the defendant that he ought to transfer the balance due on his credit card to her credit card account so as to reduce the interest rate. The Court finds, the defendant and the plaintiff had taken a vacation to England in 1999, while the plaintiff was still attending college full time. The defendant incurred their charges for the vacation in England on his credit card. The Plaintiff testified, that she on her own, without any evidence of the defendant's consent or request, transferred, by telephone in April 2001, the balance of $5,100.00 from the defendant's credit card to her Citibank credit card account. The plaintiff also testified, that they were sharing the expenses of their household. Further, there was no evidence of the defendant's promise or agreement to pay the $5,100.00 which was transferred. As a matter of fact, the plaintiff testified that the defendant paid the rent of $725.00 per month for the both of them for two and one half years at the East Meadow apartment while she attended college. Furthermore, the Court finds that, only in the last year of the parties relationship did the plaintiff share in the payment of their monthly rent in East Meadow from December 2001 through February 2002.
During their relationship, both parties had access to all of their automobiles. They had purchased appliances jointly for their apartment, and the defendant paid for their furniture exclusively. There was no evidence of an expectation of re-payment of either party to the other for the expenditures of their cohabitation. The Court finds, the parties maintained a joint bank account, giving both parties access to each other's finances and earnings, although the plaintiff was a college student for two and a half years of their relationship.
The Court finds, the 1999 loan from E.A.B. by the plaintiff provided for a 60 months re-payment scheduled at $214.00 per month. The Court finds further, the plaintiff made 24 payments on this loan at $214.00 per month. Furthermore, the Court finds, there was no evidence of either the plaintiff's expectation of the defendant re-paying or reimbursing her for these loan payments or of the defendant's promise to pay said loan.
The parties became engaged after the two (2) transactions which form the basis of this law suit in December 2001, and which terminated in May 2002. In February 2002, the plaintiff moved back to her parents' home alone, while the defendant was in New England. In April 2002, the plaintiff was once again living in her own apartment. The Court finds, the defendant initiated the breakup of the engagement, and the parties' relationship. The Court finds, the plaintiff kept the furniture the defendant had purchased for their apartment, while they resided in East Meadow after they broke up. At some time after the parties' breakup, the plaintiff asked the defendant to assist her in satisfying certain financial obligations she incurred. The defendant complied and gave the plaintiff $200.00 per month from March 2002 through December 2002. These payments were not for any specific identifiable debt. In January 2003, the defendant told the plaintiff he could no longer give her any money due to his own financial hardship. In September 2003, the plaintiff made a second request of the defendant to make payments to her, when the defendant refused this action was commenced.
ISSUES
Based on the Court's findings of fact, the issue(s) to be decided are: whether there was a contract or contracts for the defendant to re-pay the plaintiff the $11,400.00 at $214.00 per month based on funds given to him in June 1999, for the purchase of a Harley-Davidson motorcycle; and whether the defendant agreed to re-pay the plaintiff $5,100.00, for a debt transferred from his credit card account in April 2001 to the plaintiff's Citibank credit card account; and if there existed contracts for the defendant to pay the plaintiff, what were the terms and the nature of said contracts?
THE LAW
PRESUMPTION OF GRATUITIES
GIFT
"While it is an elementary rule that wherever service is rendered and received, a contract . . . or an obligation to pay compensation, will generally be presumed, ( citation omitted). It is generally agreed that among the factors which qualify the scope of this rule are to be reckoned, the circumstance that there exist between the party who rendered and the party who accepted the services in question a kinship by blood or marriage, and the circumstance that they were connected by domestic ties similar to those which are ordinarily associated with kinship. ( citation omitted)" 66 Am. Jur. 2d Restitution and Implied Contract § 51.
"The relationship between parties may repel the idea of a contract to pay for personal services rendered by one person to another. (citation omitted)" 66 Am. Jur. 2d Restitution and Implied Contract § 51.
