The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 66-76; 79-80 Answering Papers 81-110 Reply 112-121; 143 Briefs: Plaintiff’s/Petitioner’s 111 Defendant’s/Respondent’s 77, 122 Decision/Order Following the jury’s verdict, and pursuant to CPLR §§4404, 4405 and 5001, the defendants each move this Court for an Order determining that plaintiff is not entitled to prejudgment interest on his claim for unjust enrichment, setting aside the jury’s verdict to the extent that it awarded damages that accrued outside the limitations period, thereby reducing judgment to be entered against the defendants, and/or setting aside the jury verdict to the extent that it is inconsistent with the charge given on the cause of action for unjust enrichment. Plaintiff opposes the defendants’ motions. A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only when the trial court determines that, upon the evidence presented, there is ‘no rational process by which the jury could find in favor of the nonmoving party’” (Stancati v. Gunzburg, 159 AD3d 1011, 1011 [2d Dept 2018], quoting Tapia v. Dattco, Inc., 32 AD3d 842, 844 [2d Dept 2006]). A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party [internal citation omitted]. In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant (Szczerbiak v. Pilat, 90 NY2d 553, 556 [1997]). “Moreover, a jury verdict should not be set aside pursuant to CPLR 4404 (a) as against the weight of the evidence unless the verdict could not have been reached on any fair interpretation of the evidence” (Stancati, supra at 1012). “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” (Jean-Louis v. City of New York, 86 AD3d 628, 628-629 [2d Dept 2011]). “It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses” (Exarhouleas v. Green 317 Madison, LLC, 46 AD3d 854, 855 [2d Dept 2007]). The Court finds no basis upon which to set aside the jury’s verdict rendered on November 19, 2021. The jury found that the defendants were each unjustly enriched as a result of the payments that the plaintiff made toward the construction of the house located at 377 Little Noyac Path, Water Mill, New York. The extensive trial testimony of the plaintiff and defendant Jill Rappaport established that they were involved in a romantic relationship for approximately ten years, from late 2000, and were engaged from 2002 to 2010. Plaintiff testified that the defendant Jill Rappaport would put up her Water Mill land, and he would pay for the construction of the house on that land, and when the house was completed, their respective percentage interests in the property would be determined based upon their respective financial contributions. That the defendants testified that they never discussed that they would have to repay plaintiff for his contributions in the event he and Jill’s relationship broke up, plus plaintiff’s own testimony that he did not expect Jill to reimburse him for expenses related to the construction is not inconsistent with the above-described agreement that was repeatedly testified to by the plaintiff during his more than two full days on the witness stand. Plaintiff also testified to maintaining detailed records of his expenditures for the house for the purpose of calculating his share of the property upon the completion of the house. Plaintiff’s exhibits, numbering in the hundreds and including his expenditure records, were admitted into evidence at trial and considered by the jury during the course of its deliberations. At trial, it was further adduced that, in January 2010, after plaintiff had again broached the topic of reducing their agreement to writing, Jill Rappaport advised the plaintiff that she viewed the house as recompense for their ten-year relationship, characterizing it as “palimony.” The relationship between plaintiff and defendant Jill Rappaport ended in June 2010, and plaintiff filed this action on February 15, 2011 (New York County). While the jury did not find that the defendants necessarily breached an oral agreement with the plaintiff, they heard and saw the witnesses testify, considered the numerous exhibits offered into evidence by plaintiff and the defendants, and determined that the defendants were unjustly enriched by plaintiff’s payments for construction of the subject house. In this Court’s view, the jury’s determination is not contrary to the weight of the evidence. The Court’s entire charge pertaining to whether the defendants were unjustly enriched appears on the record as follows, as opposed to the single sentence cited by defendants: Unjust enrichment occurs when one person has obtained a benefit from another person under such circumstances that in fairness and good conscience, the benefit should not be retained. In those circumstances the law requires the person to repay, return to or compensate the other person. The fact that the defendants received a benefit is itself insufficient. The plaintiff must show that the enrichment was unjust. Plaintiff has the burden of proving that his payments toward constructing the house unjustly benefitted the defendants. If