[*1]
O'Reilly v O'Reilly
2005 NY Slip Op 51297(U)
Decided on August 15, 2005
Supreme Court, Rockland County
Smith, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 15, 2005
Supreme Court, Rockland County


Rori O'Reilly, Plaintiff,

against

Aida O'Reilly, and DOES 1 through 10 Inclusive, Defendants.




1835/05



Craig E. Johns, Esq.

Attorney for Plaintiff

154 South Middletown Road

Nanuet, New York 10954

Alan M. Simon, Esq.

Attorney for Defendant

222 Route 59, Suite 110

Suffern, New York 10901

Mary H. Smith, J.

This action arises out of an alleged oral agreement between a mother-in-law, defendant, Aida O'Reilly, and her daughter-in-law, plaintiff, Rori O'Reilly. In this case, Rori O'Reilly seeks to enforce oral promises Aida O'Reilly allegedly made upon which Rori O'Reilly claims to have detrimentally relied.

This action is the result of an unfortunate break-down in a family's relationship. Plaintiff married Aida O'Reilly's mentally disabled son Vincent O'Reilly in 1999 and in December of that [*2]year had their first child, a daughter, Taylor. Prior to plaintiff marrying Vincent, Aida O'Reilly had been Vincent's care giver as Vincent was not able to consistently hold down jobs. Further, even if Vincent had been able hold down his jobs, the jobs never paid sufficiently to support Vincent without assistance from his mother. As a result, Aida O'Reilly provided financial assistance to Vincent and his family on a regular basis. Plaintiff asserts, on information and belief, that Aida deducted Vincent on her taxes and collected social security based on his being a disabled dependent. After the couple was married, it is undisputed that Aida O'Reilly permitted them to reside in a cooperative apartment she owned in Los Angeles, California, and plaintiff avers that "[d]efendant did not want any remuneration ... [r]ather, defendant wanted me to take care of Vincent and our soon to be born daughter." (Affidavit of Rori O'Reilly, ("Rori Aff.") sworn to July 11, 2005 at ¶ 7).

It was during this early period of their marriage that Rori contends Aida made various oral agreements with her, specifically, Rori avers:

"When my pregnancy required me to stop working defendant not only provided us with the coop in which to live, but defendant paid all of our living expenses in excess of the minimal money received by Vincent from Social Security .... Defendant then advised me to find a condominium more suitable in which to raise a child. She agreed to purchase, and purchased same after I located an appropriate condominium. Defendant sold the coop and, from the sale proceeds, provided us with additional funds .... It was at this point that defendant expressly promised me weekly and monthly allowances, promised to fully maintain the condo and related expenses, promised to cover all our medicals and dentals and even to pay Vincent's psychiatric bills. Defendant then commenced to provide us with same. In addition, she provided us extra money for entertainment. In return for same, defendant indicated that she would require me to take care of Vincent with all of his emotional and mental disabilities, to take care of our newborn daughter, to maintain our household and to forego certain employment and educational opportunities.[FN1] ....
After soul-searching and considering what I was giving up, I agreed to forego my opportunities in reliance on her promise to provide us with suitable living conditions and financial support."


(Rori Aff. at ¶¶ 8-14). Plaintiff further avers that later, when plaintiff was pregnant with the couple's second child, Aida O'Reilly requested that plaintiff move her family to Rockland County, New York because Aida O'Reilly thought the move would be good for her son Vincent. Plaintiff claims that based on Aida O'Reilly's continued promise to provide suitable housing and financial support, plaintiff moved her family to New York to a townhouse Aida O'Reilly [*3]purchased for them in Suffern, New York in June/July, 2001. Aida O'Reilly not only purchased the house, she also paid the common charges, mortgage and taxes, as well as paid for the repairs and upgrades made to the house. Aida O'Reilly continued to provide them with overall financial support as well. While not critical to the instant motion, it appears that Vincent eventually moved back to California in or about the Fall, 2004 due to a falling out with plaintiff [FN2], and, sadly, died on January 7, 2005 from arteriosclerotic heart disease.

