Archives: Miscellaneous Actions and Proceedings

In his August 25, 2015 decision in Zeidman v. Zeidman, Nassau County District Court Judge Scott Fairgrieve awarded $5,000 to 17-year old Jordan Zeidman who had sued his mother, Shirley Zeidman, for refusing to deliver Jordan’s Bar Mitzvah gift from his maternal grandmother that had been entrusted to his mother.

In 1998, Jordan’s parents were divorced. In their separation agreement, the parents stipulated that they would contribute pro rata to Jordan’s college fund. The mother had not made any such contributions and, in October, 2007, Jordan moved from his mother’s home because of their uneasy relationship. Mother and son had been estranged ever since.

Also in October, 2007, Jordan and his family celebrated his Bar Mitzvah at Zachary’s restaurant in Hempstead. Neither Jordan’s mother, nor his grandmother received an invitation to the party. The two “crashed” the party, but were not asked to leave.

Jordan claimed that at the celebration, his grandmother told him that she was going to give him $5,000 for his religious achievement. The grandmother supposedly gave the $5,000 to Jordan’s mother with the understanding that it would be delivered to Jordan. According to Jordan, his grandmother told him “I have $5,000 for you. Just like I gave to your brother and sister. And I’m going to give it to your mom to hold for you.” Jordan testified his mother never delivered the $5,000 to him.

At trial, Jordan submitted into evidence a document given to him by his father, ostensibly showing that his mother had acknowledged and received Jordan’s plaintiff’s $5,000 gift. The document was a bank confirmation statement of deposits that were made into Jordan’s college fund. The top of the document contained a handwritten statement which read, “I owe Jordan $190.00 + $5,000 from Baba” [the nickname by which the family referred to the grandmother].

On cross-examination, the mother testified that she didn’t recall writing the note, but that it could have been her handwriting. She denied receiving a $5,000 gift from her mother for Jordan’s benefit. Jordan testified that he was familiar with his mother’s handwriting because of the amount of time they spent living together, and the number of times he had seen her make numerous other writings.

The grandmother testified that she neither gave a $5,000 gift directly to Jordan, nor did she give the mother $5,000 to hold for Jordan’s benefit. However, the grandmother admitted to giving $5,000 gifts, in either cash or check form, to Jordan’s siblings for their Bar and Bat Mitzvahs.

Judge Fairgrieve found that Jordan had proven by clear and convincing evidence the elements necessary to establish an inter vivos gift:

  1. donative intent to make an irrevocable transfer of ownership;
  2. actual physical or constructive delivery of the property; and
  3. acceptance of the gift by the donee.

The evidence clearly established that Jordan’s grandmother came to his Bar Mitzvah with the intention of giving Jordan a $5,000 gift. The grandmother gave direct testimony attesting to the fact that she went to the plaintiff’s Bar Mitzvah, uninvited, with the intent to give him a gift with “all of her heart.” The grandmother had given $5,000 gifts to Jordan’s older siblings for their Bar and Bat Mitzvahs in the past. The bank document further supported that a gift was made. That evidence, coupled with the fact that Jordan and the grandmother shared a family relationship, convinced Judge Fairgrieve that the grandmother came to the Bar Mitzvah with the intention of giving the plaintiff a $5,000 gift. The evidence also demonstrated an irrevocable transfer of ownership: the mother received delivery of $5,000 as agent for Jordan in a fiduciary capacity.

Further, Jordan established by clear and convincing evidence that he received constructive delivery of the $5,000 gift. Delivery may be made to someone other than the donee to accomplish a gift. That third party represents the donee as agent, and there may be a valid delivery, even in circumstances where the donee does not have knowledge of the gift.

Here, there was valid delivery of the $5,000 gift made to Jordan. The mother was acting as agent for Jordan when she retained the gift. Moreover, the handwriting on the banking confirmation statement proved that the mother received the $5,000 gift as Jordan’s fiduciary-agent.

An agent who exercises dominion or control over the property “of his or her principal beyond the extent of the agent’s authority, with the intent to dispose of it so as to alter its condition or interference with the owner’s dominion is guilty of conversion.” Fundamental to an agent-principal relationship is that an agent owes a duty of loyalty to his or her principal, and is “prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” Thus, Jordan was entitled to recover based upon conversion because the mother failed to pay him the $5,000 to which he was entitled.

Moreover, Jordan was entitled to recover for unjust enrichment. The elements necessary to establish a cause of action for unjust enrichment are:

  1. the other party was enriched;
  2. at that party’s expense; and
  3. that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.

Here, the evidence demonstrated that the mother would be unjustly enriched if permitted to retain the $5,000 gift.

Steven Cohn, P.C., of Carle Place, represented the son. Jeffrey S. Schecter & Associates, P.C., of Garden City, represented the mother.

A non-written agreement for cohabitants to share retirement benefits can be enforceable under a breach of contract claim, but will not support claims to impose a constructive trust, or for unjust enrichment or an accounting. Such was the holding of the Appellate Division, Second Department, in its November 13, 2013 decision in Dee v. Rakower.

In the majority opinion written by Justice Leonard B. Austin, the appellate court relied heavily on the facts as pleaded in the complaint. The parties had lived together in a committed, same-sex relationship for nearly 18 years. Two children were born of this relationship; each party being the biological parent of one child, legally adopted by the other.

