Opinion
INDEX NO. 158589/12
01-27-2014
RALPH CHARELL, Plaintiff, v. F. AVRIL BRENIG and JULIAN LOWENFELD, ESQ, Defendants.
, J.:
Defendants F. Avril Brenig and Julian Lowehfeld, Esq. move for an order pursuant to CPLR 3211(a)(5) and (7 ), dismissing the complaint on the grounds of statute of frauds and failure to state a cause of action. Defendants also seek an award of costs and attorney's fees as sanctions for frivolous litigation. Plaintiff Ralph Charell opposes the motion.
Defendants' counsel has advised the court that his clients have waived the service of process issues.
In March 2012, plaintiff Charell and defendant Brenig met through the internet dating site Match.com and began a romantic relationship. At the time, plaintiff was 82 years old, and defendant, a retired widow, was 73 years old. In September 2012, plaintiff moved into Brenig's Mitchell Lama apartment at 150 West 96th Street. Plaintiff alleges that in mid-October 2012, Brenig told him she "changed her mine" and "no longer wanted to cohabitate with him." On October 22, he voluntarily left the apartment after Brenig summoned the police.
Defendants' counsel describes plaintiff Charell as "sophisticated businessman," who is a Columbia Law School graduate, a "retired television program executive and securities firm manager," who is in the "Guinness Book of World Record as 'The World's Most Successful Complainer,' and is renowned as the author of such books as How to Make Things Go Your Way, and How to Get the Upper Hand: Winning the Battles of Everyday Life, and How I Turn Ordinary Complaints Into Thousands of Dollars: The Diary of a Tough Customer."
The police Domestic Incident Report lists the "offenses" as "verbal dispute," which is described as follows: "At T/P/O c/v states she has been asking offender to leave her apt for one week. Offender has lived in the apt for under 30 days. C/V and offender ended intimate relationship twenty days ago. No guns in apt. Offender voluntarily left apt."
In November 2012, plaintiff commenced this action, asserting first and second causes of action against Brenig for breach of contract and promissory estoppel, third and fourth causes of action against Brenig and Lowenfeld for fraud and intentional infliction of emotional distress, and fifth and sixth causes of action against Lowenfeld for legal malpractice and professional negligence. The complaint alleges Brenig "induced" plaintiff to surrender his rent stabilized apartment at 311 East 72nd Street, and he relied upon her representations that if he moved into her apartment, she would "provide him with a room in her apartment for the rest of his life," he would "become a 'cooperator' on the proprietary lease, and participate in the profits if the building was converted," he would be "added" to her will, and they "would share equally in living expenses." Plaintiff alleges Brenig told him that if the relationship did not work out, he could "reside in the middle bedroom for the rest of his life," and assured him that "under no circumstances would he be asked to vacate the apartment." He alleges his rent stabilized apartment had a rental value of less than 40% of market value, resulting in damages in excess of $150,000, and that he abandoned "much of his personal property, including furniture, books, paintings, and collectibles" worth more than $25,000.
Plaintiff alleges that on October 15, 2012, Brenig invited defendant Lowenfeld, an attorney, to the apartment, who introduced himself "as a mediator tasked with crafting a mutually acceptable separation between plaintiff and Brenig." The complaint alleges Lowenfeld specially stated he was not Brenig's attorrney, "but rather a mediator acting on behalf of both parties." Plaintiff alleges Lowenfeld conducted two mediation sessions on October 15 and 16, during which Lowenfeld "misrepresented plaintiff's legal rights, stating definitively that plaintiff had no right to reside" in Brenig's apartment and that he should begin looking for a new apartment immediately. The complaint alleges that on October 22, Lowenfeld told plaintiff that he was not a neutral mediator, but Brenig's attorney, and that he had contacted the police and plaintiff had two choices, to leave the apartment immediately, orbe escorted out by the police. Lowenfeld then called the police, who escorted plaintiff out of the apartment.
