Lowinger v. LowingerLowinger v. Lowinger
OPINION OF THE COURT
This аppeal presents the question of whether an alleged oral agreement to provide one with various financial benefits in exchange for undergoing religious conversion is enforceable.
Plaintiff is a South Korean native who is seeking to enforce an oral contract entered into with her mother-in-law, Edith, a
According to plaintiffs trial testimony, she and defendant allegedly reached the oral agreement in January 1980, after Louis had badgered her about converting to Judaism and her mother-in-law had voiced concern that the oldest child could not еnroll in the local orthodox yeshiva because plaintiff was not Jewish. In the agreement, the mother-in-law purportedly promised to support plaintiff and her children if she converted to Judaism and raised her children as Orthodox Jews. Specifically, the mother-in-law was said to have prоmised that if plaintiff converted, she would provide (1) a “wonderful home” for her, Louis and the children; (2) a generous lifestyle for the rest of their lives; (3) the best education that money could buy for the children; (4) financial support at the same level for plaintiff, the children and Louis for the rest of their lives; (5) employment in the family business for the children if they wished it; (6) testamentary financial provisions for plaintiffs children equivalent to those of the mother-in-law’s other grandchildren; (7) acceptance of plaintiff and her children as members of the family.
Plaintiff allegedly agreed to the offer but never disclosed her conversation with defendant to anyone, not even family members. She and Edith never discussed the agreement or related matters again and there was no written memorialization
Defendant first attacked the complaint after joinder of issue, but prior to discovery, by motion to dismiss and/or for summary judgment. Plaintiff cross-mоved for leave to file an amended complaint. The IAS court granted the cross motion in part and denied it in part. Upon appeal, this Court modified the IAS court’s order by permitting plaintiff to amend the complaint to include a claim sounding in breach of oral contract. The Cоurt held that there were issues of fact as to whether plaintiffs religious conversion constituted part performance and unconscionable injury, which could remove the alleged oral contract from the Statute of Frauds (Lowinger v Lowinger,
Upon remand to the trial court and after discovery wаs completed, defendant moved for summary judgment on the grounds that the alleged oral agreement was barred by the Statute of Frauds, that the agreement was too vague to be enforced and that enforcement of the agreement would be against public policy. Defendant аlso claimed that plaintiffs conversion was not unequivocally referable to defendant’s alleged promise of the mansion and generous future support; it could also be attributed to Louis’s desire that the children attend an orthodox yeshiva.
The court (Barbara Kapnick, J.), in an ordеr entered April 6, 2000, held that this Court’s decision (Lowinger v Lowinger, supra) had decided the issues raised by defendant and would
At the bifurcated trial, the issue was limited to whether or not the parties ever made an oral agreement and, if so, what werе its terms. In addition to the testimony elicited from plaintiff recounted supra, both parties introduced testimony from religious experts on conversion to Judaism, and defendant testified. The expert testimony conflicted as to whether the rabbi who performed the conversion would have inquired as to thе motive for the conversion, plaintiffs expert asserting that most rabbis would not and defendant’s stating that such question would be asked at least twice during the process. Defendant, 77 years old at the time of trial, categorically denied plaintiffs contentions that there was a meeting betweеn the two, that any promises were made to plaintiff and that she had sought to induce plaintiffs conversion. She claimed the mansion in Harrison was purchased as an investment, not as a gift to the couple as plaintiff alleged.
The jury unanimously found that the two parties entered an oral agreement in 1980 and that defendant promised to: (1) treat plaintiff and her children as family; (2) increase the family’s stipend since Louis had an Orthodox Jewish family to raise; (3) give plaintiff a “wonderful” house for the family; (4) provide an education for the children; (5) provide employment in the family business for plaintiff’s children if they desired. The jury vote was 5 to 1 in finding that defendant agreed to provide rights of inheritance to plaintiffs children equal to her other grandchildren and in finding that defendant did not agree to provide plaintiff with unlimited funds. The court declined to set aside the verdict and an interlocutory judgment was entered reflecting that verdict.
With refеrence to defendant’s assertion of the Statute of Frauds as a bar to enforcing the alleged agreement, the IAS court erred in reading this Court’s decision on the motion to dismiss as addressing the merits of defendant’s pleadings, instead of their sufficiency, and thus erred in failing to make a determination as to her Statute of Frauds contentions. We find that six of the seven promises allegedly made to plaintiff run afoul of the Statute of Frauds set forth at General Obligations Law § 5-701 (a) (1):
“Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the pаrty to be charged therewith, or by his law-ful agent, if such agreement, promise or undertaking:
“1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime.”
The oral promises to provide (1) financial support to plaintiff and her children for their lifetimes; (2) the best education that money could buy for the children; (3) employment in the family business for the children if they wished it; (4) an inheritance for plaintiff’s children equivalent to that of the mother-in-law’s other grandchildren; (5) an increase in Louis’s financial support to aid him in raising his Orthodox Jewish family; and (6) acceptance of plaintiff and her children as members of the family, all violate General Obligations Law § 5-701 (a) (1), since none of them could be fully performed within one year of the making thereof (see, Nakamura v Fujii,
The seventh oral promise, of a “wonderful house,” violates General Obligations Law § 5-703 (1), which requires a writing to effect transfer of an interest in realty (see, McDermott v
Plaintiffs assertion that the part performance exception to the Statute of Frauds removes the alleged oral agreements from its ambit is without merit. Plaintiff failed to meet the standard of showing that her performance of the oral agreement was “unequivocally referable” to the oral agreement (Anostario v Vicinanzo,
Moreover, several of the type of promises as are involved here have been held to be unenforceable as too vague and indefinite, such as employment for life (see, Rooney v Tyson,
Plaintiffs assertion of the equitable doctrine of promissory estoppel, in attemрting to avoid the affirmative defense of the Statute of Frauds, is impermissible here (see, Cohen v Brown, Harris, Stevens,
Finally, although we need not reach defendant’s contention that the alleged agreement by a parent to rear her children in the observance of a particular religion is void as against public policy, we would note that it is well settled in New York law that such agreements are permissible and do not implicate public policy (Weinberger v Van Hessen,
Accordingly, the interlocutory judgment of the Supreme Court, New York County (Barbara Kapnick, J.), entered on or about October 31, 2000, which, following a bifurcated jury trial on the issue of liability, found that Edith Lowinger agreed to provide plаintiff Kay Lowinger and her children certain financial benefits in exchange for her religious conversion to Judaism, should be reversed, on the law and the facts, without costs, the judgment vacated and the complaint dismissed. The Clerk is directed to enter judgment accordingly. The appeal of thе order, same court and Justice, entered on or about April 6, 2000, insofar as it declined to dismiss the complaint, pursuant to CPLR 3212, as against Edith Lowinger, should be dismissed, without costs, as subsumed in the appeal from the judgment.
Motion seeking leave to file amicus curiae brief denied. Motion seeking stay of disсovery pending decision of appeal and for other related relief denied as moot.
Sullivan, P. J., Nardelli, Mazzarelli and Saxe, JJ., concur.
Interlocutory judgment, Supreme Court, New York County, entered on or about October 31, 2000, reversed, on the law and the facts, without costs, the judgment vacated and the complaint dismissed. Appeal from order, same court, entered on or about April 6, 2000, dismissed, without costs, as subsumed in the appeal from the judgment. Motion seeking leave to file amicus curiae brief denied. Motion seeking stay of discovery pending decision of appeal and for other related relief denied as moot.