In her complaint, plaintiff alleges that defendant breached her promise of support in or around September, 2004 when she "ceased paying the monthly expenses for the household and closed the bank account that was used by the couple." (Complaint at ¶ 25). Not only did Aida O'Reilly stop paying the bills, but Aida O'Reilly also started eviction proceedings against Rori and her children. According to plaintiff, these eviction proceedings began shortly after Vincent's funeral, when plaintiff refused Aida O'Reilly's offer that as long as she and the children moved back to California, Aida would continue to support them and provide them with a suitable home.

The eviction proceeding was brought in Village of Suffern Justice Court. On May 9, 2005, Matthew J. Byrne, Village Justice, rendered a decision and order which granted petitioner Aida O'Reilly a judgment of eviction finding that there was no landlord tenant relationship between the parties, and, at best, there was a license agreement which had been properly revoked by virtue of the ten day notice to quit dated October 22, 2004.

The parties are at odds over whether the issues involved in this proceeding (i.e., part performance/promissory estoppel) were brought before the Village Justice. The Court finds this issue to be of no consequence since Justice Byrne is not vested with equity jurisdiction and could not have addressed the claims set forth in this action. Furthermore, Justice Byrne does not address these issues in his decision and order of May 9, 2005.

This action was instituted prior to Justice Byrne's decision and order of May 9, 2005 and in this action, pursuant to her Order to Show Cause, plaintiff sought to stay that eviction proceeding. This Court did not issue a stay of the eviction proceeding since a negative decision on the eviction proceeding would have rendered this action largely moot and further, the parties agreed to stay any warrant of eviction pending the Court's determination of the instant motions on submission. Thus, plaintiff now seeks an injunction against defendant's future eviction attempts (including a permanent stay of the enforcement of the judgment of eviction) as well as an injunction requiring that defendant pay plaintiff and her children the support she had been providing to Vincent and his family prior to his death. The allegations of the complaint are [*4]based on the theories of promissory estoppel and part performance, and plaintiff seeks to take the oral contracts out of the Statute of Frauds based on these equitable theories.[FN3]

Aida O'Reilly has cross-moved to dismiss the complaint pursuant to CPLR 3212.[FN4] In her affidavit, Aida O'Reilly denies that she ever made any of the promises plaintiff alleges her to have made. Thus, she states "I have never promised to support plaintiff in any way, manner or form, nor am I obliged by any law to render such support." (Affidavit of Aida O'Reilly "Aida Aff.", sworn to April 5, 2005 at ¶ 4). Defendant contends that she has been advised by her attorney that "any such promise, if made, can only be enforceable or established via a written document. There is no written document but merely oral statements in this regard." (Id. at ¶ 5). With regard to defendant's purchase of the townhouse, defendant avers that the house was purchased with her own money. In addition, defendant contends that there is currently another action pending in court in California concerning these same allegations and, as such, this action should be dismissed based on this prior pending action. Because this bare allegation is all that has been provided in the context of defendant's motion to dismiss based on a prior pending action, and the Court was not even provided with a copy of the complaint from the California action, the Court is not addressing this aspect of defendant's motion since it is not sufficiently briefed.

LEGAL DISCUSSION

Defendant's motion to dismiss is based on her contention that both of the alleged oral promises she made to plaintiff are barred by the Statute of Frauds. Thus, even assuming all of [*5]plaintiff's allegations to be true that defendant made these oral promises to plaintiff, plaintiff's claims are unavailing as a matter of law. Thus, any oral promise that plaintiff and her children could live in the house purchased in Suffern, New York would be barred by General Obligations Law ("GOL") § 5-703(1). That statute provides:

"1. An estate or interest in real property, other than a lease for a term not exceeding one year ... cannot be created, granted, assigned, surrendered or declared, unless .... by a deed ....
2. A contract for the leasing for a longer period than one year ... is void unless the contract or some note or memorandum thereof ... is in writing, subscribed by the party to be charged ...."