Plaintiff alleges he packed just one suitcase,'and Lowenfeld told him his remaining property would be moved to a storage unit the next day. Plaintiff alleges he checked into a hotel, "began to experience severe chest palpitations," and believing he was having a heart attack, he went to the emergency room where he was diagnosed with "tachycardia, palpitations and hypertension." He alleges that prior to that time, he had never suffered any of those ailments. He also alleges he was caused to suffer severe anxiety and extreme emotional distress by the "daunting task of finding an apartment he could afford and figuring out a way to maintain even a modest standard of living," and he is now living in an "inferior apartment in Astoria, Queens." He alleges that "by reason of the mistreatment and elder abuse described above, he was forced to spend thousands of dollars to replace several personal items he had discarded," and is "also living under continuous, severe stress that has adversely affected his health."
In lieu of answering the complaint, defendants are now moving pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint as barred by the statute of frauds and for failure to state a cause of action.
The court declines defendants' request to treat their CPLR 3211 pre-answer motion to dismiss as a summary judgment motion pursuant to CPLR 3212.
On a CPLR 3211 motion to dismiss addressed to the sufficiency of the pleadings, the complaint must be liberally construed, and the Court must accept all allegations as true and accord them the benefit of every favorable inference to determine whether they come within the ambit of any cognizable legal theory. See Nonnon v. City of New York, 9 NY3d 825, 827 (2007) (quoting Leon v. Martinez, 84 NY2d 83, 87-88 [1994]); Cron v. Hargro Fabrics, Inc, 91 NY2d 362, 366 (1998); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wise Metals Group, LLC, 19 AD3d 273 (1st Dept 2005); DeMicco Bros, Inc. v. Consolidated Edison Co, 8 AD3d 99 (1st Dept 2004). In assessing a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), "a court may freely consider affidavits submitted by plaintiff to remedy any defects in the complaint," and the "criterion is whether the proponent of the pleading has a cause of action, not whether [it] has stated one." Leon v. Martinez, supra at 88 (quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]); accord Pollard v. WB/Stellar IP Owner. LLC, 96 AD3d 533 (1st Dept 2012); Amaro v. Gani Realty Corp, 60 AD3d 491, 492 (1st Dept 2009).
Construing the complaint and plaintiff's supplemental submissions liberally, and accepting all the allegations as true and according them the benefit of every favorable inference, the court concludes that plaintiff fails to assert a legally cognizable cause of action.
The first cause of action for breach of contract is barred by the statute of frauds. Any alleged oral agreement that Brenig would give him a room in her apartment for the "rest of his life," violates the statute of frauds, as its terms cannot be fully performed before the end of plaintiff's lifetime. See GOL §5-701(a)(l); Massey v. Byrne, 112 AD3d 532 (1st Dept 2013); Melwani v. Jain, 281 AD2d 276 (1st Dept 2001); Williams v. Lynch, 245 AD2d 715 (3rd Dept 1997), app dism 71 NY2d 957 (1998); Tompkins v. Jackson, 22 Misc3d 1128(A) (Sup Ct, NY Co 2009); Edelman v. Hatami, 19 Misc3d 1105(A) (Surrogate's Ct, West Co 2008). Any alleged oral agreement that Brenig would "add" plaintiff to her will is likewise barred by the statute of frauds. See EPTL § 13-2.1(a)(2); GOL §5-701 (a)(1); Brown v. Brown, 12 AD3d 176 (1st Dept 2004). Moreover, an agreement to make or modify a will generally is enforceable only after the death of the promisor. See id.
Contrary to plaintiff's assertion, the breach of contract claim cannot be salvaged by his assertion of partial performance. In Gural v. Drasner, ___ AD3d ___, 977 NYS2d 218 (1st Dept 2013), the Appellate Division First Department recently clarified that the partial performance exception to statute of frauds applies only to GOL § 5-703, which is limited to contracts for the conveyance of an interest in real estate. In other words, "the law simply does not provide or permit a part performance exception for oral contracts other than those to which General Obligations Law § 5-703 applies." Id. Since the instant cases does not involve a real estate transaction, partial performance cannot be used to take the oral contract out of the operation of the statute of frauds.
