Dee v. Rakower, 112 A.D.3d 204

Plaintiff and defendant, a same-sex couple, lived together in a committed relationship from 1990 to 2007 and are the parents of two children who were biologically and mutually adopted.
Before children, both worked full-time and pooled salaries; they purportedly formed a partnership/joint venture and purchased a house as joint tenants with rights of survivorship.
After the first child was born, plaintiff left full-time work to care for children and perform non-financial family services; defendant continued full-time work.
Plaintiff alleges an oral agreement to share equally in all financial and non-financial contributions, including retirement earnings, and that plaintiff would receive one-half of defendant’s retirement contributions earned during the forbearance period.
Upon dissolution of the relationship, plaintiff asserted multiple causes of action, including breach of contract and equitable claims (constructive trust, unjust enrichment, accounting).
Supreme Court granted dismissal of several equitable claims; the appellate majority held breach of contract may proceed while dismissing the constructive trust, unjust enrichment, and accounting claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the complaint state a breach of contract claim?	Plaintiff alleges an express oral contract to share assets and retirement benefits during forbearance.	No writing or meeting of the minds on asset distribution upon dissolution; no contract to divide retirement benefits.	Yes; complaint sufficiently pleaded contract elements to survive dismissal.
Whether the constructive trust claim is viable.	Equitable relief could apply to share in defendant's pension and assets.	Pension assets precluded from constructive trust under ERISA and terms are too uncertain.	Dismissed; ERISA precludes and allegations insufficiently state a trust.
Whether unjust enrichment can be maintained.	Unjust enrichment arises from plaintiff’s forbearance and shared contributions.	Plaintiff fails to allege defendant was enriched at plaintiff’s expense.	Dismissed; failure to allege enrichment at plaintiff’s expense.
Whether an accounting claim can be upheld.	Confidential relationship justifies accounting of assets from the partnership.	No fiduciary relationship sufficient to support accounting; lack of entrustment.	Dismissed; no adequate fiduciary relationship alleged.

Morone v Morone, 50 NY2d 481 (1980) (cohabitants may form enforceable express contracts)
Campaign for Fiscal Equity v State of New York, 86 NY2d 307 (1995) (liberal pleading standards and inference for CPLR 3211 motions)
Leon v Martinez, 84 NY2d 83 (1994) (pleadings liberally construed; determine if cognizable theory exists)
Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409 (2001) (pleading standards; factual inferences favorable to plaintiff)
Halliwell v Gordon, 61 AD3d 932 (2009) (consideration in contract implied by forbearance and mutual benefit)
Cytron v Malinowitz, 13 Misc 3d 1218[A] (2006) (ERISA precludes constructi ve trust on pension plans)