(GOL § 5-703). Likewise, plaintiff's claim that defendant orally promised to financially support plaintiff and her children for the rest of their lives is barred by GOL § 5-701(a)(1) which provides:
"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 be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime."


(GOL § 5-701(a)(1)).

In opposition to defendant's motion and in support of her motion for a preliminary injunction, plaintiff argues that the oral agreements should be taken out of the Statute of Frauds based on theories of promissory estoppel and part performance. As much as the Court would like to side with plaintiff in this case, and, at a minimum, require that Aida O'Reilly live up to her promise of providing the family with suitable housing, the law, unfortunately, requires dismissal of this action.

The facts of this case are virtually identical to the facts in the case of Lowinger v. Lowinger, 287 AD2d 39, app. denied, 95 NY2d 605. In that case, plaintiff, a daughter-in-law, sought to enforce an oral agreement allegedly made by her mother-in-law. In that case as in this one, the husband suffered from mental instability and "had always been dependent upon his family's largesse ...." (Lowinger, supra, 287 AD2d at 41). The couple had three children together and resided in Larchmont, New York. In that case, plaintiff claimed that defendant mother-in-law promised that if plaintiff converted to Judiasm, defendant would provide them with, among other things, (1) a wonderful home (2) a generous lifestyle (3) an excellent education for the children, and (4) "financial support at the same level for plaintiff, the children and Louis for the rest of their lives." (Id.) In apparent reliance of those promises, plaintiff converted to Judiasm and the mother-in-law lived up to her end of the bargain by giving them a 27-room mansion in Harrison, New York, a stipend of $12,000 a month and a no limit credit card. But when divorce proceedings were initiated, the mother-in-law's financial support ceased. Plaintiff commenced an [*6]action to require the mother-in-law's specific performance of the oral contract. In that case the lower court denied the pre-trial motions to dismiss, and after the trial in which judgment was entered in plaintiff's favor, the Appellate Division, First Department, held that the trial court erred in denying defendant's motion to set aside the verdict. Thus, the Court held that "the alleged oral agreement at issue here may not be enforced inasmuch as it is too vague and falls within the Statute of Frauds." (Lowinger v. Lowinger, 287 AD2d 39, 44). The Court found that the oral agreement to support financial support to plaintiff and her children for their lifetimes violated GOL § 5-701(a)(1) since it was an agreement that could not be fully performed within one year. Furthermore, the Court found that the mother-in-law's agreement to provide them with a wonderful house violated GOL § 5-703(a) which requires a writing for the transfer of realty.

With regard to plaintiff's argument that her part performance removed these oral agreements from the Statute of Frauds, the Court held:

"Plaintiff failed to meet the standard of showing that her performance of the oral agreement was 'unequivocally referable' to the oral agreement ... In order to do so, she needed to demonstrate that the conduct was 'was unintelligible or at least extraordinary', explainable only with reference to the oral agreement."