"The general rule is that where persons live together as members of one family, a promise to pay for services of one to another is not implied from the mere rendition of services; on the contrary, where nothing more appears than the rendition of such services, it is generally held that the services are presumed to be gratuitous. (citation omitted). It is also clear that where services are rendered by one member of a family to another and they are such as are usually performed by persons in that relation, the presumption ordinarily arises that they are gratuitous." (citation omitted) 66 Am. Jur. 2d Restitution and Implied Contracts § 52.
"One of the reasons for the rule that where parties are members of the same family their services are presumed to be gratuitous is that one rendering service to the other receives reciprocal services in return." (citation omitted) 66 Am. Jur. 2d Restitution and Implied Contracts § 53. "This view becomes particularly reasonable on reflection on the principle frequently laid down that where mutuality of benefits is wanting, the services will not be presumed gratuitous. (citation omitted) Another reason underlying the presumption of a gratuity is that family life abounds in acts of reciprocal kindness which tend to promote the comfort and convenience of the family, and that the introduction of commercial considerations [bargained for exchanges] into the relations of persons so closely bound together would expel this spirit of mutual beneficence and to that extent mar the family unit". (citation omitted) 66 Am. Jur 2d Restitution and Implied Contracts § 53.
"Although in one sense the term "family" means a group of kindred persons, this is not the sense in which it is used within the rule (citation omitted) that services performed by one member of a family for another are presumed to be gratuitous. (citation omitted) The family relationship which gives rise to this presumption need not necessarily be one of blood kindred. The rule rests upon the idea of the mutual dependence of those who are members of one immediate family, and such a family may exist although composed of remote relations and even of persons between whom there is no tie of blood. (citation omitted). Within this rule the term "family" means a collection of persons who form one household , under one head and one domestic government , and who have reciprocal , natural , or moral duties to support and care for each other. (citation omitted). Nevertheless, the absence of such intimacy, affection, or trust as is common in most family relations may negative the existence of such a relation". (citation omitted) 66 Am. Jur. 2d Restitution and Implied Contracts § 54.
THE RULE IN NEW YORK
In New York it has been held, . . . "where the plaintiff, a woman who had been cohabiting with the deceased intestate, could recover for her services . . . as housekeeper, notwithstanding their meretricious relation. . . . [W]here there was an express promise by the intestate to pay her for services". . . . Rhodes v. Stone, 63 Hun 624, 17 NYS 561 [1892]. It was further held," The respondent cannot rely upon an implied agreement to pay her . . . [u]nless the evidence proves an express promise of the intestate to pay her, . . . if the illicit commence between the parties was any part of the basis of the promise to pay the respondent . . . the agreement was void " Rhodes v. Stone, supra. The relations of the parties did not necessarily forbid, an express contract between them . . ." Cooper v. Cooper, 147 Mass 370, 372, 17 NE 892, 894; Vincent v. Moriarty, 52 N.Y.S. 519, 524. In the latter case, the parties both unmarried at the time to anyone or each other, agreed to cohabit with one another, with the hope to enter into the lawful matrimonial state, and that their mutual earnings should be held and used for their joint benefit and support . . . and be their joint property, and in pursuance of their agreement did so live together. Subsequent to their agreement, the plaintiff brought an action for breach of contract to recover. Furthermore, the Court held, "There can be no recovery of damages for the breach of this unproven contract. On the other hand, there is no evidence of an express promise to pay her for her services." "[T]he promise to pay for services must be an express promise, not an implied one". Vincent v. Moriarty, supra; Lewis v. Stevenson, 86 NYS2d 407 [1949]; Matter of Napoli, 282 App Div 814, 815, 123 NYS2d 10, 11. In re Braloff's Will 145 NYS2d 457, 461 [Surrogates Ct. Nassau Co. 1955], where the claimant lived in decedent's house, and was a part of his household and sought to recover for service rendered to the deceased and his mother over a nine (9) year period, and for $13,000.00 of disbursements, and alleged a contract, the Court held "But claimant to recover upon her claim must do so on the basis of quantum merit for services rendered. It is argued that the inference of an implied contract to pay the reasonable value of services rendered, which may arise from mere rendition and acceptance of the services, cannot be drawn in this case because the relationship of the parties is such that it is natural that such service should be rendered without expectation of pay. Robinson v. Munn, 238 NY 40, [1924],. . . ." The court stated further, "There is no doubt that a contract may be implied between members of the same household where the renderer and recipient expected the reasonable value of the services to be charged and paid for." In re Braloff's Will, supra. However, the law in recent years has been ameliorated with respect to unmarried adults cohabiting without the benefit of marriage, and with regard to the "presumption of a gratuitous transfers".