Plaintiff additionally asserts that writings "likely exist, signed by Brenig, which satisfy the statute of frauds." Conceding that Brenig did not execute a formal document memorializing their agreement, plaintiff argues he and Brenig exchanged hundreds of emails, "one of which arguably satisfies the statute of frauds." Plaintiff cites one email from Brenig to plaintiff, dated September 25, 2012, stating as follows: "I believe the movers will be helpful and at least lift the burden" and that "I have written another letter to Marge re. official notification to the superintendent and staff of your being a resident here and regarding the mail carrier as well." Plaintiff also argues that plaintiff's reference to "another letter to Marge" renders dismissal on statute of frauds grounds premature, as such letter is not in his possession and contains "written substantiation of their agreement."
While an exchange of emails may constitute an enforceable agreement, the writings must designate with reasonable certainty, the parties involved, the subject matter of the agreement and all of the essential or material terms of the agreement. See Kasowitz , Benson, Torres & Friedman v. Reade, 98 AD3d 403 (1st Dept 2012), aff d 20 NY3d 1082 (2013); MP Innovations, Inc v. Atlantic Horizon International, Inc, 72 AD3d 571 (1st Dept 2010); DeRosis v. Kaufman, 219 AD2d 376 (1st Dept 1996). The email plaintiff points to as satisfying the statute of frauds, however, does little more than confirm that plaintiff and Brenig had a romantic relationship, and that Brenig had agreed that plaintiff could move into her apartment and take up residency with her. The email is silent not only as to the duration of such arrangement, but also as to all other essential and material terms of the alleged agreement. The email neither shows nor suggests that plaintiff would become a permanent resident of Brenig's apartment for the rest of his life.
Plaintiff's assertion that Brenig has exclusive possession of a writing to a third-party, "Marge," which is sufficient to satisfy the statute of frauds, is pure speculation. Moreover, while the court may ordinarily consider a plaintiff's affidavit on a dismissal motion, where as here, the statute of frauds is the basis for dismissal, parol evidence, even in affidavit form, is immaterial to the threshold issue of whether a document exists that is sufficient on its face to satisfy the statute of frauds. See Bazak International Corp v. Mast Industries, Inc, 73 NY2d 113 (1989); DeRosis v. Kaufman, supra. As the Court of Appeals explains, "[c]onsideration of parol evidence in assessing the adequacy of a writing for Statute of Frauds purposes would otherwise undermine the very reason for a Statute of Frauds in the first instance." Bazak International Corp v. Mast Industries, Inc, supra at 119.
Thus, since the alleged oral agreement for plaintiff to reside in Brenig's apartment for the rest of his life is unenforceable, as violative of the Statue of Frauds, the first cause of action for breach of contract must be dismissed.
The balance of the complaint is dismissed for failure to state a cause of action. Plaintiff asserts a second cause of action for promissory estoppel. The essential elements of promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance, and an injury sustained in reliance on that promise. See Skillgames LLC .v Brody, 1 AD3d 247 (1st Dept 2003); Steele v. Delverde S.R.L., 242 AD2d 414 (1st Dept 1997). Where, as here, the doctrine of promissory estoppel is invoked to circumvent the statute of frauds, plaintiff must allege the infliction of unconscionable injury as a result of any reliance placed on defendant's alleged promises. See American Bartenders School v. 105 Madison Co, 59 NY2d 716 (1983); Spier v. Southgate Owners Corp, 39 AD3d 277 (1st Dept 2007); Zaveri v. Rosy Blue Inc, 4 AD3d 146 (1st Dept 2004); River Glen Assocs Ltd v. Merrill Lynch Credit Corp, 295 AD2d 274 (1st Dept 2002); Melwani v. Jain, 281 AD2d 276 (1st Dept 2001); Steele v. Delverde, supra. One court has defined unconscionable injury as an "injury beyond that which flows naturally (expectation damages) from the non-performance of the unenforceable agreement or promise." Greene v. Ratner, 2008 WL 2937183 (Sup Ct, NY Co 2008) (citing Merex A.G. v. Fairchild Weston Systems, Inc, 29 F3d 821 [2nd Cir 1994], cert denied 513 US 1084 [1995]).