(Lowinger, 287 AD2d at 45; quoting Anostraio v. Vicinanzo, 59 NY2d 662, 664).[FN5] Furthermore, the Court found that even if plaintiff had been able to establish part performance, the trial court should have nevertheless set aside the verdict since agreements to "provide financial support" or provide a "wonderful house" "must fail as not subject to specific measurement" and too vague for enforcement. Finally, the Court held that "[p]laintiff's assertion of the equitable doctrine of promissory estoppel, in attempting to avoid the affirmative defense of the Statute of Frauds, is impermissible here ...." (Id. at 39; citing Cohen v. Brown, Harris, Stevens, Inc., 64 NY2d 728). The Court specifically found that "plaintiff failed to meet the doctrine's unconscionable injury requirement in that the injury she alleges, her unhappy 20-year marriage to Louis, pre-existed and [*7]did not result from her conversion or being an observant Jew for 15 years ...." (Id.; see also Asgahar v. Tringali Realty, Inc., 2005 WL 1023108 [motion to dismiss complaint properly granted because "evidence submitted demonstrated that there was no clear and unambiguous promise upon which the plaintiffs could have reasonably relied to sustain a cause of action for breach of contract on a theory of promissory estoppel"]; see also Ewerse v. Elghanayan, NYLJ 8/3/93 at 22, col. 2 [motion to dismiss action granted where allegations were that defendant orally agreed to provide plaintiff with, inter alia, the use, title and possession to a penthouse apartment in a building owned by defendant and to continue to pay plaintiff her bi-weekly salary of $1,050.00 a month in perpetuity if plaintiff agreed to subordinate her education and career to be defendant's companion, confident and business advisor to defendant since Court found that the alleged agreement was unenforceable as a matter of law under the Statute of Frauds §§ 5-701(1) and 5-703]).

The cases upon which plaintiff relies where part performance is found to take a contract for real property out of the statute of frauds are distinguishable from the facts of this case. These cases either involve landlord/tenant situations where the parties have been acting as if a lease existed (i.e., there has been part performance through the payment and acceptance of the monthly rental and the tenant's use/occupancy of the premises) and the landlord is required to execute the lease in accordance with the parties' conduct,[FN6] or involve cases in which the plaintiff has purchased property and paid the costs associated with the property's taxes, maintenance and improvements, but has placed the property in the name of defendant for various business reasons with the understanding that the title to the property is being held by the defendant in name only, with all benefits of property ownership to inure to plaintiff.[FN7] [*8]

This case is unlike those cases since Rori's part performance and detrimental reliance arise in a context wherein Rori's actions are as easily explained by her marriage to a disabled man and her having young children such that pursuing her career or future educational goals would not necessarily be in keeping with raising a young family. Because the statute of frauds bars both of plaintiff's claims (i.e., (1) that she and her children should be permitted to continue to reside in the house; and (2) that defendant should be enjoined and required to continue to financially support plaintiff and her children for, presumably, the rest of defendant's life), the action must be dismissed as a matter of law. Given the nature of plaintiff's relationship with defendant and defendant's son, and given her status as a full-time mother, plaintiff's alleged detrimental reliance in failing to pursue her career opportunities and/or her higher education, cannot be found to be specifically referable to her mother-in-law's alleged promise to provide suitable shelter and financial support. (See, e.g., Rosenheck v. Calcam Assoc., Inc., 233 AD2d 553; Di Siena v. Di Siena, 266 AD2d 673; Alba, P.C. v. Lindenman, 289 AD2d 550). Furthermore, even if the doctrine of part performance applied, the Court would nevertheless have to hold that the promise to provide suitable housing and financial support to be unduly vague and unenforceable as a matter of law. (Application of SUD v. SUD, 211 AD2d 523). The Court can only hope that there [*9]are sufficient funds in Vincent's estate such that plaintiff and her children can find their way in this world without the help of a woman, who, while not legally obligated to them, should be morally obligated to continue the shelter and support she had been providing to them during her son's lifetime.

Based on the foregoing, it is hereby, regrettably

ORDERED, that defendant's cross-motion to dismiss the complaint based on the Statute of Frauds is granted; and it is further

ORDERED, that plaintiff's motion for preliminary injunctive relief staying the enforcement of the judgment of eviction is denied.

Dated: New City, New York

August 15, 2005

___________________________

Honorable Mary H. Smith, J.S.C.

Footnotes


Footnote 1:Plaintiff claims her lost opportunities to be continuing her teaching career and/or pursuing job opportunities in productions as an assistant director and/or to pursuing her masters degree in teaching.

