The following papers numbered 1 to 11 were read on this motion by plaintiff for summary judgment.

Papers Numbered

Notice of Motion - Affirmation (Weiss) - Affidavit (Calautti)

- Exhs. (Collectively)^[FN1] ................................... 1-4

Answering Affirmation (Filato) - Affidavit (Grados) - Exh. .. 5-7

Replying Affirmation (Weiss) - Affidavit (Calautti) - Exh. .. 8-10

Letter dated 3/29/11 (Filasto) ............................. 11

Upon the foregoing papers, it is Ordered and adjudged that this motion by plaintiff for summary judgment on the complaint and dismissal of defendant's counterclaims is disposed of as follows:

The unrefuted proof establishes that the parties were to have been married, on June 26, 2010, that plaintiff had given defendant a diamond engagement ring, that the parties' undertook certain actions in furtherance of the planned wedding, that the parties' wedding plans were canceled, on or about, June 18, 2010, and that, despite plaintiff's then attorney's written demand, on July 1, 2010, for the return of the subject ring, defendant has refused to return same. This action seeking judgment directing defendant to return to plaintiff the ring or for a money judgment against defendant for the alleged value of the ring thereafter had been commenced.

Defendant had interposed her answer generally denying all of the allegations in the complaint and interposing two counterclaims purporting to sue plaintiff for violations of Penal Law sections 240.30 and 240.36(3), for Aggravated Harassment in the second degree and Harassment in the second degree; defendant seeks compensatory and punitive damages with respect to her counterclaims.

Presently, plaintiff, relying upon Civil Rights Law section 80-b, is moving for summary judgment on his complaint and for dismissal of defendant's counterclaims.Plaintiff avers that he had given the ring to defendant solely in contemplation of the parties' planned nuptials and that he had purchased same on November 27, 2009, from Papas' Gold City Jewelers, for the sum of $8,500.00. Plaintiff correctly maintains that Civil Rights Law section 80-b permits a cause of action for the return of chattel or the value thereof "when the sole consideration for the transfer of the chattel, money, ... was a contemplated marriage which has not occurred" and that the Court in its discretion may award a party possession of the chattel or a money judgment in lieu thereof. [*2]

Defendant opposes the motion, arguing that summary judgment is premature since discovery has not taken place, and that plaintiff has failed to establish the "proper value" of the ring since he has not proffered an expert appraisal of same and there is no proof that it had been plaintiff who in fact had paid for the ring. Defendant has submitted an affidavit wherein she avers that the subject ring has been lost and she requests that the Court therefore not impose judgment directing her to return the ring.

Initially, the Court deems defendant's failure to properly have verified her answer to now be corrected in light of the submission of her verification herein. See CPLR 2001.

Based upon the record at bar, plaintiff prima facie has demonstrated entitlement to judgment herein on his claim predicated upon Civil Rights Law section 80-b and for dismissal of defendant's counterclaims. With respect to defendant's counterclaims, notably, defendant completely has failed to address plaintiff's argument that there is no viable private cause of action for violations of the Penal Law. Defendant's failure to have addressed plaintiff's argument supporting dismissal of defendant's counterclaims necessarily is deemed a concession as to the correctness of plaintiff's legal argument. See Kuehne & Nagel, Inc. v. F. W. Baiden, 36 NY2d 539, 544 (1975); Springer v. Keith Clark Pub. Co., 191 AD2d 922 (3rd Dept. 1993), lv. to app. dsmd. 82 NY2d 706 (1993); John William Costello Associates, Inc. v. Standard Metals Corp., 99 AD2d 227, 228 (1st Dept. 1984), app. dsmd. 62 NY2d 942 (1984).^[FN2] Defendant's counterclaims are hereby dismissed.

Based upon plaintiff's prima facie demonstration of entitlement to judgment pursuant to Civil Rights Law Section 80-b, it became incumbent upon defendant to raise a triable issue of fact with respect thereto. This she has failed to do.

The general denials in defendant's answer are insufficient to raise any triable issue of fact. See Nash v. Baumblit Construction Corp., 72 AD3d 1037, 1039 (2nd Dept. 2010); In re Driscoll, 273 AD2d 381 (2nd Dept. 2000).

Moreover, the Court observes that defendant, in her opposition papers, does not specifically argue that plaintiff does not have [*3]the right to recover the engagement ring; rather, defendant maintains that plaintiff has failed to prove that it had been he who paid for the ring and what is the ring's value. Pointedly, defendant contends that plaintiff has failed to establish the proper market value of the ring by submitting an appraisal or expert opinion thereon, that she is entitled to discovery with respect thereto, and that plaintiff is not entitled at this time to summary judgment.

This Court disagrees. Defendant's wholly unsupported speculation that someone else may have purchased the ring not only is directly belied by plaintiff's averment that he had purchased the ring, but the submitted copy of plaintiff's sales receipt, which specifically describes the subject ring and identifies the "customer's" name as "Sal Culatti," and stating plaintiff's telephone number, which defendant does not challenge as being incorrect, buttresses plaintiff's claim and puts this feigned issue to rest.

As to defendant's contention that plaintiff has failed to establish the proper value of the ring, the Court must first note that it solely is defendant's action allegedly in having lost the ring that has forced this issue of the ring's value. Clearly, if the ring still were available, the Court simply would be directing defendant to forthwith return same to plaintiff, in accordance with Civil Rights Law section 80-b. Moreover, defendant rightly should not obtain any advantage over plaintiff owing, at the very least, to her careless actions in losing the ring.

The Court rejects defendant's argument that plaintiff otherwise has failed to sufficiently have established the ring's value. Defendant has not submitted any evidence directly challenging the receipt which evidences the cost of the ring as having been $8,500.00. Given defendant's claim that the ring is lost, defendant obviously cannot obtain an actual appraisal thereof. Defendant, were she so inclined, could have done what she argues plaintiff should have done, to wit, have obtained an appraisal based upon the ring's undisputed description as set forth in the receipt; she however did not. The Court thus is satisfied that plaintiff has sustained damages in the sum of $8,500.00.

Moreover, the Court rejects defendant's argument that summary judgment must be denied as premature. As heretofore noted, defendant has failed to raise any issue of fact with respect to plaintiff's prima facie demonstration of his entitlement to judgment, and she has offered no evidentiary basis suggesting that additional discovery may lead to relevant evidence on the issues [*4]of plaintiff's entitlement to the return of the ring or its value. Just as defendant argues herein that plaintiff could have obtained an evaluation of the ring based upon the undisputed description of the ring, defendant too could have undertaken same. She did not, however, and thus defendant wholly has failed to raise any issue as to the ring's value. Defendant's "mere hope" that relevant evidence may be uncovered during discovery is an insufficient basis upon which to deny plaintiff's motion, particularly since there has been no showing that there exist facts exclusively within plaintiff's knowledge which may relieve defendant of liability herein. See Cortes v. Whelan, _ AD3d _, 2011 WL 1446955 (2nd Dept. 2011); Theresa Striano Revocable Trust v. Hoffman, 71 AD3d 993 (2nd Dept. 2010); Davila v. New York City Transit Authority, 66 AD3d 952 (2nd Dept. 2009); Lopez v. W.S. Distribution, Inc., 34 AD3d 759 (2nd Dept. 2006).

Accordingly, plaintiff's motion is granted in all respects. The Clerk is directed to enter judgment in plaintiff's favor as against defendant in the sum of $8,500.00, together with interest from June 18, 2010, plus costs and disbursements.

Dated: May 5, 2011

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C.