Dee v. Rakower

Appellate Division of the Supreme Court of New York, Second Department · Family Law

Family LawContractsEquityUnmarried cohabitantsbreach of contractunmarried couplesame-sex relationshipcohabitation

Facts

The parties lived together in a committed same-sex relationship for nearly 18 years and raised two children, with each party being the biological parent of one child and the adoptive parent of the other. The complaint alleged that before having children both parties worked full-time, pooled salaries, and treated themselves as a partnership or joint venture, including purchasing a house as joint tenants with rights of survivorship. After the first child was born, the parties allegedly agreed that the plaintiff would leave full-time work, work part-time, and provide childcare and other non-financial services while the defendant continued full-time employment. The plaintiff further alleged that the parties specifically agreed she would receive one half of the defendant's retirement contributions and earnings accrued during the period when the plaintiff no longer worked at a job providing retirement benefits.

Issue

Whether the complaint sufficiently stated a cause of action for breach of contract based on the alleged oral agreement between the parties, and whether it also sufficiently stated causes of action for constructive trust, unjust enrichment, and an accounting. More specifically, the court considered whether an unmarried cohabiting couple's alleged agreement to share retirement-related assets could be enforceable at the pleading stage.

Rule

On a CPLR 3211(a)(7) motion, the court accepts the complaint's factual allegations as true, gives the plaintiff every favorable inference, and asks only whether the facts fit within any cognizable legal theory. A breach of contract claim is sufficiently pleaded by alleging the existence of a contract, the plaintiff's performance, the defendant's breach, and resulting damages; an express agreement between unmarried persons living together is enforceable under ordinary contract principles so long as illicit sexual relations are not part of the consideration. A constructive trust generally requires a confidential or fiduciary relationship, a promise, a transfer in reliance, and unjust enrichment; unjust enrichment requires enrichment at the plaintiff's expense such that retention would be against equity and good conscience; and an accounting requires a confidential or fiduciary relationship plus entrustment of money or property that the defendant was bound to account for.

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In Albany, Maya Torres and Elena Brooks lived together for 11 years and raised a child. Maya alleges that they expressly agreed Maya would leave her hospital job with retirement benefits to work part-time and provide childcare, while Elena would continue full-time work, and that Maya would receive one-half of the retirement contributions Elena accrued during that period; after they separated, Elena refused to pay.

On Elena's motion to dismiss for failure to state a claim, which is the strongest argument that Maya's breach of contract claim should survive?

Explanation. An express agreement between unmarried cohabitants is enforceable under ordinary contract principles so long as illicit sexual relations are not part of the consideration. At the CPLR 3211(a)(7) stage, the court accepts allegations as true and asks whether they fit a cognizable legal theory. Allegations of a specific promise, consideration through career forbearance and family services, performance, breach, and damages suffice.