Plaintiff commenced this action seeking the partition of residential property (“Property”) held jointly by her and Defendant Robert A. Fleck (“Defendant”). The Property was owned solely by Defendant until September 30, 2016, when he deeded the property to himself and Plaintiff as joint tenants. It is Defendant’s contention that the transfer was a conditional gift done solely in contemplation of marriage, as was his gift to Plaintiff of a.70 carat diamond ring in February, 2016. Defendant counterclaims for the return of the ring, and for recision of the conveyance to Plaintiff. Defendant moves for summary judgment dismissing the complaint, and for judgment on his counterclaims.I.In support of the motion, Defendant submitted his own affidavit, stating that he purchased the property himself in 2013, prior to meeting Plaintiff. That meeting did not occur until approximately a year later when Plaintiff, at the time a resident of Florida, was visiting New York, and both were at a gathering at a friend’s house in Avon. Defendant purchased the ring in January 2016 at a jewelry store in Geneseo, and gave it to Plaintiff as an engagement ring in February, “as a symbol of and in sole consideration for, the contemplated marriage between us” (Affidavit of Robert A. Fleck, sworn to February 7, 2018 ["Defendant's Affidavit"], 17). Plaintiff continued to reside in Florida after the couple’s engagement until April 2016, when she moved in to the Property with Defendant. Upon the conveyance to Plaintiff of her ½ interest in the Property in September, 2016, the couple executed a consolidated mortgage on the premises; prior to that point, Plaintiff had made no payments on the property. In November, 2016, the couple took out a HELOC on the Property, to pay for an addition. Defendant avers that “in authorizing the issuance of a deed to Plaintiff as a joint tenant with right of survivorship, [he] relied upon a confidential relationship then existing between us as persons then engaged to be married” (Defendant’s Affidavit, 43). He further avers that he “would not have authorized he issuance of the said deed…except for the fact that, at the time said deed was issued, we were engaged to be married” (id. at 44). After the couple ended their engagement in September 2017, Defendant demanded that Plaintiff give back the ring and deed the property back to him, and she refused.In opposition to the motion, Plaintiff submitted her own affidavit, in which she agrees that she had met Defendant at a party at a mutual friend’s house in Avon in late 2014, and afterwards they embarked on a long-distance dating relationship. She further agrees that Defendant gave her the diamond ring in February 2016. According to Plaintiff, however, the ring was given “to celebrate our romantic and intimate relationship. At the time of the delivery of the gift of said ring, he did not propose marriage and he did not state or imply that the gift of the ring was conditional, qualified or temporary” (Affidavit of Cassondra L. Luce, sworn to March 3, 2017 ["Plaintiff's Affidavit"], 9). Furthermore, according to Plaintiff, ” [i]m accepting the ring [she] did not make any promises or commitment to marry the Defendant. There was and never has been any agreement between the defendant and [her] to get married” (id. at 10). According to Plaintiff, with the couple’s mutual experiences with prior marriages and divorce, neither wanted to marry again. After the ring was given, the couple discussed living together, and they agreed that whoever could obtain a job transfer first would be the one to move. Plaintiff, a postal worker, was able to obtain a transfer to Victor, but was forced to take a pay cut of just over $13,000 per year, lose contributions to her pension and forfeit seniority. After the transfer, Plaintiff sold her home in Florida, and moved in with Defendant, and the couple agreed to share expenses, including “utilities, insurance, real property taxes, home maintenance, maintenance of automobiles, animal care, travel and vacations” (id. at 14). The couple also began looking for a new, bigger, home that they planned to purchase together. When they were unable to find one, however, they agreed to remain in Defendant’s home, expand it, and share ownership of the Property. Accordingly, Defendant quitclaimed her a ½ interest in the Property, and the two consolidated the mortgage, and took out the HELOC to pay for an addition. According to Plaintiff, she offered to contribute towards the expansion, but Defendant “rejected that offer and stated that [she] had sacrificed enough” (id. at 17). A year later, on October 11, 2017, Defendant called her “and announced that he was terminating our relationship and that he wanted [her] to move out” (id. at 25). She was working at the time, and pulled her postal vehicle over to the side of the road, where she sat for two hours. She was “distraught and angry,” and took the ring off and threw it out of the vehicle id. at 28). While in the time the two were together, they had “discussed it several