Rosenzweig v. Givens

62 A.D.3d 1 (N.Y. 2009)

Background: Mortgagee sued to foreclose on two mortgages secured by condominium apartment. Mortgagor, who had been involved in romantic relationship with mortgagee at time of mortgage loans and later had entered into marriage with mortgagee while unaware that mortgagee was already married, asserted affirmative defenses of fraud and bad faith, and also asserted counterclaims for fraudulent inducement to marry and for rescission. The Supreme Court, New York County, Barbara R. Kapnick, J., entered summary judgment for mortgagee on foreclosure claim, and dismissed mortgagor's affirmative defenses and counterclaims. Mortgagor appealed.

Holdings: The Supreme Court, Appellate Division, Moskowitz, J., held that: (1) fact questions existed as to whether fiduciary relationship had arisen between mortgagee and mortgagor; (2) mortgagor had cause of action for fraudulent inducement to marriage; and (3) mortgagee did not waive right to foreclose by not demanding mortgage payments.

Affirmed as modified.

MOSKOWITZ, J.

Given the highly unusual circumstances of this case, we do not believe that the motion court should have granted summary judgment to plaintiff at this early juncture, prior to discovery. Plaintiff Joseph Rosenzweig commenced this action to foreclose on two mortgages he issued to defendant Radiah Givens on May 10, 2002, in connection with the balance due on defendant's alleged purchase of a condominium apartment. The apartment secured the loans. It is undisputed that defendant herself has never made a mortgage payment.

However, these were no ordinary, arms-length mortgages. At the time plaintiff, an attorney, issued the mortgages, he was involved in a romantic relationship with defendant, a student 19 years younger. Unlike most mortgage transactions, it was plaintiff who paid the 10% down payment on the property. After the closing, plaintiff also paid the carrying costs on the apartment and most household expenses.

Plaintiff had his long-term friend and colleague, attorney Thomas Gazianis, represent defendant at the apartment's closing and both plaintiff and defendant in connection with the loans. At or directly after the May 10, 2002 closing, the parties signed a letter, as “accepted and agreed to,” acknowledging Gazianis's joint representation in connection with plaintiff's loans to defendant, and of defendant in connection with her purchase of the apartment. Gazianis noted in the letter that he had a prior social and working relationship with plaintiff and recommended that both parties obtain separate counsel as a potential conflict existed. The letter also described the transaction between the parties as two mortgage loans being made to defendant “by Joseph I. Rosenzweig, in the combined amount of $285,300, and in connection with the mortgage and Note [defendant] has given to Mr. Rosenzweig therewith.”

Unbeknownst to defendant at the time, plaintiff was married with children.

Almost two years later, on or about April 13, 2004, the parties married in Jamaica. Plaintiff was still married to another woman. The Marriage Register reflects that plaintiff identified himself as a bachelor and attorney. On April 19, 2005, plaintiff forged defendant's signature on a loan application for $150,000 that the apartment was to secure.

Plaintiff did not record the second mortgage until July 7, 2005, over three years after the closing. Defendant contends that plaintiff did this after she had found out that he had forged her signature on the loan application and after plaintiff's bigamous marriage became known to plaintiff's first wife. Plaintiff contends that he did not record the second mortgage until three years later to avoid certain taxes.

Eventually, defendant discovered that plaintiff was already married. In February 2007, the parties' bigamous marriage was annulled.

Defendant contends that the apartment was a gift to her from plaintiff. She contends that she was a student at the time of the transaction and that plaintiff knew she could not make the monthly payments. In support, defendant points out that the plaintiff paid the monthly expenses on the apartment including maintenance, household and related charges. Defendant also notes that plaintiff never asked her for mortgage payments until after she discovered his duplicity. Defendant explains that plaintiff induced her to sign the mortgage documents by claiming her signature was necessary to effectuate the gift. She says she never questioned this because he was a lawyer and she loved and trusted him. She claims she never would have signed had she known these were mortgage documents because she could not afford to make the monthly payments.

In her answer, defendant asserted affirmative defenses sounding in fraud and bad faith and two counterclaims. The first counterclaim is for fraudulent inducement to marry. The second counterclaim relates to plaintiff's fraud in inducing her to enter into the mortgage agreements and his forgery of her name on a bank loan.

Plaintiff argues that the mortgage terms are clear and unambiguous and cannot be reasonably read to indicate anything other than a loan. However, “[a]greements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith” ( Christian v. Christian, 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ). Thus, courts exercise strict surveillance of agreements between spouses ( see e.g. Levine v. Levine, 56 N.Y.2d 42, 47, 451 N.Y.S.2d 26, 436 N.E.2d 476 [1982]; Barchella v. Barchella, 44 A.D.3d 696, 697, 844 N.Y.S.2d 78 [2007] ). Although the parties were not married on the day defendant signed the mortgage agreements, their relationship, as their eventual marriage demonstrates, was sufficiently analogous to at least raise a question as to whether or not a fiduciary relationship existed to raise the level of scrutiny of this transaction to one of strict surveillance ( see Matter of Greiff, 92 N.Y.2d 341, 347, 680 N.Y.S.2d 894, 703 N.E.2d 752 [1998] [noting “the unique character of the inchoate bond between prospective spouses” and that “these relationships are almost universally beyond the pale of ordinary commercial transactions,” court required “exceptional scrutiny” in evaluating prenuptial agreement]; Brody v. Brody, 20 Misc.3d 350, 356–357, 862 N.Y.S.2d 738 [Sup. Ct., Nassau County 2008] [applying standard to prenuptial agreement] ). Thus, defendant has detailed circumstances that raise an issue of fact about whether a fiduciary relationship existed between the parties, including their romantic involvement that resulted in a marriage (albeit a sham one because plaintiff was a bigamist), their age difference and that plaintiff was a lawyer.

