EFTA01121261.pdf

Silver v. Starrett, 176 Mlsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 unconscionability so that it is clear that the 176 Misc.2d 511 agreement is not arrived at by consent mutually Supreme Court, New York County, New York. and freely given; the exercise of one's free will is not to be overborne. Ann SILVER, Plaintiff, v. Barbara STARRETT, Defendant. Cases that cite this headnote April 16, 1998. Self-described lesbian who had entered into nonmarital 131 Contracts separation agreement with her former partner at end of lioDuress their 14—year relationship brought action against former partner for sums due under agreement, and former partner Pressures, whether emotional or economic, do counterclaimed for rescission and restitution of sums not justify a contract later being set aside for already paid. The Supreme Court, New York County, duress. Edward J. Greenfield, J., addressing issues of first impression, held that: (1) agreement was ratified when parties complied with its terms for three years, even if one I Cases that cite this headnote of the parties entered into agreement under emotional duress, and (2) agreement was supported by adequate consideration. Judgment for plaintiff. Contracts -4Duress "Duress" requiring contract to be set aside may be by physical compulsion, by threat, or by the West Headnotes (II) exercise of undue influence, tantamount to self-interested cheating. P1 Marriage -4Effect of Informal or Invalid Marriage or I Cases that cite this headnote Union In nonmarital breakups, the law largely leaves the post-relationship consequences to agreement 151 Marriage governing obligations of one party to another as -4Effect of Informal or Invalid Marriage or its parties may work out. Union Cases that cite this headnote Threat not to get out of a nonmarital relationship amicably is not duress that invalidates separation agreement. Marriage Cases that cite this headnote 4 -Effect of Informal or Invalid Marriage or Union For purposes of nonmarital separation 151 Marriage agreement allegedly entered into under duress, P-Effect of Informal or Invalid Marriage or question is whether there is overreaching or Union WestlawNexi © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01121261 Silver v. Starrett 176 MIsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 the defense waived. Fact that one party appeared to yield more in nonmarital separation agreement than the other does not make it unconscionable. Cases that cite this headnote Cases that cite this headnote PI Contracts 4F,Sufficiency in General Iri Marriage Valid consideration which will support a -4Effect of Informal or Invalid Marriage or contract need not be equal on both sides, and if a Union minimal yielding of a position by one side promotes an agreement, then it will be deemed Nonmarital separation agreement entered into enforceable; there is no need to measure the between two self-described lesbians at end of relative weight of the consideration provided by their 14—year relationship was ratified when each party. parties complied with its terms for three years, even if one of the parties entered into agreement under emotional duress; allegedly coerced party 2 Cases that cite this headnote made salary and gift payments required by agreement for three years without protest, and only raised duress defense when her former partner sued her based on her failure to make payments in fourth year. Marriage -4Effect of Informal or Invalid Marriage or Union I Cases that cite this headnote Nonmarital separation agreement entered into between two self-described lesbians at end of their 14—year relationship was supported by adequate consideration; one of the parties was lei Contracts required to pay "salary" to the other for five 4 -Rescission for Invalidity of Assent years, and the other party agreed to move out of apartment and to give up claims to other If a party has been placed under duress, then properties. forced agreement must be disavowed at the earliest possible opportunity. I Cases that cite this headnote Cases that cite this headnote Attorneys and Law Firms Contracts iirEstoppel and Ratification **916 *512 Klein, Zelman, Rothermel & Dichter (Jane B. Contracts Jacobs and David O. Klein of counsel), for plaintiff. irRescission for Invalidity of Assent Raoul Lionel Felder, P.C. (Brett Kimmel of counsel), for Even when the statute of limitations is not defendant. involved, a party seeking to repudiate a contract Opinion procured by duress must act promptly to disavow it or the contract is deemed ratified and EDWARD J. GREENFIELD, Justice. WestlawNexi © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA01121262 Silvery. Starrett 176 Mlsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 But then, Silver went on to detail why she was upset and This case involves a challenge to the validity of a angry: nonmarital "separation agreement" negotiated after the breakup of a long relationship. The agreement is claimed "I'm upset that I am suddenly unmarried. I'm furious to be void because of extreme emotional stress at the time that we had so much in common, as I really wanted this it was made and because it is alleged to have lacked to work." consideration. There appear to be no reported cases dealing with the validity of a "separation agreement" "I am angry because I was not between same-sex former partners. important enough to you ... I feel deeply betrayed and rejected by The parties are