Summary
holding that contract that facilitated adultery was void on public policy grounds and thus could not support IIED claim
Summary of this case from Truman v. BrownOpinion
No. 3498.
April 29, 2008.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about March 22, 2007, which, insofar as appealed from, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Tacopina Arnold, LLC, New York (Joseph Tacopina of counsel), for appellant.
Barry N. Berger, New York, for respondent.
Before: Saxe, J.P., Nardelli, Buckley and Catterson, JJ.
Defendant's promise to pay plaintiff money at the end of their cohabitation relationship is unenforceable because the main consideration therefor, under the parties' cohabitation agreement, was plaintiffs provision of "companionship (both platonic and sexual)" ( see Morone v Morone, 50 NY2d 481, 486; McRay v Citrin, 270 AD2d 191). Furthermore, the agreement, which was executed prior to plaintiffs divorce, facilitated adultery ( see Dulko v Reich, 276 AD2d 521). Plaintiffs causes of action for fraud, unjust enrichment, imposition of a constructive trust and intentional infliction of emotional distress are based on the promises contained in the agreement and therefore cannot be maintained ( see Jennings v Hurt, 160 AD2d 576, lv denied 77 NY2d 804; cf. Artache v Goldin, 133 AD2d 596, 600). We have considered plaintiffs other arguments and find them unavailing.