| Young v Williams |
| 2008 NY Slip Op 00310 [47 AD3d 1084] |
| January 17, 2008 |
| Appellate Division, Third Department |
| John G. Young, Appellant, v Roger Ross Williams,Respondent. |
—[*1] Turkel, Forman & de la Vega, New York City (Jonathan S. Follender of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Coccoma, J.), entered December1, 2006 in Delaware County, which, among other things, granted defendant's motion forsummary judgment dismissing the complaint.
In 1999, the parties, who were domestic partners, purchased a residence in the Town ofRoxbury, Delaware County for approximately $175,000, taking title as tenants in common.Although the parties had a tumultuous relationship, for approximately two years they hostedhome visits and mentored a young child in foster care. The parties were pursuing a joint adoptionof the child in 2004, but were both forbidden from having any further contact with the childfollowing plaintiff's revelation to a caseworker that he is a "sexual compulsive," that is, a "sexaddict" who cannot "control his sexual actions." Thereafter, the parties' relationship continued todeteriorate until they separated in February 2005.
Upon their separation, the parties orally agreed that plaintiff would convey his interest intheir residence to defendant in return for $35,000 and defendant's satisfaction of a home equityline of credit taken solely in plaintiff's name against the property in the amount of $58,106.42.Plaintiff conveyed his interest in the subject property to defendant by deed in March 2005. Theparties also exchanged general releases in July 2005 relinquishing their respective rights topursue any causes of action against each other that arose prior to the signing of the release. In[*2]January 2006, the property was listed for sale at a price of$990,000, prompting plaintiff to commence this action alleging causes of action for fraud, undueinfluence, mutual and unilateral mistake, unconscionability, constructive trust and partition.
The gravamen of plaintiff's complaint was that he agreed to convey his interest in the subjectproperty and sign the release in reliance upon defendant's promises that he would never sell theproperty and that he would adopt the child that the parties had mentored and raise him in theresidence. Plaintiff sought rescission of the general release benefitting defendant and, in addition,sought to void the underlying transaction, recovery of the fair market value of the property andpunitive damages. Defendant answered and asserted counterclaims seeking, among other things,cancellation of the notice of pendency filed by plaintiff on the property. Supreme Court granteddefendant's subsequent motion for summary judgment dismissing the complaint and vacating thenotice of pendency, and denied plaintiff's cross motion for summary judgment. Plaintiff appealsand we now affirm.
It is well settled that "[w]here, as here, 'the language of a release is clear and unambiguous,the signing of a release is a "jural act" binding on the parties' and will . . . be setaside [only] . . . as a result of 'duress, illegality, fraud, or mutual mistake' "(Gohar v Albany Hous. Auth., 288 AD2d 657, 658 [2001] [citations omitted]; seeMangini v McClurg, 24 NY2d 556, 563 [1969]). With respect to plaintiff's claim of fraud,we note that " '[i]n order to avoid a release on [that] ground[ ] . . . , a party mustallege every material element of fraud with specific and detailed evidence in the record sufficientto establish a prima facie case' " (Morby v Di Siena Assoc., 291 AD2d 604, 605 [2002],quoting Touloumis v Chalem, 156 AD2d 230, 232-233 [1989]; see Shklovskiy vKhan, 273 AD2d 371, 372 [2000]). The elements of a fraud claim are that " '(1) [the]defendant made a representation as to a material fact; (2) such representation was false; (3) [the]defendant[ ] intended to deceive [the] plaintiff; (4) [the] plaintiff believed and justifiably reliedupon the statement and was induced by it to engage in a certain course of conduct; and (5) as aresult of such reliance [the] plaintiff sustained pecuniary loss' " (Ross v Louise Wise Servs., Inc., 8NY3d 478, 488 [2007] [citation omitted]; see Lama Holding Co. v Smith Barney, 88NY2d 413, 421 [1996]). As relevant here, a misrepresentation may include " 'a present, butundisclosed, intent not to perform' " (Van Kleeck v Hammond, 25 AD3d 941, 943 [2006] [citationomitted]).