self-described lesbians, now locked in a your attitude toward my deafness." bitter battle in the aftermath of a 14-year relationship. Defendant Starrett is a successful doctor who obviously "I'm angry that you refuse to break suffers from low self-esteem. While she is plain looking the vicious cycle of coldness, icy and considerably overweight, she describes plaintiff defense and indifference. I'm Silver, a younger woman, as strikingly beautiful, pained that you withheld intelligent, but deaf—and a person who had difficulty in forgiveness to avoid loving me and holding a steady job. Starrett invited Silver to live with prevent my loving you ..." her. She said this opened a new world for her—that it was exciting, mysterious and sensual to be with a beautiful "I'm angry that you considered me deaf woman. As she was supporting Silver anyway, she ultimately offered her a paid position as "administrative the sole reason for all your assistant", to do what she now describes as essentially unhappiness in life ..." "menial work". "I'm hurt that you refused to However, as time went on, Dr. Starrett came to feel she believe that I would take care of was being used financially and emotionally. She you, even financially." complained that she felt inadequate, and that Silver accused her of being "too fat and boring in bed." She "I'm angry that you use money as a experienced stress in her medical practice, for she was power play and to hurt me to no dealing with patients who were dying of AIDS. She end ..." became depressed and **917 suicidal. After intensive psychotherapy, she decided to tell Silver that they could "I'm hurt that you zeroed in on to not continue on. Silver responded with a long, emotional my most vulnerable spot—when statement [annexed to Starrett's affidavit] in which she you knew that I compensated for it said she was trying to transform her emotional hurt into through my non-financial forgiveness. First she set forth her own shortcomings in a contributions." long list of"If Only's"—such as: *513 "If only I had not thrown temper tantrums at you "I'm angry that you didn't see how in front of others ..." ineffective, painful and traumatizing a divorce can be for "If only I had not been so bitchy me.." toward you and instead be more grateful for the good life you so "I'm pained that you didn't want generously gave me ..." me to live with you ..." "If only I had fully understood "I'm pained at the thought of what you really wanted from me having to divide up our property." "I'm upset that you tried to put me "If only I had the humility, insight and sensitivity to out to pasture." avoid attacks, blame, control, threats, conflicts and confrontations ..." "I'm hurt and overpowered with enormous grief." WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01121263 Silver v. Starrett 176 Misc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 agreement as its parties may work out. Having gone on for pages about her hurts and grievances, she then listed the dreams, hopes and aspirations that they Despite the highly publicized case of Marvin v. Marvin, might be able to share together. 18 Ca1.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, where a California court awarded a nonmarital party, on her claim This emotional letter, self-accusatory, blaming and of "palimony", an amount of money to enable her to get conciliatory at the same time, is declared by Starrett to started again after a breakup, New York courts have have caused her to suffer extreme guilt, but then, shortly emphatically rejected that approach. thereafter, she got a letter from a lawyer representing Silver, stating that Silver *514 was seeking a settlement to *515 In Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d get out of Starrett's life. At this point, Starrett says, she 592, 413 N.E.2d 1154, the court, when required to pass became "crazed" and obsessed with getting Silver out of upon an alleged agreement between two unmarried her life and home, even if she had to pay. Starrett persons who had been living together, reaffirmed the long contends, "she forced me to make these offers as a result standing doctrine that an agreement founded only on what of her greed and avarice and control ... She refused to has been termed a "meretricious relationship" (at 487, 429 allow me to end our relationship until she was paid off.." N.Y.S.2d 592, 413 N.E.2d 1154) based on "illicit sex" would not be enforced by a court, but the fact of Plaintiff Silver's position is that the initiative for a cohabitation without marriage would be no bar to carrying separation agreement with a payout came from Starrett, out an express agreement (but not an implied contract) that Starrett prepared five successive drafts, that both within the normal rules of contract law based on parties were represented by counsel in the negotiations, consideration other than sex. See also, Whorton v. and that the agreement was presented to Silver on a "take Dillingham, 202 Cal.App.3d 447, 452, 248 Cal.Rptr. 405, it or leave it" basis. Silver moved out, as agreed upon, and 408. Starrett proceeded to make payments to Silver as provided in the agreement for the next three years. Starting in the In Trimmer v. Van Dome!, 107 Misc.2d 201, 206, 434 fourth year, when payment was no longer required for a N.Y.S.2d 82 aff'd 82 A.D.2d 1023, 441 N.Y.S.2d 762, sum certain, but for the difference between $21,000 and app. den. 55 N.Y.2d 602, 446 N.Y.S.2d 1025, 431 N.E.2d