After the relationship ended in 2007 (before the passage of New York’s Marriage Equality Act [see, Domestic Relations Law §§ 10-a, 10-b]), Ms. Dee commenced this action seeking to enforce the alleged oral “joint venture/partnership” agreement. Under that agreement, Ms. Dee was to share in assets, including Ms. Rakower’s retirement contributions and earnings, in exchange for Ms. Dee leaving her full-time job to care for the parties’ children.

Before they had children, each party was employed full-time, earning a salary and retirement benefits. The parties pooled their respective salaries to meet their shared expenses. The parties purchased a house as joint tenants with rights of survivorship.

After the parties’ first child was born, the parties agreed, it was alleged, that given the cost of child care, Ms. Dee would eschew her full-time employment and work part-time so that she could be home with the children and perform other non-financial services for the benefit of the family and for the parties’ partnership and/or joint venture while Ms Rakower would continue to work full-time. Ms. Dee alleged that her decision to leave her full-time employment was based upon the parties’ specific agreement that Ms. Dee would be entitled to one half of Ms. Rakower’s retirement contributions and earnings for the period.

Ms. Rakower moved to dismiss Ms. Dee’s complaint. Kings County Supreme Court Justice Yvonne Lewis granted that motion, determining that the facts did not support causes of action for breach of contract, to impose a constructive trust, for unjust enrichment or for an accounting.

Continue Reading Oral Cohabitation Contract Claim Withstands Motion To Dismiss

The plaintiff former husband brought this state-court action action against his first wife seeking damages for her alleged false statements to the Citizenship and Immigration Service. The former husband blamed those statements for the Service’s conclusion that the the couple had not established a life together as husband and wife. The plaintiff also sought a judicial declaration that the requisite relationship had, in fact, existed.

In his August 28, 2013 decision in Kenan v. Campuzano (2013 N.Y. Misc. LEXIS 3929 | 2013 NY Slip Op 32056(U), New York County Supreme Court Justice Arthur F. Engoron dismissed the action.

The plaintiff met his first wife face-to-face in 2006 when he came to New York shortly after finding her on JDate. They married four months later. Two months after that, the wife filed a petition to sponsor her new husband for US citizenship with the US Citizenship and Immigration Services (“USCIS”). The couple divorced a year later. At the same time the wife withdrew her petition to sponsor her husband for US citizenship.

Just 3 or 4 months after that, in January or February 2008, the husband married another woman. The second marriage, too, came to an end within a relatively short period of time. However, before it had ended, the second wife, too, petitioned for her new husband’s US citizenship. That petition was denied in part upon USCIS’s determination that the first marriage was “for the sole purpose of evading immigration laws and obtaining an immigration benefit.”

The now twice-divorced husband brought this action to redress the alleged false statements made by his first wife to the USCIS. he also sought a declaratory judgment that the parties had “established a life together under the meaning of the law.”

The first wife moved to dismiss the complaint. Justice Engoron granted that motion.

Continue Reading State Court Rejects Action to Declare for Immigration Purposes the Bona Fides of Former Marriage

A wife’s right to reside in what has been her marital residence for four years, and whose right to do so stemmed not merely from the home-owner’s  permission, but from a true family relationship, cannot be summarily evicted as a mere licensee.  Such was the holding of Nassau County District Court Judge Eric Bjorneby in his June 20, 2013 decision in Kakwani v. Kakwani.

Ms. Anjili Kakwani (the “petitioner”), her brother (Amit Kakwani [the “husband”]) and their parents moved into a one family residence in Carle Place in 2004. The petitioner’s mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006.

In March, 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani (the “wife”). In September, 2008, the petitioner and Amit traveled to India where the petitioner met her future sister-in-law for the first time. In November, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married.

Amit and Nisha resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit moved out of the master bedroom and into another room in the house.

In September, 2013, the petitioner had respondent served with a 10-Day Notice to Quit.

The petitioner brought this summary proceeding pursuant to RPAPL §713(7) to evict the respondent (the petitioner’s sister-in-law) on the ground that respondent was a licensee whose license to reside at the premises had been revoked. (The husband, Amit, was not named as a respondent in this proceeding, nor had rent ever been sought from or paid by Amit [or by his wife, for that matter].)

The wife sought dismissal of the proceeding, claiming that she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL §713(7).

Continue Reading Summary Proceedings Are Not Available to Evict Wife (Sister-in-Law of Owner)

A wife’s right to reside in what has been her marital residence for four years, and whose right to do so stemmed not merely from the home-owner’s  permission, but from a true family relationship, cannot be summarily evicted as a mere licensee.  Such was the holding of Nassau County District Court Judge Eric Bjorneby in his June 20, 2013 decision in Kakwani v. Kakwani.

Ms. Anjili Kakwani (the “petitioner”), her brother (Amit Kakwani [the “husband”]) and their parents moved into a one family residence in Carle Place in 2004. The petitioner’s mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006.

In March, 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani (the “wife”). In September, 2008, the petitioner and Amit traveled to India where the petitioner met her future sister-in-law for the first time. In November, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married.

Amit and Nisha resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit moved out of the master bedroom and into another room in the house.

In September, 2013, the petitioner had respondent served with a 10-Day Notice to Quit.

The petitioner brought this summary proceeding pursuant to RPAPL §713(7) to evict the respondent (the petitioner’s sister-in-law) on the ground that respondent was a licensee whose license to reside at the premises had been revoked. (The husband, Amit, was not named as a respondent in this proceeding, nor had rent ever been sought from or paid by Amit [or by his wife, for that matter].)

The wife sought dismissal of the proceeding, claiming that she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL §713(7).

Continue Reading Summary Proceedings Are Not Available to Evict Wife (Sister-in-Law of Owner)