| N.Y. App. Div. | Jul 21, 1983
— Appeal from an order and judgment of the Supreme Court at Special Term (Mercure, J.), entered December 9, 1982 in Washington County, which granted defendant’s motion to dismiss the complaint as barred by the Statute of Frauds. Plaintiff, a licensed practical nurse, commenced caring for Lyle and Harriet Nelson, an elderly couple, on October 10,1976. As part of her duties, she visited the Nelson home each day to attend to their medical needs and do normal household chores. After Mrs. Nelson died in July, 1977, plaintiff continued to perform the same services for Mr. Nelson until his death on August 31,1979. During Mr. Nelson’s final illness, plaintiff moved into the Nelson residence to provide continuous care for him. It is uncontroverted that plaintiff was never paid for her services but relied upon the Nelsons’ repeated oral promises that they would convey their farm to her upon their deaths. In a will, executed just before his death, Lyle Nelson left plaintiff nothing; she then instituted this suit against the executor of Mr. Nelson’s estate seeking recovery in quantum meruit for the reasonable value of her services and, in a second cause of action, enforcement of an oral agreement to devise the farm to her. Special Term, dismissing the complaint in its entirety, found the contract cause of action was barred by the provisions of EPTL 13-2.1 (subd [a], par [2]), which require that a contract to make a testamentary disposition be in writing, and refused to allow the quantum meruit claim, maintaining it would “render impotent EPTL 13-2.1”. During appellate argument, plaintiff conceded that the contract cause of action had been properly dismissed, leaving for resolution only the quantum meruit ruling. The fact that an express contract is unenforceable because of its failure to comply with the Statute of Frauds does not mean that quasi-contractual recovery for the reasonable value of services rendered is, therefore, necessarily unavailable (Silberberg v Haber, 42 AD2d 552). Indeed, the right to recover has long been recognized in the specific circumstances presented, namely, when there has been an oral contract to make a bequest (McKeon v Van Slyck, 223 NY 392, 399; Matter ofDertadian, 271 App Div 861), and there is nothing in either the EPTL or Dombrowski v Somers (41 NY2d 858, revg 51 AD2d 636) which alters this durable rule. Special Term’s fear of undermining the requirement that a contract to make a testamentary disposition be in writing is unfounded because the recovery afforded persons like plaintiff is limited to the reasonable value of services they performed; the consideration which would have been forthcoming had the terms of the oral agreement been enforced is irrelevant (see Hausen v Academy Print. & Specialty Co., 34 AD2d 792) unless it can be helpful in determining the reasonable value of the services provided. That this distinction is real is evidenced by the fact that plaintiff can receive only the value of her services and not the property promised by decedents. With respect to Dombrowski v Somers (supra), an examination of our opinion and that of the Court of Appeals discloses that the issue there did not involve quasi contract but centered on the vagueness of the oral promise to make a testamentary bequest. Furthermore, as pointed out by the dissent in this court (Dombrowski v Somers, 51 AD2d 636, 637 [Kane, J., dissenting]), quantum meruit was inappropriate because of the intimate relationship between the