Plaintiff asserts that he delivered the release at issue in reliance upon defendant's assertionsin e-mails that the release was necessary so that the child previously mentored by the partiescould be adopted by defendant and raised in the subject property. Indeed, although none of thee-mails expressly states that defendant promised to adopt the child as consideration for therelease, defendant concedes that he made statements that he knew to be false regarding hiscontact with the child—such as his assertions that he was exercising regular visitation withthe child and that the child would be permitted to have home visits with him if plaintiff signedthe release.[FN*]In addition, defendant admits that he referred to the child in the e-mails in order to [*3]induce plaintiff to sign the release. Nevertheless, plaintiff does notdispute that it was his confession of his sexual compulsions to the child's caseworker thatresulted in both parties being immediately banned from having any further contact withthe child and thereby rendering any future adoption of the child by defendant impossible.Notwithstanding his knowledge that neither party was permitted to have any further contact withthe child, plaintiff simply accepted defendant's assertions that he could continue home visits withthe child without seeking any proof from defendant or taking any action to verify that the agencyhad reversed its adamantly-held position on the matter. Inasmuch as "a party [that] has the meansto discover the true nature of the transaction by the exercise of ordinary intelligence, and fails tomake use of those means, . . . cannot claim justifiable reliance on [the] defendant'smisrepresentations," plaintiff cannot establish justifiable reliance, a necessary element of fraud,under the circumstances presented herein (Tanzman v La Pietra, 8 AD3d 706, 707 [2004]; see Van Kleeckv Hammond, 25 AD3d at 943; Shultis v Reichel-Shultis, 1 AD3d 876, 878 [2003]).
Moreover, with respect to the element of injury, "loss is computed by ascertaining the'difference between the value of the bargain which a plaintiff was induced by fraud to make andthe amount or value of the consideration exacted as the price of the bargain.' Damages are to becalculated to compensate plaintiffs for what they lost because of the fraud, not to compensatethem for what they might have gained" (Lama Holding Co. v Smith Barney, 88 NY2d at421 [citations omitted]). Here, plaintiff asserts that he released his claims against defendant inexchange for defendant's promise to adopt the child. Even assuming that plaintiff could establishthe value of his claims against defendant, calculation of plaintiff's loss would essentially requireus to determine the value to plaintiff of defendant's adoption of the child—a value that isboth " 'undeterminable and speculative' " (id. at 422). In short, plaintiff has notdemonstrated prima facie the elements of justifiable reliance and injury. Accordingly, the releasecannot be set aside as fraudulently obtained (see Morby v Di Siena Assoc., 291 AD2d at605-606; Shklovskiy v Khan, 273 AD2d at 372; K3 Equip. Corp. v Kintner, 233AD2d 556, 558 [1996]; see also Vermeer Owners v Guterman, 78 NY2d 1114, 1116[1991]).
Plaintiff's remaining arguments require little further discussion. His claim of mutual mistakefails in the face of the undisputed evidence that defendant was well aware of the foster careagency's decision continuing to forbid any further contact between defendant and the child. Anymistake by plaintiff regarding defendant's ability to adopt the child was therefore merelyunilateral and insufficient to set aside the release under the circumstances of this case (see Angel v Bank of Tokyo-Mitsubishi,Ltd., 39 AD3d 368, 369-370 [2007]; Carney v Carozza, 16 AD3d 867, 869 [2005]; Vermilyea vVermilyea, 224 AD2d 759, 761 [1996]). We similarly reject plaintiff's claims that the releaseshould be set aside on the grounds of undue influence and unconscionability; there is simply noevidence that plaintiff was "deprived of a meaningful choice respecting his decision to enter [intothat] agreement" (Goldberg v Moskowitz, 262 AD2d 56, 57 [1999]; cf. Gibli vKadosh, 279 AD2d 35, 40-41 [2000]). In any event, while plaintiff asserts that it isunconscionable to permit defendant to profit from plaintiff's desire to benefit the child, we agreewith Supreme Court that the transaction that plaintiff sought to effect—essentiallypaying defendant to adopt the child—is against public policy. "A child is not a chattel[*4]to be bought or sold" (Matter of Anonymous, 286App Div 161, 166 [1955], lv denied 286 App Div 968 [1955] [citations omitted]; seeMatter of Michelle W. v Forrest James P., 218 AD2d 175, 179 [1996]).
In the absence of any triable issues concerning the validity of the release, and given thelanguage therein barring all claims between the parties—which would include those in thisaction regarding the sale of plaintiff's interest in the property to defendant—Supreme Courtproperly granted defendant's motion for summary judgment dismissing the complaint andcancelling the notice of pendency (see Booth v 3669 Delaware, 92 NY2d 934, 935[1998]; Rubycz-Boyar vMondragon, 15 AD3d 811, 812-813 [2005], lv denied 5 NY3d 703 [2005];Tavoulareas v Bell, 292 AD2d 256, 257 [2002]; Matter of Jana-Rock Constr. v NewYork State Dept. of Transp., 267 AD2d 686, 687 [1999]). To the extent that they are notbarred by the release, plaintiff's remaining claims have been considered and found to be lackingin merit.
Peters, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Defendant further concedes thathe investigated the possibility of pursuing a relationship with or adopting the child after hisbreak-up with plaintiff, but abandoned his intent to do so when he was advised by his attorney inMarch 2005—after transfer of title to the subject property by plaintiff but prior to thee-mails sent to plaintiff regarding the release—that the foster care agency would not alterits decision prohibiting further contact between defendant and the child.