This Court presided over a bench trial of a replevin action brought by the Plaintiff pursuant to New York Civil Rights Law § 80-b to recover from the defendant, a 2.97 ct. diamond engagement ring, valued at $53,000.00 or, in the alternative, the fair market value of it. The Plaintiff contends the ring was given to the Defendant solely in contemplation of marriage. The Defendant concedes that the ring was initially given to her in contemplation of marriage but contends its status changed upon the Plaintiff ending the engagement and then subsequently re-gifting it to her an as irrevocable inter vivos gift.

The credible testimony at the trial revealed that the Plaintiff proposed to the Defendant in April, 2011 after a brief courtship while they were vacationing together in Florida. He presented her with the ring and she accepted his proposal. The wedding date was set for September 15, 2012. Thereafter, the parties cohabited in the Plaintiff's home and for the next year, the Plaintiff paid for the Defendant's automobile and health insurance. In June, 2011, the Plaintiff took out a $53,000 insurance policy on the ring. In June, 2012, the Plaintiff asked the Defendant to enter into a pre-nuptial agreement on the advice of counsel as his assets were substantial relative to the [*2]Defendant who owned her own business. She initially refused, but later agreed to do so. The Plaintiff also allowed the insurance policy on the ring to expire in June, 2012.

From July 1, 2012 and thereafter, the only communication between the Plaintiff and the Defendant was in the form of text messages on three (3) separate dates. On July 1, 2012, the Plaintiff sent a text message to the Defendant ending their engagement. After the Defendant expressed her incredulity in a reply text message that the Plaintiff would end their engagement in a text message, the Plaintiff agreed in a reply text message to reimburse the Defendant for wedding related expenses she and her family incurred. He also wrote her instructions relative to moving out of his home. In particular, he wrote she got a $50,000 parting ring, enough for a down payment on a house. The Defendant accepted the parting ring and never relinquished possession.

The Plaintiff sent another text message to the Defendant on July 20, 2012 and expressed his anger over her taking what he referred to as personal shots at him and conspiring with both her and his family. He referred to their relationship as a boyfriend and girlfriend break-up and not the break-up of a 20 year marriage. In particular, he warned her that if she kept it up, he would take back the ring as well.

On July 31, 2012, the Plaintiff sent another text message to the Defendant to settle their personal property issues. This time he asked for the ring back because of debts and penalties he incurred in connection with withdrawals from his retirement account to reimburse the Defendant for wedding expenses. The Defendant, in a reply text message, reminded him he told her she could keep the ring. His reply text message was that he had changed his mind and felt she did not deserve the ring and advised her the law in New York State requires her to return it. He further wrote she was not the person he thought she was but was all about money. The Defendant moved out of the Plaintiff's residence prior to receiving the last text message.

Prior to 1965, the law in New York State, referred to as the so called heart balm statute, prohibited a former fiancee from suing to recover property given in contemplation of marriage. This law was adopted primarily to prevent acrimonious lovers scorned from suing each other based on alleged alienation of affections, criminal conversation, seduction and breach of contract to marry. The lawsuits were subject to grave abuses and caused financial damage and emotional injury to many persons who were innocent of any wrong doing and were merely the victims of circumstance, Brandes, Joel S. NY Law Journal October 27, 1998 p. 1, col. 3 vol. 220. New York Civil Rights Law § 80-b became law in 1965 permitting erstwhile fiancees to recover chattel given in contemplation of marriage regardless of fault if no marriage occurs. The statute also allows for the recovery of real property and permits courts to award a lien to defendants for money expended in connection with the chattels or real property. There is a strong presumption that any gifts made during the engagement period are given solely in contemplation of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it, Vasinkevich v. Elm Drugs, 208 AD2d 522 (2nd Dept. 1994) and Friedman v. Geller, 82 Misc 2d 291 (Civil Court NYC, Kings County 1975).

Most of the reported decisions on this issue in New York and nationwide recognize the unique essence and purpose of an engagement ring as being given in contemplation of marriage, Tomko, Elaine, Rights in Respect of Engagement and Courtship Presents When marriage Does Not Ensue, 44 A.L.R.5th 1 (1996) and Glassman, Adam, I Do! Or Do I?, 12 Buff. Women's L.J. [*3]47 (2003). Therefore, fairness requires its return to the donor when no marriage occurs regardless of who is responsible for such failure, Gaden v. Gaden, 29 NY2d 80 (1971), Paulicic v. Vogtsberger, 390 PA 502, 136 A2d 127 (PA Sup. Ct. 1957, but, see, Lewis v. Permut, 66 Misc 2d 127 (Civil Court NYC, Queens County 1971), Addarich v. Ford, 35 Misc 3d 1231(A) (Sup. Ct. NYC, 2012) and Maiorana v. Rojas, 3 Misc 3d 1107 (Civil Court NYC, Kings County 2004). One common exception is where one of the parties is already married thus defeating the contemplation of a legal marriage since bigamy is illegal in New York and enforcement of § 80-b would be void as against public policy under those circumstances, Lowe v. Quinn, 27 NY2d 397 (1971) and Leemon v. Wicke, 216 AD2d 272 (2nd Dept. 1995). The result holds true even where the donee is already married, Witkowski v. Blaskiewicz, 162 Misc 2d 66 (Civil Court NYC, Queens County 1994). However, most of the reported decisions in New York reflect adherence to the legislative intent of § 80-b to restore the parties to their pre-engagement status by returning the engagement ring to its donor. This is true unless the once conditional gift is transformed into an ordinary gift, which is by definition irrevocable, that is, once given vests immediately and irrevocably in the donee, and the donor's later acts cannot revoke or retract it, 62 NY Jur § 54 (NY Jur 2nd Ed. 2014). To make a valid inter vivos gift, there must exist the intent on the part of the donor to make a present transfer delivery of the gift, either actual or constructive to the donee, and acceptance by the donee, Gruen v. Gruen, 68 NY2d 48 (1986), see, 62 NY Jur § 31 and Juliano v. Juliano, NYLJ p. 21, col. 3 (Sup. Ct. Kings Cty. 2014).

