Opinion
94988KCV2003.
Decided June 3, 2004.
John Maiorana, plaintiff, pro-se.
Giovana Rojas, defendant, pro-se.
Plaintiff brings this action to recover $5, 490.00 from the defendant. $5,370 for defendant's failure to return property belonging to plaintiff, specifically an engagement ring, money spent on a couch and television set, first month rent and security deposit, and money spent for tolls billed to his EZ pass account for coming to court to file this claim. Plaintiff he also asking for $120 for loss of time from work. Defendant counterclaims to recover $8, 904.36 for car note and car insurance payments made for a 2000 Nissan Xterra in plaintiff's possession. This matter was tried by the Court on May 12, 2004. At the trial, plaintiff testified on his behalf. Defendant presented Maria Pulecio, her mother, as a witness and testified on her own behalf.
FINDINGS OF FACT
Plaintiff testified that he proposed to the defendant on December 24, 2001 and she accepted. Soon after, plaintiff and defendant signed a lease to live together at 1765 Kimball Street, Brooklyn, New York 11234. A deposit of $1,900.00 for first month rent and security was required at the time the parties signed the lease. While living together the parties agreed that the defendant would pay the car note and car insurance while the plaintiff would pay the rent, the food, and the gas and electric bills. Additionally, the parties bought a couch from Seaman's Furniture and a television set from PC Richards together. On or about September or October of 2002, the plaintiff wanted to move out. The parties separated but agreed to continue to work on the problems in their relationship. On or about January 2003, the plaintiff terminated the relationship because "he did not love the defendant anymore and did not want to cheat on her." Plaintiff has submitted as evidence a receipt for an engagement ring in the amount of $2,862.00, a $59.50 bill for an E-Z pass, an invoice from Seaman's furniture showing the balance of $1500 was paid off, a bill from PC Richards for $505.31 attached to a cancelled check for $303.19 and a copy of an agreement between the parties and signed by the plaintiff.
Defendant's testimony corroborated much of plaintiff's testimony. The testimony differed only on two points. According to the defendant, the plaintiff proposed and she accepted on December 29, the date of her birthday. Maria Pulecio, the witness, testified that plaintiff called her a few days before Christmas; asked for her daughter's hand in marriage; and told her the ring would be a gift for plaintiff's birthday, for Christmas, and in celebration of their engagement. Additionally the defendant testified that on June 23, 2003, plaintiff came to her place of residence and picked up the couch and the television set and that she asked him at that point if there was anything else he wanted and he replied, "aside from the air conditioner, no." At this point defendant produced a document signed by the plaintiff where he acknowledges receipt of the couch and television set and states that except for the air conditioner, there would be "no future contact between the parties or any requests for other belongings." Plaintiff acknowledged signing the document.
The document reads: "This letter is to notify that all the following items were relinquished in good condition on June 23, 2003 to John F. Maiorana: Black Leather Couch, RCA T.V. As agreed, the items were left in front of the curb on 1765 Kimball St., Brooklyn, NY, Giovana Rojas' prior residence. After this point there should be no future contact between both parties, or any request for other belongings." Plaintiff wrote in black ink EXT. For A/C and signed it.