Footnote 2:If the facts as set forth in an affidavit (and attached letter) from a person who apparently helped Vincent during his times of need are true, Rori was not always the most caring and nurturing wife and it appears that Rori and Vincent were on their way to a divorce at the time of Vincent's death. (See Affidavit of Prraskovya Vays, sworn to April 4, 2005). As set forth more fully herein, the statute of frauds prevents this Court from being able to redress a wrong that it sees from the facts of the case (i.e., the eviction of a young family from a home in which they have lived for 4 years based on promises made by a family member that their housing needs would always be fulfilled). Thus, whether plaintiff's alleged mistreatment of Vincent justifies Aida O'Reilly's rather callous indifference towards her grandchildren by seeking to evict them from their home is, unfortunately, not within this Court's power to rectify as it is a moral issue rather than a legal one.

Footnote 3:The complaint also contains an allegation that money was used from Vincent's trust fund towards the purchase and upkeep of the house. However, the affidavits submitted in opposition to plaintiff's motion and in support of the cross-motion to dismiss has put this issue to rest. Thus, not only does Aida O'Reilly aver that only her own money was used to purchase the house, but in addition, the trustee of Vincent's trust avers that "[t]his Trust was not created and/or funded until long after Aida O'Reilly purchased a house at 4 Arapaho Court in Suffern, New York .... In fact as the Trustee of the Trust I was never even informed that Aida O'Reilly had purchased the home at that address in that it had nothing to do with the Trust ... The Trust is very specific about the potential use of the Trust money .... Therefore the only deductions from the Trust which were usual upkeep expenses on the modest Mulberry property, (around $2,000.00) brokers fees standard and ($10,000.00) per annum given to Vincent monthly." (Affidavit of Dominique Appleby, sworn to June 7, 2005 at ¶¶ 2, 3, 6, 7). Here, plaintiff has offered no further evidence in support of her bare allegation and, accordingly, this action must be dismissed despite this allegation since "'[i]t is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one." (Asgahar v. Tringali Realty, Inc., 2005 WL 1023108; quoting Meyer v. Guinta, 262 AD2d 463).

Footnote 4:While defendant refers to this motion as one to dismiss, but then cites to CPLR 3212 the summary judgment provision, the Court is nevertheless going to treat defendant's motion as a motion to dismiss based on CPLR Rule 3211(a)(5) "the cause of action may not be maintained because of .... statute of frauds."

Footnote 5:See also Baron v. Jeffer, 131 AD2d 411 (Appellate Division, Second Department, reverses lower court's denial of motion to dismiss causes of action based on oral agreement to support plaintiff for the rest of her life and to place a house in plaintiff's name because plaintiff's claims of part performance by her moving into the house and performing the duties required by the alleged oral agreement were not "of a character which is not 'unequivocally referable' to the agreement alleged, admitting of explanation without reference thereto"); Harrington v. Murray, 169 AD2d 580, 582 ("[p]laintiff's argument that her partial performance (e.g., providing guidance to defendant's daughters, guiding defendant in cultural situations and charitable activities, introducing defendant in cultural circles, decorating defendant's homes), excepted the agreement from the preclusive effect of the statute of frauds is unavailing since plaintiff's actions were not 'unequivocally referable' to the agreement alleged ...."); Brown v. Brown, 12 AD3d 176 ("[p]laintiff's allegations of breach of [oral] contract are not salvaged by his assertion of partial performance ..." ]; Robin v. Cook, NYLJ 10/30/90 at 22 col. 1 (motion to dismiss complaint alleging oral agreement between lesbian lovers that plaintiff could live in an apartment defendant purchased for her and pay plaintiff $600 a month in return for plaintiff's services of cooking, nursing, housekeeping, secretarial and chauffeur's services for the rest of defendant's life granted and plaintiff's argument of part performance could not assist her since the part performance was as equally consistent with the parties' intimate relationship).