Silver's actual income, Starrett refused to pay, initially 310, cat den. 456 U.S. 918, 102 S.Ct. 1774, 72 L.Ed.2d contending that Silver had not made any good faith effort 178, involving a nonsexual relationship between an to obtain employment. She now argues that the agreement unmarried couple, a wealthy elderly widow and a is void and unenforceable for duress and lack of gentleman who acted as her steady (and well-subsidized) consideration. Silver, now a resident of Seattle, escort, this court dismissed the claim of an implied Washington, sues for the sums due under the agreement contract for support beyond breakup, declaring: for the fourth and fifth years together with attorneys' fees. Defendant Starrett counterclaims for rescission and "The implied obligation to restitution of the sums already paid. compensate arises from those things which, in normal society, we expect to pay for. An obligation to pay for friendship is not ordinarily to be implied—it is too crass. Discussion Friendship, like virtue, must be its own reward." in When a personal relationship between two people comes to an unhappy end, money is the balm which will Accord, ;Morton v. Dillingham, supra, at 454, 248 sometimes assuage the **918 torment of failure. The Cal.Rptr., at 409. obligations of one party to another may be mutually agreed upon, they may be implied, or they may be imposed by law. If there has been a legally recognized The court then applied the ordinary tests as to validity of marriage the law will define the financial consequences an express contract, but found it wanting for vagueness, that flow—for financial support, equitable distribution, lacking specificity as to amount and duration. real property interests and inheritance. Public policy, as it In Kastil v. Cairo, 145 A.D.2d 388, 536 N.Y.S.2d 63, a is embodied in the law, is vigilant to prevent overreaching woman employed by a law firm claimed an agreement by a dominant partner, even when there has been an with a partner with whom she had a personal and sexual express agreement. In nonmarital breakups, the law relationship. When the relationship ended she received largely leaves the postrelationship consequences to such WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA01121264 Silver v. Starrett, 176 Mlsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 further payments for a while, but when they ceased she sued, claiming there was an oral agreement to continue 151 161 Similarly, the contention of duress, coercion and payments until she could obtain a comparable position. undue influence was rejected as a defense in the recent The court found there was no enforceable agreement, case of Lutnik v. Ltnik. Sup.Ct.N.Y. County, NYU absent an expressly stated obligation. 4/14/98 p. 26, col. 5. There, a wife claimed she was compelled to sign an unfavorable antenuptial agreement In this case, there is no question as to the existence of an when her prospective husband threatened not to go express written agreement worked out by the parties at the through with the marriage unless she signed. As here, the termination of their relationship, nor is there any question agreement had gone through multiple drafts with the that defendant is refining to abide by that agreement. advice of attorneys on both sides. The defendant claimed Defendant's position is that the agreement is void and that the plaintiff's threats rendered her "numb". (supra, at unenforceable because of duress and lack of 26, col. 6). The court held that did not establish coercion consideration. or the deprivation of free will. If a threat not to go into a relationship is not deemed to constitute duress, certainly a threat not to get out of a relationship amicably is not duress. Further, the fact that one party appeared to yield more in the agreement than the other does not make it Duress unconscionable. This does not appear to be a case where one party totally "There is nothing in the record dominated the other, or had the leverage to force the other herein to indicate duress, to *516 act against her will. Each party had a desired misrepresentation, *517 or objective, and was willing to make concessions to achieve overreaching by appellant. The fact it. That is the essence of every contract negotiation. that respondent gave away more than he might have legally been 121 P1 MI While agreement between spouses involves a compelled to give does not mean fiduciary relationship and there is strict surveillance as to that the separation agreement was separation agreements between married persons, different the product of overreaching by considerations apply to nonmarital agreements. Christian appellant." v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849. The question is whether there is overreaching Groper v. Groper, 132 A.D.2d 492, 497-498, 518 or unconscionability so that it is clear that the agreement N.Y.S.2d 379 is not arrived at by consent mutually and freely given. The exercise of one's free will is not to be overborne. Muller "919 Const. Co. v. New York Telephone Co., 40 On the breakup of their relationship, both women were confronted with pain, resentment and emotional loss. Dr. N.Y.2d 955, 390 N.Y.S.2d 817, 359 N.E.2d 328. Starrett was not a helpless puppet being manipulated by Pressures there may be, but pressures, whether emotional or economic, do not justify a contract later being set aside the wily Silver. She had a clear objective—to get Silver out of her life. The