Walters v Perrino (2006 NY Slip Op 52319(U))

Walters v Perrino

2006 NY Slip Op 52319(U) [13 Misc 3d 144(A)]

Decided on November 29, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

RICHARD J. WALTERS and ELLEN P. WALTERS, Appellants,

against

MICHAEL P. PERRINO, JR., Respondent. ELLEN P. WALTERS, Appellant, MICHAEL P. PERRINO, JR., Respondent.

Consolidated appeal from judgments of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered June 6, 2005. The judgments, after a joint nonjury trial, dismissed the actions.

This consolidated appeal involves two small claims actions that were jointly tried. In one action, plaintiffs Richard J. Walters and Ellen P. Walters sought $625, which they alleged they had expended for hotel room charges in anticipation of the wedding of their daughter to defendant, which wedding was cancelled. In the second action, plaintiff Ellen P. Walters sought $5,000 for funds paid to the caterer in anticipation of the wedding. Following a joint nonjury trial, the District Court dismissed the actions, noting that section 80-a of the Civil Rights Law abolished causes of action for breach of an agreement to marry (see Gaden v Gaden, 29 NY2d 80 [1971]) and that, while Civil Rights Law § 80-b permits the recovery of property transferred in contemplation of marriage, there was insufficient proof at trial to establish that the monies expended were a gift to defendant made in contemplation of marriage, since the monies were paid to third parties as part of the ordinary expenses for the wedding.

In our view, the small claims actions must be dismissed for lack of subject matter [*2]jurisdiction. Since both actions seek the return of funds transferred in contemplation of a marriage which did not occur, they allege a singe cause of action which accrued upon the nonoccurrence of the marriage (see Civil Rights Law § 80-b). "A single cause of action may not be divided merely for the convenience of the plaintiff in seeking a forum" (2B Carmody-Wait 2d § 16:3, at 540). Because the total damages sought in the two actions exceed the $5,000 limit of the small claims court (UDCA 1801), the actions
must be dismissed (see Swiss Hamlet Homeowners Assoc., Inc. v Souza, ___ Misc 3d ___, 2006 NY Slip Op 26397 [App Term, 9th & 10th Jud Dists]; Dusenbury v Habisreitinger, 72 Misc 61 [App Term 1911]).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 29, 2006