In order to rebut the strong presumption that the ring was given solely in contemplation of marriage, the defendant must establish all the enumerated elements by clear and convincing evidence. That is, she must satisfy this Court that the totality of the evidence makes it highly probable that what she claims is actually what happened, NY PJI vol. 1A 1:64. The chronology of events is significant in the fact specific analysis of the unique facts and circumstances adduced at trial. The financial resources of the Plaintiff surpass those of the Defendant and the pre-nuptial agreement proposed by him was drafted after consulting his legal counsel. He had insured the ring for $53,000 in June, 2011 but let the policy lapse in June, 2012, evincing his donative intent, DeFina v. Scott, 195 Misc 2d 75 (Sup. Ct. NY Cty. 2003). The Plaintiff ended their engagement in the July 1, 2012 text message and wrote that he was giving the Defendant a $50,000 parting ring along with agreeing to reimburse her and her family for wedding related expenses they incurred. The statement you get a $50,000 parting ring itself, made after the engagement was terminated again evinces the Plaintiff's donative intent. Delivery was made if not actually, then constructively as the Defendant already had possession of the ring and no demand for its return had been made at that time. Acceptance by the Defendant was also established by her retention of the gift and the presumption that a thing of value to the donee is deemed accepted by her, Gruen v. Gruen, supra.

The next text message sent by the Plaintiff on July 20, 2012 is consistent with the previous text message in his acknowledgment that the ring had been re-gifted. He wrote that this is a boyfriend and girlfriend break-up and not the break-up of a 20 year marriage. In particular, he wrote that if the Defendant does not stop taking personal shots at him, he will take the ring back, again evincing his donative intent.

The final text message sent by the Plaintiff on July 31, 2012 is also telling on the issue of his donative intent. For the first time he demands the ring's return, again evincing his previous [*4]donative intent, to help defray costs incurred by him for paying back the Defendant for wedding related expenses. He wrote he changed his mind, again evincing his previous donative intent, and she did not deserve the ring before opining she had to, by law, return the ring to him. The Plaintiff's conduct and communications to the Defendant in the text messages is clearly consistent with a donative intent apart from and outside the marriage realm. His changing his mind is giver's remorse rather than indignation based on his enforcement of his rights under § 80-b. Many gifts are given for reasons that sour with the passage of time. Unfortunately, gift law does not allow a donor to recover or revoke an inter vivos gift simply because his or her reasons for giving it have soured, Hess v. Johnston, 163 P3d 747 (UT App. 2007). Once a gift is given, it is irrevocable, that is, when an executed gift has been made an action to recover the item given ordinarily does not lie, Brandes v. Agnew, 275 AD 843 (2nd Dept. 1949) and 62 NY Jur § 54, supra. Finally, the Plaintiff's performance of every other action referred to in the text messages is perhaps the most compelling indication of his donative intent. In fact, it was at trial, after months of reflection, that he first referred to what he wrote in the text messages regarding the ring as sarcasm.

The rule of delivery is not inflexible, but is intended only to prevent fraudulent or mistaken claims, Rubenstein v. Rosenthal, 140 AD2d 156 (1st Dept. 1988). The Plaintiff alleges no fraud or mistake here, Cohen v. Bayside Federal Savings and Loan, 62 Misc 2d 738 (Sup. Ct. Queens Cty., 1970). The Plaintiff at trial was not inconsistent with the text messages he sent, with the notable exception that he characterized his comment relative to the $50,000 parting ring as sarcasm akin to game show hosts assuaging losing contestants with the promise of a parting gift. Parting gifts on game shows usually pale in comparison to the grand prize sought in such contests, unlike here where the ring is at the heart of this lawsuit.

The Defendant has sustained her heavy burden by clear and convincing evidence. The text messages initiated by the Plaintiff have persuaded this Court that it is highly probable that a valid gift was given to her after the engagement was terminated. Therefore, under the totality of the circumstances, this Court grants judgment to the Defendant and against the Plaintiff.

Accordingly, the Defendant is awarded the 2.97 ct. diamond engagement ring or, in the alternative, the fair market value of it, without costs to either party.

This constitutes the Decision and Order of this Court granting Judgment to the Defendant and against the Plaintiff.

DATED:Buffalo, New York

March 31, 2014

Russell P. Buscaglia

Supreme Court Justice