times,” they never agreed to marry (id. at 26). The two continued to live together, and discussed selling the house, but then Defendant decided he wanted to keep the house and buy Plaintiff out, but they could not agree on a price. In January 2018, Defendant moved out of the house; Plaintiff continues to reside there.In reply, Defendant submitted affidavits from two women who are mutual friends of the couple. Attached as exhibits to one of the affidavits are screenshots from Plaintiff’s Facebook page. In one of these, Plaintiff posted on February 12, 2016 that “Robert Fleck proposed to me with my Grandparents and Aunt Barbara and Uncle John and I said yes.” Accompanying that post is a picture of the ring. In another post one week later, Plaintiff says “[w]ell as you all must know by now Robert Fleck and I are engaged. I have put in for a transfer to New York,” and goes on to offer her home for sale. Both women attest to the authenticity of these Facebook posts, and both say that Plaintiff told them she and Defendant were engaged and identified the ring as an engagement ring.II.As the proponent of the motion for summary judgment, Defendant “bears the initial burden of establishing entitlement to judgment as a matter of law by submitting evidence sufficient to eliminate any material issues of fact” (Rice v. City of Buffalo, 145 AD3d 1503, 1504-1505 [4th Dept. 2016]). “This burden is a heavy one and on a motion for summary judgment, ‘facts must be viewed in the light most favorable to the non-moving party’ ” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013]). Moreover, “every available inference must be drawn in the [non-moving party's] favor” (De Lourdes Torres v. Jones, 26 NY3d 742, 763 [2016]). However, viewing the evidence in the light most favorable to the non-moving party does not mean that the Court must accept “feigned issues of fact where none truly exists” (Mann v. Autozone Northeast, Inc., 148 AD3d 1646 [4th Dept 2017] [internal quotation marks omitted]). Indeed, while it is a truism that “[t]he court may not weigh the credibility of the affiants on a motion for summary judgment,” this general rule is subject to a crucial caveat-i.e. “unless it clearly appears that the issues are not genuine, but feigned” (Glick & Dolleck v. Tri — Pac Export Corp., 22 NY2d 439, 441 [1968]).Here, inasmuch as Defendant contends that both gifts at issue-the ring and the Property-were conditional, the most crucial question is whether Plaintiff and Defendant were engaged at the time the gifts were made. Plaintiff’s Facebook posts constitute documentary evidence of Plaintiff’s admissions to being given the ring as an engagement ring, upon her acceptance of Defendant’s proposal of marriage. Indeed, they are not just admissions, but proclamations to the world of her engagement. Both non-party witnesses also confirm that Plaintiff admitted her engagement to them as well. The statements in Plaintiff’s Affidavit contradicting her own admissions, as reflected in that documentary evidence, appear to the Court to be nothing more than attempts to raise a feigned issue of fact where none truly exists (see e.g. Ricci v. Lo, 95 AD3d 859 [2d Dept 2012] [plaintiff's affidavit disregarded where it "contradicted his admissions immediately following the accident, as reflected in a police accident report and an affidavit of a nonparty witness"]; Park v. Sanchez, 155 AD3d 970 [2d Dept 2017] ["The plaintiff's affidavit, which contradicted admissions he made in the certified motor vehicle report, was insufficient to defeat the defendants' motion for summary judgment because it merely raised what appear to be feigned issues of fact"]; Conolly v. Thuillez, 2005 NY Slip Op. 50003(U), 2005 WL 39080 [Sup Ct Albany Co 2005] ["in light of plaintiff's statements and actions to the effect that he resigned from the law firm…as well as the other documentary evidence supporting his resignation, plaintiff's assertion in opposition to defendants' motion that he did not resign gives the appearance of a 'feigned factual issue' "]). “Where, as here, documentary evidence (CPLR 4528) conclusively establishes that an issue of fact is ‘not genuine, but feigned’ it is appropriate to summarily resolve the matter” (Leo v. Mt. St. Michael Academy, 272 AD2d 145 [1st Dept 2000] [internal citation omitted]).Thus, the Court holds that the diamond ring was given as an engagement ring, in contemplation of the parties’ later marriage. This conclusion, while an important one, does not, itself, resolve the matter, however. There are additional legal and factual issues regarding both gifts that must be addressed.III.Turning first to the ring, there is a significant choice of law issue that must be resolved in order to determine who is rightly entitled to it, or at least to its value. In New York, it is clear that an engagement ring is a conditional gift, and where that condition-i.e. the parties’ contemplated marriage,-is not fulfilled, the gift is revoked and the ring must be returned (see Marshall v. Cassano, 2001 NY Slip Op. 