The New York Court of Appeals in 1980, in a case titled Morone v. Morone, 50 NY2d 481, 429 NYS2d 592, reiterated the existing rule in New York as developed by the case law. That rule or rules being ". . . that while cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law ( Matter of Gorden, supra, at p. 75, 202 NYS2d 1, 168 NE2d 239; see Ann., 94 ALR3d 552, 559)". The Morone Court, in dicta, rejected the use of the term "meretricious" in describing these cohabitation relationships as it found the term pejorative and this Court is in agreement. The Morone Court held ". . . that an unmarried couple living together are free to contract with each other . . ." Matter of Gorden, supra at p. 75; Morone v. Morone, supra at 487. The Morone Court also rejected the presumption that services of any type are more likely the result of a personal, rather than a contractual bond. Morone v. Morone, supra. The Court also held, that where unmarried couples cohabit and have engaged in property and financial transactions as partners, not subject to the rules governing married couples, that the rule of Gorden's recognition of an express contract applied to these relationships. Morone v. Morone, supra at 487. The Court again, reaffirms the holdings of Rhodes v. Stone, supra; Vincent v. Moriarty, supra; see, also Matter of Adams, 1 AD2d 259, 149 NYS2d 849, affd 2 NY2d 796, that the Court will require an explicit and structured understanding of an express contract and will decline to recognized a contract which is implied from the mere rendition and acceptance of services. The difficulty with a Court implying a contract from the mere rendition and acceptance of services, where the parties cohabit without the benefit of marriage, is that it is not reasonable to infer an agreement to pay for services rendered when the relationship of the parties make it natural that the services were rendered gratuitously ( Matter of Adams, supra). Human experience reveals that in such cohabitation relationships, services are rendered to one another because they appreciate each other's companionship and/or because they find it a convenient or rewarding thing to do. Morone v. Morone, supra at 488. In the latter decision the Court states in dicta," The notion of an implied contract between an unmarried couple living together is, thus contrary to both New York decisional law and the implication arising from our Legislature's abolition of common law marriage". Morone v. Morone, supra; see, In the Matter of the Estate of Joseph H. Naumoff, 754 NYS2d 70, 73. An express agreement between unmarried persons living together is enforceable. Lee v. Slovak, 440 NYS2d 358, 81 AD2d 98, 100.