LAW
I The Engagement Ring
Courts have held that gifts given in the contemplation of marriage are deemed to be conditional on the subsequent marriage of the parties. (See Harris v. Davis, 139 Ill. App. 3d 1046, 94 Ill. Dec. 327, 487 N.E.2d 1204 (5th Dist. 1986). A gift given in the contemplation of marriage is not absolute but made on the implied condition that the person receiving it will return it if he/she breaks the engagement without legal justification. (See Mack v. White, 97 Cal. App. 2d 497, 218 P.2d 76 (2d Dist. 1950); Gill v. Shively, 320 So. 2d 415 (Fla.Dist.Ct.App. 4th Dist. 1975) (distinguished on other grounds by, Greenberg v. Greenberg, 698 So. 2d 938 (Fla.Dist.Ct.App. 4th Dist. 1997)); Beberman v. Segal, 6 N.J. Super 472, 69 AD2d 587 (Law. Div. 1949); Rhodes v. Sherrod, 389 S.W.2d 121 (Tex.Civ.App. Eastland 1965). However, in the absence of an agreement to the contrary, if the parties mutually agree to terminate the engagement, gifts given in contemplation of the marriage must usually be returned by each party to the other. (See, Vann v. Vehrs, 260 Ill. App.3d 648, 198 Ill. Dec. 640, 633 N.E.2d 102 (2d Dist. 1994); Daigle v. Fourent, 141 So. 2d 406 (La.Ct.App. 4th Cir. 1962); Beberman v. Segal, 6 NJ Super 472, 69 A.D.2d 587 (Law. Div. 1949); Lewis v. Permut, 66 Misc.2d 127, 320 N.Y.S.2d 408 (City Civ Ct. 1971).
Some courts have utilized the fault method to determine whether the donor of the engagement gifts is entitled to the return of said gifts. For example, when the donee of the gifts breaks the engagement or is at fault in refusing to enter into the contemplated marriage through no fault of the donor, a cause of action to recover the gifts given solely in contemplation of marriage can be maintained. (See Hahn v. US, 535 F. Supp. 132 (D.S.D. 1982); In re Marriage of Heinzman, 198 Colo. 36, 596 P2d 61 (1979); Piccininni v. Hajus, 180 Conn. 369, 429 A.2d 886(1980); Matter of Estate of Lowe, 146 Mich. App. 325 N.W.2d 485 (1985); Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127(1957); Stienback v. Halsey, 115 Cal. App.2d 213, 251 P.2d 1008 (4th Dist. 1953); Glachman v. Perlen, 159 A.D.2d 553, 552 N.Y.S.2d 418 (2nd Dept. 1990). On the contrary, the recovery of a gift made in contemplation of marriage may be precluded where the donor terminates the engagement without justification or is otherwise at fault. (See White v. Finch, 3 Conn. Cir. Ct. 138, 209 A.2d 199 (1964); Schultz v. Duitz, 253 Ky. 135, 69 S.W.2d 27, 92 A.L.R. 600 (1934); Wilson v. Dabo, 10 Ohio App. 3d 169, 461 N.E.2d 8 (10th Dist. Franklin County 1983); Leemon v. Wicke, 216 AD2d 272, 627 NYS2d 761 (2d Dept. 1995)).
Some courts have held that gifts made in the contemplation of marriage may be recovered by the donor if the marriage does not occur regardless of which party is at fault for the termination of the engagement. (See Fiero v. Hoel, 465 N.W.2d 669 (Iowa Ct.App. 1990); Patterson v. Blanton, 109 Ohio App. 3d 349, 672 N.E.2d 208 (10th Dist. Franklin County 1996)). In these instances, fault and/or who broke the engagement is irrelevant. (See Gagliardo v. Clemente, 180 A.D.2d 551, 580 N.Y.S.2d 278 (1st Dept. 1992), leave to appeal dismissed, 79 N.Y.2d 1040, 584 N.Y.S.2d 449, 594 N.E.2d 943 (1992)). The only issues of concern in those matters are whether the gift was conditional and whether the condition was not fulfilled. (See; Vigil v. Haber, 119 N.M. 9, 888 P.2d 455, 44 A.L.R.5th 779(1994); Lindh v. Surman, 702 A.2d 560 (Pa.Super.Ct. 1997), reargument denied, (Dec. 12, 1997) and appeal granted (Pa. June 10, 1998).
In the case at bar, the un-rebutted testimony is that plaintiff no longer wanted to be engaged to the defendant; was the one who proposed to separate and move out, and eventually wanted to end his relationship to defendant because he "did not love her anymore." In fact, the defendant testified that plaintiff had been with another woman four days after he presented her the ring and against her better judgment, she "begged him to stay" because she "did not want to be without him."