Reasoning that these were mortgage documents, the motion court, without discovery, dismissed defendant's claims that she was fraudulently induced to sign them on the ground that her allegations did not rise to the level of fraud. However, this analysis fails to take into account the highly unusual circumstances of this case and fails to apply the level of scrutiny appropriate considering the relationship between these parties. Given the surrounding circumstances, especially the nature of the parties' relationship, defendant has sufficiently raised an issue of fact about whether plaintiff tricked her into signing the mortgage documents by claiming they were merely a formality to effectuate his gift to her. That defendant did not have her own lawyer, but relied on a friend of plaintiff, further raises questions about this transaction ( see Bartlett v. Bartlett, 84 A.D.2d 800, 444 N.Y.S.2d 157 [1981] [separation agreement was product of “overreaching” where one attorney represented both husband and wife but acted “essentially as the defendant husband's attorney”] ). At the very least, the motion court should not have granted summary judgment without affording defendant discovery.

The dissent argues that defendant fully understood the nature of the transaction because she signed a letter, dated May 10, 2002, from plaintiff's attorney/friend that informed her about the nature of the transaction and advised her to obtain separate counsel. However, as cases have repeatedly held, agreements between spouses or prospective spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost good faith ( see Christian v. Christian, 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977]; see also Matter of Greiff, 92 N.Y.2d 341, 347, 680 N.Y.S.2d 894, 703 N.E.2d 752 [1998]; Colello v. Colello, 9 A.D.3d 855, 859, 780 N.Y.S.2d 450 [2004] ). Given the relationship here, and the surrounding circumstances, it was inappropriate to grant relief to the plaintiff without closely scrutinizing the agreement, including further development of the record. Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 862 N.Y.S.2d 311, 892 N.E.2d 375 (2008) is not to the contrary. In that case, the Court of Appeals held that there was no fiduciary relationship between a congregant and the rabbi of the synagogue. The plaintiff had claimed that the rabbi had induced her into a 3 1/2 year intimate relationship by suggesting that his “therapy” would help her find a husband. The Court held that there was no fiduciary relationship between the rabbi and the congregant because no cause of action could be maintained “for an extended voluntary sexual affair between consenting adults” ( id. at 22, 862 N.Y.S.2d 311, 892 N.E.2d 375). Here, by contrast, the parties held themselves out as husband and wife and defendant at least believed they were husband and wife.

The record also contains indications that plaintiff did intend the apartment as a gift. For example, plaintiff did not demand payment from defendant for three years and then not until their relationship was disintegrating because defendant had discovered that plaintiff had forged her signature on a loan application and had another wife. While recognizing that the mortgage documents contain non-waiver clauses, the timing of plaintiff's demand for payment is suspicious. Moreover, it would be unusual for someone who intended to make a loan to also provide the down payment, pay the maintenance and pay most other household expenses. Because of the relationship between the parties, plaintiff presumably would have known that defendant could not afford the mortgages. Given that the marriage was a sham and that plaintiff forged defendant's signature on a loan application for $150,000, it is plausible that plaintiff did trick defendant into thinking he was gifting her the apartment in an elaborate plot to obtain loan proceeds under her name.

It was also error to dismiss defendant's first counterclaim for deceit in the inducement to enter a void marriage. Accepting as true defendant's allegations that plaintiff falsely misrepresented himself to be single, thereby inducing her to enter into a bigamous marriage, change her status and sustain damages, defendant has stated a cause of action (see Tuck v. Tuck, 14 N.Y.2d 341, 344, 251 N.Y.S.2d 653, 200 N.E.2d 554 [1964] ).

However, the court was correct to dismiss defendant's second affirmative defense that plaintiff waived his claims under the mortgages because he did not demand payment for over a three-year period. This is because the mortgage documents contain unambiguous non-waiver clauses that courts uniformly enforce ( see e.g. Awards.com v. Kinko's, Inc. 42 A.D.3d 178, 188, 834 N.Y.S.2d 147, [2007] lv. dismissed, 9 N.Y.3d 1025, 852 N.Y.S.2d 9, 881 N.E.2d 1195 [2008] ). Nevertheless, as explained above, an issue of fact remains as to whether the mortgages are enforceable in the first instance. We have considered appellants' remaining arguments and find them unavailing.

Accordingly, the order of the Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 4, 2007, which granted plaintiff summary judgment on his claim to foreclose on certain mortgages, dismissed defendant's first, second and third affirmative defenses and two counterclaims, and struck defendant's claim for punitive damages, should be modified, on the law, to deny plaintiff's motion for summary judgment on his foreclosure claim, reinstate the first and second counterclaims and reinstate the first affirmative defense, and otherwise affirmed, without costs. Order, Supreme Court, New York County, entered October 4, 2007, modified, on the law, to deny plaintiff's motion for summary judgment on his foreclosure claim, reinstate the first and second counterclaims and reinstate the first affirmative defense, and otherwise affirmed, without costs.
All concur except FRIEDMAN, J. who dissents in part in an Opinion.