40320(U), 2001 WL 1537663 [Sup Ct Nassau Co 2001], quoting Lowe v. Quinn, 27 NY2d 397 [1971] ["It is well settled that an engagement ring 'is in the nature of a pledge for the contract of marriage' and, upon the breaking of the engagement, the recipient is required, 'upon demand, to return the ring on the theory that it constituted a conditional gift' "; see also Civil Rights Law §80 --- b). Moreover, "[w]hether [Defendant] was at fault for the breakup of the engagement is wholly irrelevant to his right to recover possession of an engagement ring that he…gave to defendant in contemplation of marriage” (Gagliardo v. Clemente, 180 AD2d 551 [1st Dept 1992]). Here, however, the ring was given in Florida, and the rule there appears to be that, if the donee of an engagement ring breaks off the engagement without legal justification, the donor is entitled to retain the ring (see Gill v. Shively, 320 So.2d 415 [Fla.Dist.Ct.App. 4th Dist.1975]; Maiorana v. Rojas, 3 Misc 3d 1107(A), 2004 NY Slip Op. 50481(U) [Civ Ct Kings County 2004])1. Defendant’s motion papers do not address the issue of fault for the breaking of the engagement and, in any event, Plaintiff’s Affidavit is more than sufficient to raise an issue of fact. Thus, Defendant is entitled to summary judgment on his cause of action for return of the ring-or, in the alternative, recovery of its value-only if the law of New York applies. Surprisingly, the Court has been unable to find a single case from any jurisdiction in this Country that is even remotely on point2. However, applying modern conflict of law rules, the Court holds that New York law applies.Plaintiff contends, without citation, that Florida law must apply because Defendant gave the ring to her there. It does appear that the original common law rule supported this position. The First Restatement of Conflict of Laws states that “[t]he nature and characteristics of an interest created by a conveyance of an interest in a chattel is determined by the law of the place where the chattel is at the time of the conveyance” (Restatement [First] of Conflict of Laws §258 [1934]; see also Restatement [First] of Conflict of Laws §§255, 256, 257 [law of the place where the chattel was located at the time of conveyance also controlled the questions of capacity, formal validity, and substantial validity of the gift]). Under this rule, Plaintiff would appear to be correct that the law of Florida, where the chattel was conveyed, would be controlling. However, this is not the modern rule. While the situs of the transaction is still an important factor in resolving the conflict of law question, under modern conflict analysis it is not the sole consideration. The Restatement now states the modern rule as:“(1) The validity and effect of a conveyance of an interest in a chattel as between the parties to the conveyance are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the parties, the chattel and the conveyance under the principles stated in §6.(2) In the absence of an effective choice of law by the parties, greater weight will usually be given to the location of the chattel, or group of chattels, at the time of the conveyance than to any other contact in determining the state of the applicable law” (Restatement [Second] of Conflict of Laws §244 [1971] [emphasis supplied]).The Court of Appeals has expressly adopted the “most significant relationship” approach to conflict of law cases, beginning with Babcock v. Jackson (12 NY2d 473 [1963] [there referred to as the "most significant contacts" test]), and continuing to its most recent decision in Matter of Liquidation of Midland Ins. Co. (16 NY3d 536, 544 [2011]). In both cases (see Babcock, 12 NY2d at 479 [citing the then draft Restatement Second]; Midland Ins. Co. 16 NY3d at 544), and several cases in between (see e.g. Indosuez International Finance B.V. v. National Reserve Bank, 98 NY2d 238, 245 [2002]; Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 NY2d 309, 318 [1994]), the Court has expressly referred to and apparently adopted the Restatement, Second positions, at least with respect to substantive law issues3. While it does not appear that the Court of Appeals has specifically decided the issue in the context of a conveyance of personal property, it seems clear from this consistent line of precedent that the Court would adopt the Restatement rule. Indeed, in Indosuez International Ins. Co. (98 NY2d at 245), the court stated flat out that “New York choice of law principles require a court to apply the law of the state with the most significant relationship with the particular issue in conflict.”This, then, leaves the Court with the task of applying this amorphous “most significant relationship” test in the context of an engagement arising out of a long distance, cross-country relationship. The fact that the ring was given to Plaintiff in Florida is entitled to significant weight; the Court is mindful of the Restatement proviso that “greater weight will usually be given to the location of the chattel…at the time of the