Under the fault method, plaintiff terminated the engagement without justification and as such, should not recover the ring. (See White v. Finch; Schultz v. Duitz; Wilson v. Dabo; and Leemon v. Wicke, supra). However, if the Court does not consider fault in making its determination, it must then decide if the gift was conditional. (See Vigil v. Haber; 44 A.L.R.5th 779(1994); and Lindh v. Surman, supra). Both the defendant and her witness testified that the ring was given to the defendant on her birthday as a birthday and Christmas gift as well as in celebration of their engagement. She states that since the ring was not given to her in the contemplation of marriage, it is now her property and she should not have to return it. She asks the Court to refer to the document she submitted as evidence because it supports her contention that the gift of the ring was not conditioned upon an engagement since the plaintiff never asked for it back and he did not include it in the document he signed. This testimony is unrebutted and establishes that the ring was not conditional but absolute. As such, the plaintiff would not be entitled to the ring.
The plaintiff submitted a copy of said document as well.
In fact, plaintiff testified that if defendant had asked for the ring at that time (June 23, 2003), she would have probably given it back to him in order to get closure.
The Court gave the plaintiff an opportunity to cross-examine the witness and he just apologized to her about any injury he may have caused her.
Moreover, the written document produced by the defendant and acknowledged by the plaintiff bars him from recovering the ring because it is an agreement, reduced to writing; signed and acknowledged by plaintiff; and binding the parties to its content. In order for an agreement to sufficiently indicate that a contract has been made, it has to be in writing; signed by the party against whom enforcement is sought and "must completely evidence the contract which the parties made" (See General Obligation Law § 5-701; Poel v. Brunswick-Balke-Collender Co., 216 NY 310, 314 (1915)). The agreement submitted to this court was in writing, signed by the plaintiff, and clearly states that, aside from the air conditioner, plaintiff would "not request any other belonging." As such this agreement satisfies the Statute of Fraud; is a valid contract, enforceable in a Court of law and it bars the plaintiff from recovery of the ring or any other property. II The Couch and the Television Set
See Footnote # 2 for contents of said agreement.
Except for the air conditioner which was not part of his claim.
The plaintiff and the defendant both testified that the plaintiff is now in possession of the couch and the television set which he retrieved from defendant's residence on June 23, 2003. Plaintiff argues that he is, at least, entitled to the interest that accrued on the couch for defendant's failure to make payments as agreed between the parties. The Court finds that plaintiff failed to meet his burden of proving that such an agreement existed and is barred by the agreement he signed waiving any future request for property or value thereof. (See General Obligation Law § 5-701; Poel v. Brunswick-Balke-Collender Co., supra).
III First Month Rent, Security Deposit, EZ Pass, $120 For Loss Of Time From Work
The Court finds that the plaintiff has failed to meet his burden of entitlement to these items. Moreover, he testified that it was his choice to move out and therefore he broke the lease which would prevent him from collecting the security deposit. Additionally, both parties testified that they lived in the residence for, at least, the first month and therefore utilized their first month's rent barring plaintiff from recovering that. Plaintiff alleged that he is at least entitled to $500 of that money because his grandmother loaned them that money with the intent to get repaid. The Court finds that the plaintiff failed to meet his burden of establishing that the money was a loan. IV Defendant's Counterclaim
Plaintiff attempted to introduce a letter from his grandmother which was not dated or notarized as such the Court did not accept it as evidence.
The Court finds that the defendant has failed to meet her burden in establishing that she is entitled to recover $8, 904.36 for car note and car insurance payments made for a 2000 Nissan Xterra in plaintiff's possession
CONCLUSION
Accordingly, plaintiff's claim is dismissed. The defendant failed to prove her counterclaim and as such, it is dismissed.
This constitutes the decision and judgment order of this Court.