agreement did not come about in for duress. See, for example, the case of Kazaras v. impulsive fashion or through unrelenting crisis. It was Manufacturers Trust Co., 4 A.D.2d 227, 164 N.Y.S.2d 211, red. 4 N.Y.2d 930, 175 N.Y.S.2d 172, 151 N.E.2d defendant Starrett who first came up with a handwritten draft months before the agreement was finalized 356, in which it was held that a crippled pregnant young proposing to provide plaintiff with an annual salary and to woman, who desperately needed funds from her father, because her husband was critically ill, and who was told buy out her interest in their Belmar house. There were several follow-up drafts and the seven-page agreement of she had to sign an instrument without full consultation March 1, 1991 was carefully set forth in lawyerly with a lawyer or she would be cut off, was not subject to duress. This was "a family situation in which love and ... language. The very first paragraph recites that both parties had been represented by lawyers throughout the pressure, selfishness and sacrifice, trust and mistrust were negotiation of the agreement The agreement purported to all intermingled inextricably." Id. p. 239, 164 N.Y.S.2d be a final settlement of all claims between the parties 211. The conflict having been resolved by mature and fully competent adults, there was no warrant for court "whether arising at law or in equity, or by statute, common law, or otherwise, and regardless of whether interference. Duress may be by physical compulsion, by presently accrued, inchoate or at a future time." Starrett threat, or by the exercise of undue influence (tantamount to self-interested cheating). Evans v. Waldorf-Astoria agreed to pay plaintiff a "salary" of $30,000 annually for the next three years. In addition, she agreed to make Corp., 827 F.Supp. 911, aff'd. 33 F.3d 49 (C.A.2 1994). WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA01121265 Silvery. Starrett 176 MIsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 annual gifts of $9,000 a year for three years tax free. the acceptance of benefits. Starrett agreed to file gift tax returns therefor. At the close "It has been recognized that the acceptance of the terms of the three-year period, Starrett agreed to pay the of a separation agreement, by payment or acceptance of difference between Silver's annual gross income and payment constitutes ratification ... 'A party who $21,000 for the next two years. She also agreed to make executes a contract under duress and then acquiesces in contributions to Silver's Keogh pension plan and to her the contract for any considerable length of time, ratifies dental and life insurance. They agreed to a division of the contract.' (Sheindlin v. Sheindlin, 88 A.D.2d 930, their personal property and Silver agreed to vacate the 931, 450 N.Y.S.2d 881)." Niosi v. Most 226 A.D.2d various properties of Starrett and to relinquish all of her 510, 511-512, 641 N.Y.S.2d 93. claims to any of Starrett's holdings including the Belmar, New Jersey property. Defendant here made the so-called salary and gift payments for three years without a murmur and The agreement itself has all the indicia of a carefully presumably had the payments reflected in her tax returns. worked out mutual negotiation. Starrett had an objective, In Groper v. Groper supra, where 21 months had elapsed, and by that agreement, she achieved it. Defendant not the court stated at p. 496, 518 N.Y.S.2d 379 that time only ratified the agreement by her signature, but **920 by was: her conduct in complying with the contract for the next three years. It was only in the fourth year that Starrett "more than sufficient for a party who has acquiesced to refused to make further payments, explaining that it was an agreement against his better judgment, or under because of Silver's failure to make a good-faith effort to duress, to raise his objections and disavow the get employment. (Nowhere in the agreement is there such agreement. The Court of Appeals has held that where a requirement). A dispute also arose over whether Silver there is no evidence that the plaintiff's 'claimed had accurately reported her actual income. *518 It was incapacity continued through the two years during not until after this action commenced that Starrett, for the which the contract was effective and fully performed first time, raised the contention that the original by defendant, and the benefits received by plaintiff, agreement was the product of duress. This was clearly an the plaintiff must be deemed to have ratified the afterthought. agreement *519 (Beate! v. Beutel, 55 N.Y.2d 957, 958, 449 N.Y.S.2d 180, 434 N.E.2d 249 [1982] )." RI PI If a party has indeed been placed under duress, then the forced agreement must be disavowed at the earliest She does not claim that during that period she was under a possible opportunity. See, e.g., Gallas v. Greek Orthodox psychiatric disability which rendered her clinically Archdiocese, 154 Misc.2d 494, 587 N.Y.S.2d 82. Even depressed, dysfunctional and unable to take protective when the statute of limitations is not involved, the law is steps. See, e.g., Sanders v. Rosen, 159 Misc.2d 563, 577, clear that a party seeking to repudiate a contract procured 605 N.Y.S.2d 805. There is no question that on these by duress must act promptly to disavow it or the contract undisputed facts defendant chose to live with the is deemed ratified and the defense waived. See, In re agreement and to comply with it. The