Footnote 6:McKay Prods. Corp. v. Jonathan Logan, Inc., 54 Misc 2d 385 (sub-lessor was entitled to enforce sublease for a period of longer than one year based on the sub-lessor's execution of the sublease and the sub-lessee's use and occupancy and payment of rent for nine months based on sub-lessee's part performance); Tuttle, Pendelton & Gelston, Inc. v. Dronart Realty Corp., 90 AD2d 830 (motion for summary judgment denied since there were questions of fact raised concerning whether defendant's retention of rent when combined with plaintiff's making substantial improvements to the leased space were sufficient to take the lease out of the statute of frauds); Club Chain of Manhattan, Ltd. v. Christopher & Seventh Gourmet, Ltd., 74 AD2d 277, app. dismissed, 53 NY2d 703 (landlord's acceptance of new rent of $600 a month coupled with his failure to return or reject the written lease create factual controversy on issue of part performance); Special Event Entertainment v. Rockefeller Center, Inc., 458 FSupp 72 (court denies motion to dismiss complaint based on statute of frauds in commercial lease transaction since complaint sufficiently alleged equitable estoppel); Matter of Myers v. Blaise, 23 AD2d 518 (court reverses lower court's grant of summary judgment to landlord finding that tenants' part payment, substantial improvements and use possession and enjoyment raised sufficient questions of fact of whether part performance took contract to purchase real property out of statute of frauds); Brune v. Vom Lehn, 112 Misc 342, aff'd, 196 AD 907 (lease signed by lessor but not lessee would be specifically enforced).

Footnote 7: See McKinley v. Hessen, 202 NY 24 (plaintiff-brother and sister-defendant entered into agreement whereby plaintiff would purchase real properties and put title in defendant's name but that she would be holding the title for the benefit of plaintiff; court grants specific performance requiring defendant to convey properties to plaintiff holding that plaintiff entered into the agreement relying on his sister's promise and performed his part of the bargain and to allow statute of frauds to provide a defense to defendant would enable defendant to perpetrate a fraud]; Canda v. Totten, 157 NY 281 (plaintiff and defendant entered into agreement whereby defendant would bid on and purchase real property for plaintiff's benefit and after purchase, plaintiff reimbursed defendant for purchase price and paid all taxes, insurance and collected the rents; court orders specific performance requiring defendant to execute the deed and transfer property to plaintiff); Gallagher v. Gallagher, 135 AD 457, aff'd, 202 NY 572 (oral agreement that property conveyed to defendant was only for limited purpose and once purpose satisfied, defendant was to reconvey property back to plaintiff was subject to specific performance); Murphy v. Whitney, 140 NY 541 (court denies defendants' demurrer to an action which sought to set aside an alleged fraudulent conveyance of real estate which was obtained by undue influence over women who had life estate in the real property but who, pursuant to an oral agreement among family members, was to have the property pass to plaintiff, the last surviving heir to the property upon her death since women had received full consideration of the agreement that had been made for plaintiff's benefit); Waters v. Hall, 218 AD 149 (part performance took oral agreement concerning real property out of statute of frauds; property purchased with plaintiff's funds under agreement that defendant would hold title for benefit of plaintiff and plaintiff paid for the improvements, taxes, interest and carrying charges); Doty v. Rensselaer County Mutual Fire Ins. Co., 188 AD 29 (Appellate Division, Third Department, reversed lower court's denial of motion to amend complaint seeking specific performance by wife against husband based on his oral agreement to give her a life estate in real property in full satisfaction of his obligation to support and maintain her as his wife); Matter of Estate of Field, 11 Misc 2d 427 (court enforces oral pledges made by decedent shortly before death; decedent had partially performed one pledge and enforcement of the other pledge based on hospital's expending funds in reliance of oral pledge); O'Boyle v. Brenner, 189 Misc 1058, modified, 273 AD 683, app. dismissed, 301 NY 685 (lower court imposed constructive trust on property that was transferred pursuant to oral agreement that stepfather would leave the property to wife's children upon his death).