conveyance” (Restatement [Second] of Conflict of Laws §244 [2]). However, this is not the only factor; the Court must determine which state has the “most significant relationship to the parties [and] the chattel” as well as “ the conveyance” (Restatement [Second] of Conflict of Laws §244 [1] [emphasis supplied]). With respect to the parties, clearly Defendant’s contacts are with New York. Plaintiff is more problematic. While she was a resident of Florida at the time of the engagement, it is clear that the couple were already making plans for her to move to New York. Indeed, within a week of the engagement, she was looking for a buyer for her Florida home. And in fact, less than two months later, she did, in fact, move to New York, where she remains to this day, and where it was contemplated that she would live after the parties’ marriage. Accordingly, the Court finds that Defendant, too, has a stronger relationship to New York than Florida. With respect to the chattel-i.e. the ring itself-while it was given in Florida, it was purchased here in New York, and worn by Plaintiff for the bulk of her engagement here in this state as well. Accordingly, New York has a more significant relationship to the chattel as well. Finally, there is an additional factor that tilts the scale in favor of New York. The fundamental issue here is what public policy should apply to the breaking of an engagement, for it is that engagement that the ring symbolizes. And, again, the great bulk of the couple’s engagement was spent together here in New York. This points to New York having the more significant relationship as well, since New York policy as to the breaking of engagements should apply to engagements that are spent, for the most part, here in New York.The Court thus finds that New York law should apply to the question of who retains the ring upon the end of the parties’ engagement. Because fault is not an issue in New York, and an engagement ring is clearly a conditional gift that reverts to the grantor upon the failure of the condition-i.e. the breaking of the engagement-Defendant is entitled to have the ring returned, or, if the ring can not be returned, to be reimbursed for its value. Defendant submitted proof establishing that the ring is worth $3,000, and Plaintiff failed to raise an issue of fact in that regard. Accordingly, Plaintiff is ordered to return the ring forthwith if she has it, and, if she does not, Defendant may submit a judgment for $3,000 and the third and fourth counterclaims are severed from the remainder of this action.IV.Turning, finally, to the issue of whether the house also constitutes a conditional gift, ” [w]hether in a given instance the gift is conditional or absolute is an ordinary question of intention to be determined by an express declaration in the making of the gift or from the circumstances” (Lipton v. Lipton, 134 Misc 2d 1076, 1077 [Sup Ct New York County 1986]). It is fairly simple to resolve this factual issue of intention in the case of the ring, since the circumstance of its being given as an engagement ring-which the Court has determined Defendant’s proof established, and Plaintiff’s proof did not rebut-determines the matter conclusively (c.f. Northern Trust, NA v. Delley, 60 AD3d 1345 [4th Dept 2009] [issue of fact whether ring was given as an engagement ring or a birthday present]). The same can not be said, however, with respect to the deeding over of the Property. In order for the Property to be deemed a conditional gift, Defendant must establish that “the sole consideration for the transfer of the…real property was a contemplated marriage which has not occurred” (Civil Rights Law §80 — b; see Northern Trust, NA, 60 AD3d at 1346). In Northern Trust, as here, after his engagement was ended, the grantor sought the return of a ½ interest in property that he had purportedly deeded over to his betrothed as an engagement gift. He submitted proof that the grant was made solely in contemplation of the parties’ marriage. However, there was also proof submitted “establishing that…her name was added to the deed because she was selling her residence and leaving her employment in contemplation of the marriage” (id.). Here, even assuming, arguendo, that Defendant established that deeding over ½ of his interest in the Property to Plaintiff was done solely in consideration of marriage, Defendant’s proof raises an issue of fact. Similarly to Northern Trust, Plaintiff here sold her home in Florida, and transferred her employment here to New York, taking a pay cut in doing so. In addition, she became obligated as a mortgagor on the property. Moreover, the Property was not transferred at the time of the couple’s engagement, but only when Plaintiff became obligated under the mortgage. Thus, there is an issue of fact as to whether the transfer of the Property to Plaintiff was made solely in contemplation of marriage, and the motion to dismiss the Complaint, and for judgment on the first two counterclaims, must be DENIED.Dated: April 18, 2018Geneseo, New York
