In December 2018, the Second Department Appellate Division addressed issues involving a longstanding, but non-marital, relationship between a man and a woman in Suffolk County.  [Baron v. Suissa, 2018 NY Slip Op 08453].  As New York family lawyers know, our state does not recognize “palimony” claims between parties who cohabited but did not marry.  However, an action may be instituted between the parties under other bases, including contract or equity claims. 

In 1992, Ms. Baron (Plaintiff) and Mr. Suissa (Defendant) met—while each was married to another person.  When then Defendant divorced his then wife around 1995, the parties began cohabiting.  They later moved into a house held and mortgaged in the name of the Defendant alone.  The Plaintiff claimed that parties had agreed that the house would be put in both parties' names once her divorce was final.  The Plaintiff also claimed that the parties had “an oral agreement to form an antiques business as partners and share equally in the profits and inventory of the partnership.”  Further, the Plaintiff claimed that the Defendant agreed that “in exchange for her [unspecified] domestic services and legal services to the Defendant's other businesses during the course of the relationship, to maintain and support her and share equally in the income and assets acquired during the relationship.”  When the parties broke up in 2008, the Defendant tried to evict the Plaintiff and her son from the residence, and, according to the Plaintiff, “removed from the house fixtures, antiques, and other personal property” in which the Plaintiff claimed an interest.

The Plaintiff filed an action against the Defendant “seeking relief in the nature of, inter alia, a constructive trust, and accounting of partnership assets, specific performance, recovery for unjust enrichment, conversion, and replevin, and to recover damages for fraud and slander.”  Although the Defendant made a motion to dismiss the complaint prior to answering, “The motion was misfiled by the Supreme Court and remained pending and undecided for several years.”  The Defendant made a motion in 2012, “for leave to renew his pending and undecided motion to dismiss” based on the statute of frauds.  The trial court granted the motion and dismissed the complaint, from which Plaintiff appealed.

The Appellate Court pointed that that while CPLR 3211 allows for dismissal based on the statute of frauds, under CPLR 3211(a)(5), “the [trial] court failed to consider the Plaintiff's contention in opposition to the Defendant's motion that her allegations of partial performance under the purported agreements were sufficient to permit her claims related to real estate to survive the absence of an appropriate writing.  With respect to the Defendant's alleged promise to retitle the house in both parties' names upon the Plaintiff's divorce and in consideration of her alleged $100,000 contribution to the purchase price, the Plaintiff's allegations were sufficient, in this early procedural state, to fall within an exception to the statute of frauds and survive dismissal.”  Further, the Second Department disagreed with the trial court's application of the statute of frauds to dismiss “the Plaintiff's allegations as to other express oral agreements between the parties, namely those related to her provision of domestic and legal services in exchange for support and sharing of business profits.  Agreements between persons cohabiting together are not per se required to be in writing.  Moreover, the Plaintiff's allegations as to the terms of the oral agreements do not otherwise fall within the statue of frauds.”  [citations omitted]  The Appellate Court went on to disagree with the trial court regarding the Plaintiff's seeking “the return of certain personal items that allegedly were owned by the Plaintiff separately prior to her relationship with the Defendant,” and held that this cause of action was not barred by the statute of frauds. 

 In all, the Second Department modified the lower court's order by substituting a denial of almost all of the relief requested by the Defendant in his Motion to Dismiss, with the exception of dismissing two causes of action pled by the Plaintiff relating to property allegedly owned by the Plaintiff's son as “the Plaintiff failed to allege facts that would support her right to assert those causes of action of her son's behalf.”

And now the action is back before the trial court.