Cite as: Velez v. Rodriguez, 2012-1278 RI C, NYLJ 1202640267321, at *1 (App. Tm., 2nd, Decided January 10, 2014)

2012-1278 RI C

Before: Aliotta, J.P., Pesce and Solomon, JJ.

Decided: January 10, 2014

DECIDED

 

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Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered September 4, 2012. The judgment, entered upon a decision of the same court dated September 14, 2011, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed so much of the complaint as sought to recover upon causes of action for monetary damages.

PER CURIAM

ORDERED that, on the court's own motion, the notice of appeal from the decision dated September 14, 2011 is deemed a premature notice of appeal from the judgment entered September 4, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of

 

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plaintiff in the principal sum of $5,000.

Plaintiff commenced this action in the Supreme Court, Richmond County, seeking to recover the principal sum of $14,593 and the return of two engagement rings. The action was subsequently removed to the Civil Court, pursuant to CPLR 325 (d).

At a nonjury trial, plaintiff testified that the parties had cohabited for a period of years in New York and that, in April 2004, they, together with defendant's children, had gone on vacation to Florida. Plaintiff stated that, at that time, the parties had become engaged, and that he had presented defendant with two engagement rings. Soon afterwards, plaintiff asserted, he had also given defendant $10,000, which was intended to be applied toward a down payment on a house. However, plaintiff testified, within seven weeks thereafter, the parties had terminated their engagement. Plaintiff is seeking to recover the $10,000 as well as the cost of defendant's vacation to Florida, which he had paid for.

Defendant likewise testified that the parties had been engaged to be married, and that plaintiff had given her two engagement rings, although she disagreed about the timing of their engagement. Defendant indicated that she had received $10,000 from plaintiff, but asserted that it had been intended to repay her for various expenditures or for unspecified items he had taken from her, rather than to be applied to a down payment on a marital residence. Defendant also claimed that, after the parties had terminated their engagement, she had paid plaintiff $5,000.

 

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At the conclusion of the trial, the Civil Court ordered defendant to return to plaintiff whatever rings she had in her possession. In its decision, the court characterized plaintiff's $10,000 payment to defendant as a "gratuitous gift." The court credited defendant's testimony that she had paid $5,000 to plaintiff, and described this as the voluntary return of money that defendant was otherwise entitled to retain. So much of the complaint as sought to recover upon causes of action for monetary damages was dismissed, and this appeal, from so much of the judgment as dismissed that portion of the complaint, ensued.

At trial, defendant sought the dismissal of the complaint on the ground that the action was barred under principles of res judicata. Plaintiff testified that, in a prior small claims action against defendant, he had sought to recover the cost of a trip to Florida, and that the small claims action had been dismissed. Plaintiff failed to differentiate between the substance of his prior action and the substance of so much of this action as sought to recover for the cost of a trip to Florida, and we conclude that, in this circumstance, plaintiff's cause of action for damages based on his payment for a trip to Florida was properly dismissed on res judicata grounds (see Merrimack Mut. Fire Ins. Co. v. Alan Feldman Plumbing & Heating Corp., 102 AD3d 754, 754 [2013]; see also Farage v. Bloom, 38 Misc 3d 146[A], 2013 NY Slip Op 50325[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Gerstman v. Fountain Terrace Owners Corp., 31 Misc 3d 148[A], 2011 NY Slip Op 50988[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff claims that the $10,000 payment he made to defendant was a conditional

 

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gift made in contemplation of marriage, and that, upon the termination of the parties' engagement, he was entitled to the return of the gift. At trial, defendant admitted receiving the $10,000 from plaintiff, and, although she differed with plaintiff about the timing of the parties' engagement, she never contradicted his claim that the payment had been made while the parties had been engaged to be married. There is a strong presumption, rebuttable only by clear and convincing evidence, that any gifts made during the engagement period are given solely in consideration of marriage, and are recoverable if the marriage does not occur (2 Carmody-Wait 2d §9:26; see also Civil Rights Law §80-b; Gaden v. Gaden, 29 NY2d 80, 85 [1971]; Friedman v. Geller, 82 Misc 2d 291, 292 [Civ Ct, NY County 1975]). Based upon our review of the evidence, we conclude that defendant failed to provide a clear and convincing refutation of plaintiff's claim that the $10,000 gift had been made during the time that the parties had been engaged to be married and had been made in contemplation of marriage. We do not disturb the Civil Court's finding that defendant returned $5,000 to plaintiff. Consequently, plaintiff was entitled to recover $5,000 from defendant.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $5,000.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

VIEW FULL CASE