you decide that the plaintiff voluntarily made the payments towards the construction of the house, you will find for the defendants. If you decide that the plaintiff did not have a reasonable expectation of being repaid for the expenditures for the construction of the house, then you will find for the defendants. If however you decide that it would be unjust for the defendants to retain the house on the property, based on the plaintiff’s contributions to the property, you will find that the defendants are liable to the plaintiff, and you will go on to consider the value of the benefit that the defendants or either defendant obtained. Based upon a reading of the entire charge as related to the defendants’ liability for that cause of action, the jury’s verdict is not inconsistent with the charge. There is more than a fair interpretation of the evidence adduced at trial supporting the verdict reached, specifically as relates to the charge that, “[i]f however you decide that it would be unjust for the defendants to retain the house on the property, based on the plaintiff’s contributions to the property, you will find that the defendants are liable to the plaintiff, and you will go on to consider the value of the benefit that the defendants or either defendant obtained.” Defendants’ additional claim that the verdict should be reduced pursuant to either a six-year or three-year statute of limitations is unavailing. “Under New York law, there is no identified statute of limitations period within which to bring a claim for unjust enrichment, but where [] the unjust enrichment and breach of contract claims are based upon the same facts and pleaded in the alternative, a six-year statute of limitations applies” (Maya NY, LLC v. Hagler, 106 AD3d 583, 585 [1st Dept 2013]). Even if this Court were to view the applicable statute of limitations as being three years based upon plaintiff’s request for money damages (Siegler v. Lippe, 189 AD3d 903, 906 [2d Dept 2020]), this action was timely commenced. “The statute of limitations on such a cause of action begins to run on the occurrence of the wrongful act giving rise to the duty of restitution” (Siegler, supra at 906; Kaufman v. Cohen, 307 AD2d 113, 127 [1st Dept 2003]; Ingrami v. Rovner, 45 AD3d 806 [2d Dept 2007]). Here, the statute of limitations began to run in January 2010, when, according to plaintiff’s testimony, which the jury apparently credited, defendant Jill Rappaport completely repudiated their oral agreement by advising plaintiff that she “deserve[d] [the subject house] for palimony” in view of their decade-long romantic relationship. Corroborating this event is the fact that the relationship “broke up” entirely approximately six months later, in June 2010, followed shortly thereafter by the filing of this action on February 15, 2011. Accordingly, whether viewed against a three-year or six-year limitations period, the unjust enrichment cause of action is timely brought.1 CPLR §5001 (a) provides that “[i]nterest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.” “The theory of unjust enrichment lies as a quasi-contract claim. It is an obligation the law creates in the absence of any agreement” (Goldman v. Metropolitan Life Insurance Company, 5 NY3d 561, 572 [2005]). Here, the jury determined that there was no oral contract between the parties, thereby rendering this matter in quasi-contract. “[A] plaintiff who succeeds on a quasi-contract or implied-contract claim is entitled to pre-judgment interest under C.P.L.R. 5001(a)” Stillman v. InService Am., Inc., 455 Fed Appx 48, 51 [2d Cir 2012]). The Stillman Court also considered and rejected the discretionary nature of prejudgment interest on a claim of the foregoing nature when it stated, “[a]lthough defendants direct us to a recent Third Department case stating, without discussion, that pre-judgment interest on a quantum meruit claim is discretionary, see Precision Founds. v. Ives, 4 A.D.3d 589, 593, 772 N.Y.S.2d 116, 120 (3d Dep’t 2004), we are not persuaded that the New York Court of Appeals would reach that same conclusion” (Id. at 51; see also Eighteen Holding Corp. v. Drizin, 268 AD2d 371 [1st Dept 2000]; Perella Weinberg Partners LP v. Specialized Loan Servicing LLC, 40 Misc3d 1210[A], 1210 [Sup Ct New York County 2013] [Precision Foundations is an aberration because it not only deviates from well settled law in the other three Appellate Divisions, it also contradicts the Third Department's own established precedent]). As detailed by the Second Judicial Department, “[t]here are two kinds of implied contracts, namely (1) those that are implied in fact, as where the actions of the parties and not their words indicate that they intended to form an actual contract and (2) those that are implied in law, also called quasi contracts, which the law implies from the circumstances, even though the parties never intended to form an actual contract, so as to prevent an unjust enrichment (see 22 NY Jur 2d, Contracts, §446; 50 NY Jur, Restitution and Implied Contracts, §§1-3). There were two