Summary
addressing merits of claim to recover on alleged promise by decedent that plaintiff would be compensated for her services and taken care of for the rest of her life
Summary of this case from Celentano v. FurerOpinion
Argued January 4, 1977
Decided February 15, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JAMES J. BATTISTI, J.
Guido J. Napoletano for appellants.
Theodore Guterman, II, for respondent.
MEMORANDUM. By this action plaintiff seeks compensation for housekeeping chores rendered pursuant to an alleged oral agreement between herself and the decedent, Edward Vogel, whose household she was sharing.
Three witnesses testified that they heard Vogel say he would "take care of" plaintiff. None recalled any reference to a specific date. The claim itself was not filed until 18 months after the decedent's death.
The words to "take care of", in the context of this record, are too vague to spell out a meaningful promise. Even if they were not, standing alone, they would be legally insufficient to support a finding that there was a contract to compensate plaintiff during her lifetime rather than one to do so by bequest. In the latter case, an enforceable agreement would be required to be in writing (EPTL 13-2.1, subd [a], par [2]). In short, plaintiff has not met her burden of proof as a matter of law (cf. Matter of Gorden, 8 N.Y.2d 71; Matter of Adams, 1 A.D.2d 259, affd 2 N.Y.2d 796).
Accordingly, the order of the Appellate Division is reversed and the complaint dismissed.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order reversed, with costs, and the complaint dismissed in a memorandum.