ANALYSIS
In the case before this Court, the plaintiff pleads in her endorsed summons and complaint a cause of action brought on an alleged contract or contracts for alleged loans made to the defendant. It is uncontested that the parties cohabited together without the benefit of marriage, shared living expenses and maintained a joint bank account. There was no evidence presented to the Court with respect to either the $11,400.00 transferred to the defendant from the plaintiff in June 1999, that the parties had in fact agreed that the transfer was a loan. Further, there is no evidence in this record that there were any terms to this alleged loan, or that the defendant agreed to re-pay the plaintiff $11,400.00. "Absent an express agreement, there is no frame of reference against which to compare the testimony presented, and the character of the evidence that can be presented become more evanescent. There is, therefore, substantially greater risk of emotion-laden after thought, not to mention fraud, in attempting to ascertain by implication what [financial obligations] if any, the parties intended to be [re-paid]". Morone v. Morone, supra at 488. "New York Courts have long accepted the concept that an express agreement between unmarried persons living together (citation omitted) is as enforceable as though they were not living together (Rhodes v. Stone, 63 Hun. 624, opn in 17 N.Y.S. 561; Vincent v. Moriarty, 31 App. Div. 484, 52 N.Y.S. 519), provided only that illicit sexual relations were not "part of the consideration of the contract" (Rhodes v. Stone, supra, at 17 N.Y.S., p. 562, quoted in * * * 595 Matter of Gorden, 8 NY2d 71, 75, 202 NYS2d 1, 168 NE2d 239, supra)". While cohabitation without marriage does not give rise to the property and financial rights which normally attends the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law ( Matter of Gorden, supra, at p. 75, 202 NYS2d 1). Here, the plaintiff plead a breach of contract by the defendant. Based on the evidence adduced at trial with respect to the June 1999 transaction of the alleged loan to the defendant of $11,400.00, there was no documentation that this latter sum loan, and the only evidence received that there was a loan is the testimony from the plaintiff. The Court finds upon examination of the plaintiff's testimony, that even if an oral agreement by the defendant to pay the sum of $214.00 a month over a period of 60 months existed, it would be an agreement requiring a written document to be enforced, i.e., General Obligation Law § 5-701 (a) (hereinafter G.O.L.), which is the New York State's codification of the Statute of Frauds. Pursuant to G.O.L. § 5-701(a);
"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof . . .;
2. Is a special promise to answer for the debt, default . . . of another person; * * *."
Consequently, the alleged promise of the defendant to re-pay the plaintiff the $11,400.00 at $214.00 per month, even if true, would require five (5) years to perform and, therefore, would be required to be in writing and signed by the defendant to satisfy the statute of frauds. G.O.L. § 5-701(a), and to be enforceable. This alleged oral express contract would not be an agreement within the normal rules of contract law ( Matter of Gorden, supra, at p. 75, 202 NYS2d 1, 168 NE2d 239 . . .).
With regard to the April 2001 transfer of the defendant's credit card balance to the plaintiff's Citibank credit card account, in the sum of $5,100.00, the record is void of any evidence of any terms of the defendants' alleged re-payment agreement of this latter sum. The Court will require an explicit and structured understanding of an express contract. Morone v. Morone, supra. Absent evidence of an express contract between unmarried cohabiting couples, the Court will not recognize a contract which is implied from the mere rendition and acceptance of services or money ( Rhodes v. Stone, supra; Vincent v. Moriarty, 31 App. Div. 484, 52 N.Y.S. 519, supra, also, Matter of Adams, supra); Morone v. Morone, supra. Consequently, the Court finds there was no evidence adduced at trial of an express contract between the parties for the defendant to re-pay the plaintiff for the $5,100.00. The Court would point out, that this latter sum reflected a joint debt of the parties' vacation to England during their cohabitation. The notion of an implied contract between an unmarried couple living together is, thus, contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriage.
Morone v. Morone, supra at 489.
CONCLUSION
The Court finds, based on the evidence adduced at trial, there was no express contract or contracts proven requiring the defendant to re-pay the plaintiff the sum of $11,400.00 for the funds provided to him in June 1999, for the purchase of the Harley-Davidson motorcycle. Further, that even if there was such an oral express agreement, and there was no evidence that there was, it would not have been enforceable pursuant to the statute of fraud, see General Obligations Law § 5-701(a)(1),(2). As to the transfer of the $5,100.00 from the defendant's credit card account to the plaintiff's Citibank credit card account, there was no evidence the parties intended that it be a loan or that the defendant re-pay same to the plaintiff. Furthermore, there was no evidence of any terms for re-payment of this sum resulting from expenses incurred by both parties during their cohabitation. An implied promise to pay will not be implied as to unmarried couples cohabiting as it is contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriages. Morone v. Morone, supra.
The Court finds the defendant is entitled to the entry of an order of dismissal of the complaint. The Clerk of the District Court is directed to enter an order of dismissal of the complaint in conformance with the within decision.
This constitutes the decision and order of this Court.
So ordered.