Here, the injury plaintiff alleges does not rise to a level of unconscionability required to avoid the statute of frauds. While plaintiff alleges he gave up his rent stabilized apartment and personal properly because Brenig promised he could reside in her apartment for the rest of his life, plaintiff's actions are equally consistent with the romantic nature of his relationship with Brenig, standing apart from the alleged oral agreement.
Plaintiff asserts a third cause of action for fraud against Brenig and Lowenfeld. Contrary to defendants' contention, the fraud claim is not duplicative of the breach of contract claim, as it is not based the breach of Brenig's oral promise that plaintiff could reside in her apartment for the rest of his life. Rather, the complaint alleges defendants knowingly made a material misrepresentation when they stated that Lowenfeld "was acting as a neutral mediator," such statement was "made in an attempt to induce plaintiff's reliance so that he wold not seek legal counsel after learning that defendant Brenig wanted to terminate their living arrangement," plaintiff's reliance was justifiable, and by reason of the misrepresentation, plaintiff suffered damages in excess of $150,000.
The elements of fraud are a material misrepresentation of an existing fact, made with knowledge of its falsity and an intent to deceive, justifiable reliance, and damages resulting from such reliance. See Global Minerals & Metals Corp v. Holme, 35 AD3d 93 (1st Dept 2006), lv app den 8 NY3d 804 (2007); Pope v. Saget, 29 AD3d 437, 441 (1st Dept 2006), lv app den 8 NY3d 803 (2007). Each element of fraud must be supported by factual allegations containing the details constituting the wrong, so as to satisfy the heightened pleading requirements of CPLR 3016(b). See House of Spices (India), Inc v. SMJ Services, Inc, 103 AD3d 848 (2nd Dept 2013).
Plaintiff's allegations are not sufficient to support a cause of action for fraud. Absent from plaintiff's allegations are facts sufficient to establish that the alleged misrepresentation induced him to act or refrain from acting with respect to any duty or obligation owed to him by Lowenfeld or Brenig. Moreover, even if Lowenfeld misrepresented that he was a "neutral mediator," plaintiff still could have retained his own attorney. In any event, plaintiff's reliance on Lowenfeld's alleged misrepresentation in not seeking the advice of his own attorney could not have resulted in any damages, since, as determined above, plaintiff had no enforceable legal right to remain in Brenig's apartment.
Plaintiff's fourth cause of action for intentional infliction of emotional distress does not rise to the level of atrocity or outrageousness necessary to sustain a claim of this nature. See Murphy v. American Home Products Corp, 58 NY2d 293 (1983). As the Court of Appeals explains, to "survive a motion to dismiss," plaintiff must allege conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id at 303. The facts as alleged by plaintiff regarding his purported "eviction" from plaintiff's apartment fall far short of this standard.
Plaintiff's fifth cause of action for legal malpractice and the sixth cause of action for professional negligence are insufficient as a matter of law. A claim for legal malpractice requires an attorney-client relationship. See Learning Annex, L.P. v. Blank Rome LLP, 106 AD3d 663 (1st Dept 2013), lv app den ___ NY3d ___, 2014 WL 113772 (2014). "It is well established that, with respect to attorney malpractice, absent fraud, collusion, malicious action, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence." Rovello v. Klein, 304 AD2d 638 (2nd Dept), lv app den 100 NY2d 509 (2003); accord Nelson v. Roth, 69 AD3d 912 (2nd Dept 2010). Plaintiff does not dispute that he did not have an attorney-client relationship with defendant Lowenfeld, and he fails to allege special circumstances that would otherwise warrant the imposition of liability on Lowenfeld.
In accordance with the foregoing, the complaint is dismissed in its entirety. Defendants' request for sanctions including costs and attorney's fees for frivolous litigation is denied.
Accordingly, it is
ORDERED that defendants' motion to dismiss the complaint is granted, and the complaint is dismissed in its entirety, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the portion of defendants' motion for the imposition of sanctions including costs and attorney's fees for frivolous litigation is denied.
__________________________
HON. JOAN A. MADDEN
J.S.C.