claim that she was Guttenplan, 222 A.D.2d 255, 257, 634 N.Y.S.2d 702; in such emotional turmoil that she could not act to protect Bank Lemma Trust Co. v. D'Evori Intl Inc., 163 A.D.2d her interest is untenable. There certainly was ratification 26, 30, 558 N.Y.S.2d 909; Bethlehem Steel Corp. v. of the agreement. Solow, 63 A.D.2d 611, 405 N.Y.S.2d 80. Defendant argues that the passage of time makes no difference in cases of duress because separation Consideration agreements procured by duress are to be considered void ab initio, citing Angeloff v. Angelo(); 56 N.Y.2d 982, 453 1101 It is the further position of the defendant that even in N.Y.S.2d 630, 439 N.E.2d 346 and Perl v. Per!, 126 nonmarital agreements which are construed as ordinary A.D.2d 91, 512 N.Y.S.2d 372. Those cases are not contracts, the agreement must be considered void if it applicable here. They involve marital separation lacks consideration. Defendant contends that she was the agreements and in each case a claim of duress was raised party who gave up everything and that all plaintiff did in court within eight months of the making of the was to agree to do that which she already had a legal agreement. Even in intraspousal situations the vast obligation to do. The valid consideration which **921 majority of cases involving separation agreements hold will support a contract need not be equal on both sides, that they are merely voidable because of claimed duress, and if a minimal yielding of a position by one side unconscionability, or undue influence, and the defense is promotes an agreement, then it will be deemed lost by the passage of time, the making of payments, or WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA01121266 Silvery. Starrett 176 Mlsc.2d 511 (1998) 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. 98266 enforceable. There is no need to measure the relative what she bargained for. Defendant viewed the bargain as weight of the consideration provided by each party. acceptable, and she termed the payments as wages and gifts, even though plaintiff was to perform no further lit The agreement in question, drafted by lawyers, services. That does not mean that the only supporting provides at the very outset that it is made "in consideration was past services so as to come within the consideration of the mutual promises contained herein". scope of General Obligations Law § 5-1105. What is The agreement "is executed as and for a final settlement recited in the contract is both past and present of all claims between them ..." Defendant agreed to make consideration, and that is sufficient to validate it. specified payments and plaintiff agreed to vacate the premises at 112 East 19th Street by March 1, 1991. They agreed to exchange releases and plaintiff expressly relinquished all claims to any and all holdings of the defendant, including three New York properties and a Conclusion summer shore house in Belmar, New Jersey. Plaintiff has pleaded a valid and enforceable contract Defendant claims that the plaintiff was giving up nothing which was ratified by continued performance for three by this agreement as she would have been obliged to years, and is not subject to the defenses of duress and lack move out in any event, and she had no valid claims to any of consideration. Plaintiff is therefore entitled to summary of the real property. The affidavits reveal that plaintiff did judgment on the amounts demanded for the fourth and make some payments toward the maintenance of the fifth years, as corrected and defendant's counterclaims for apartment they lived in and that she provided some of the restitution of the support already provided are dismissed. money necessary to purchase a time share in the house at Further, the agreement provides that in the event one Belmar. (Neither plaintiff nor defendant were on the deed party is compelled to commence litigation to enforce the to that house). It should be noted that from the very contract, the costs, disbursements and reasonable beginning, defendant Starrett was proposing to "buy Ann attorneys' fees shall be awarded to the prevailing party. out of the Belmar house at market value ... for 28% of our Plaintiff's attorneys have submitted a breakdown of the 1/3 holdings", and to divide all personal property as legal services performed and the valuation thereof. These amicably as possible. Defendant can hardly be heard now are not contested by defendant and the Court finds that the to *520 argue that a property release she insisted on was value of the services so itemized is reasonable. Therefore, of no value. Plaintiff resided in the 19th Street residential plaintiff is entitled to an award of attorneys' fees of loft for many years. There is no need to parse out what $15,751.50 together with expenses necessarily incurred of property rights or tenant rights she may have acquired by $431.35. living there and making some payments. Defendant wanted two things and wanted them enough so that she agreed to pay a considerable sum of money over a All Citations five-year period. She wanted plaintiff out of her apartment immediately without further disputes or 176 Misc.2d 511, 674 N.Y.S.2d 915, 1998 N.Y. Slip Op. complications, and she wanted her to relinquish any claim 98266 she might have to any of defendant's property. She got End of Document C 2015 Thomson Reuters. No claim to original U.S. Government Works. WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA01121267