Dulko v. Reich

276 A.D.2d 521, 714 N.Y.S.2d 691, 2000 N.Y. App. Div. LEXIS 10132

Opinion

In an action, inter alia, to recover damages for breach of an oral contract, the plaintiff appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated July 20, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

It is well settled that nonmarital parties living together may contract for personal services so long as the agreement is express and the consideration therefor is not illicit sexual relations (see, Morone v Morone, 50 NY2d 481, 486; Paulus v Kutchler, 214 AD2d 608, 609). When a contract contains both lawful and unlawful objectives, however, “the illegality may be severed and the legal components enforced” to avoid unjust enrichment (McCall v Frampton, 81 AD2d 607, 608-609; see, Paulus v Kutchler, supra, at 609). Nevertheless, “[a]greements tending to dissolve a marriage or to facilitate adultery are closely scrutinized to determine whether the main objective of the agreement is aimed to produce that result” (McCall v Frampton, supra, at 608; see, Paulus v Kutchler, supra, at 609). The facts of this case do not establish unjust enrichment on the part of the defendant. Furthermore, the main object of the alleged contract was to facilitate adultery. Therefore, no cause of action existed with respect to the alleged contract.

The plaintiffs remaining contentions are without merit. Bracken, J. P., Thompson, S. Miller and Florio, JJ., concur.