remedies in cases of such implied in law contracts, namely an action at law for assumpsit or an action in equity for unjust enrichment (50 NY Jur, Restitution and Implied Contracts, §§2-3). Because of the merger of law and equity the fact that there once were two remedies for the same relief is now relatively unimportant. However, CPLR 5001 says that in actions based on “contract” the court shall award prejudgment interest, but where the action is equitable in nature it may or may not award such interest in its discretion. It appears however that the trend has been, even in equity actions based on contract, to award prejudgment interest as of right (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5001.06, pp 50-21, 50-22)” (citations in original)(emphasis added) (In re Estate of Kummer, 93 AD2d 135, 182-183 [2d Dept 1983]). Defendants’ reliance upon Ostad v. Nehmadi (2019 NY Slip Op 32250 [U] [Sup Ct New York County]) is misplaced. The court in that matter noted the “unusual circumstances of [that] case,” which included a significant five-year delay between the time that plaintiff gave cash to the defendant and the time that the plaintiff demanded an interest in the property, and then waited two years to commence that action. The court also noted that, “the determination as to whether the cash transaction occurred turned entirely on the resolution of a bona fide credibility dispute.” Here, approximately six months after defendant Jill Rappaport repudiated plaintiff’s request to put their arrangement in writing, the relationship terminated, and approximately eight months later, the plaintiff commenced his action. Moreover, the plaintiff’s expenditures for construction of the house were not genuinely disputed by the defendants, and the amount expended by plaintiff did not turn “entirely on the resolution of a bona fide credibility dispute;” rather, there was abundant documentary proof of the expenditures. Accordingly, the plaintiff is entitled to prejudgment interest both as a matter of right (CPLR §5001) and as a matter of the discretion of this Court (cf. Ostad, supra). The Court also finds unavailing and unsupported the defendants’ claim that plaintiff delayed the resolution of this action. Not only did the parties to this action vigorously defend their respective positions through motion practice, much of which delayed discovery due to the nature of the respective motions, and potential appeals, a number of court-ordered settlement conferences were held, and there was also a coronavirus pandemic delay of more than one year involved. Defendants also fail to cite any authority for the proposition that delay precludes an award of prejudgment interest. The Court recognizes that “interest is not a penalty. Rather, it is simply the cost of having the use of another person’s money for a specified period (see, Siegel, NY Prac §411, at 623 [2d ed]). It is intended to indemnify successful plaintiffs ‘for the nonpayment of what is due to them’ (Trimboli v. Scarpaci Funeral Home, supra, at 389)” (citations in original) (Love v. State, 78 NY2d 540, 544 [1991]). Prejudgment interest is both mandatory and appropriate in this matter to compensate the plaintiff for the defendants’ unjust use of plaintiff’s funds since 2002, funds that could have been accessed and/or invested but for their use in constructing the subject house. The jury in this matter unanimously found that the plaintiff paid $2,572,162.09 toward construction of the subject house between the years 2002 and 2010. Clearly, the jury did not find that the defendants were allowed any offsets, and defendant Jill Rappaport’s counterclaims seeking relief for rent never paid by plaintiff for use of the house was previously dismissed (Asher, J.). In fact, the defendants concede that the jury awarded damages based on PX 1695 (total payments by plaintiff for the subject house) spanning from 2002 through 2010, with the total damages for each of those years listed on the verdict sheet. Defendants do not challenge the manner in which the interest should be calculated, but argue as discussed that the total amount of the jury’s verdict should be reduced based on statute of limitations grounds, or that the verdict should be set aside entirely. Having denied herein those grounds for reduction or the setting aside of the jury’s verdict, the Court determines that prejudgment interest shall be calculated “as the damages arise, for example ‘on the ending date of each year’ that they are incurred” (Del Carmen Onrubia de Beeck v. Costa, 39 Misc 3d 347, 366 [Sup Ct New York County 2013], citing Wolf v. Rand, 258 AD2d 401, 404 [1st Dept 1999]). Accordingly, this Court awards prejudgment interest at the statutory rate as outlined in NYSCEF Doc. No. 82, annexed to plaintiff’s opposition as Exhibit A, which amounts to a total of $3,689,956.08. Any other relief not specifically granted is hereby denied. Settle judgment on notice in compliance with 22 NYCRR §202.48. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [X] NON-FINAL DISPOSITION [] Dated: March 4, 2022
