Rubenstein v. Rosenthal

140 A.D.2d 156, 528 N.Y.S.2d 539, 1988 N.Y. App. Div. LEXIS 4582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1988
• Status: Published

Opinions

Defendant Imre Rosenthal does not deny that he executed the letter dated August 1, 1972 in which he unequivocally and unconditionally granted plaintiff 10% of the profit of the clearly specified venture. In his affidavit in opposition to plaintiffs motion, Mr. Rosenthal admits that he delivered the letter to Mr. Rubenstein with the intent to reward him. Rosenthal opposes the motion, however, by attempting to raise the legal defense that since the letter is in recognition for services rendered in the past, it cannot be enforced as a contractual obligation because it is supported by past consideration.

This purported defense is not dispositive of the action since the letter was effective as a present gift, for which consideration is not necessary, and not as a creation of contractual rights to a percentage of future profits. This case is closely akin to Speelman v Pascal (10 NY2d 313), where a similar letter was held to be enforceable as a gift. In Speelman, defendant owned the exclusive world rights to produce a musical play and motion picture based on George Bernard Shaw’s "Pygmalion”. At a time prior to the production of the enormously successful "My Fair Lady”, defendant signed and delivered to plaintiff a letter stating in pertinent part:

" 'This is to confirm to you our understanding that I will give you from my shares of profits of the Pygmalion Musical stage version [certain percentages] * * *

'This participation in my shares of profits is a present to you, in recognition for your loyal work for me as my Executive Secretary.’ ” (Supra, at 316.)

The Court of Appeals held that this letter constituted a valid, complete, present gift to plaintiff by way of assignment. The court reasoned that there was a "completed delivery of a kind appropriate to the subject property” (supra, at 319), and that the language used in the letter was sufficient to show an irrevocable intention that the gift become operative at once, notwithstanding that at the time of the letter there was no stage or film part yet in existence and the profits from which the percentage would be due necessarily would accrue in the future. The court in Speelman (supra) enforced this obligation without reservation despite the fact that a reward for plaintiffs loyal work, the motive for the letter, could be construed as "past consideration”.

In accordance with the long-established law of gifts, the elements necessary for an effective gift are (1) an intent on the part of the donor to make a present transfer; (2) delivery of the gift, either actual or constructive, to the donee; and (3) acceptance by the donee. (Gruen v Gruen, 68 NY2d 48, 53; Matter of Van Alstyne, 207 NY 298, 306.) Here, as in Speelman (supra), each of these elements has been clearly established by uncontroverted facts.

The intent to make a present transfer is evidenced by the terms of the letter itself, which contains a specific description of the property, including the exact acreage, the 50% interest which Rosenthal possessed in the property, and the specific, present language "I have granted you 10% of my share.”

There is no question as to delivery of the gift. Rosenthal delivered the signed writing to the plaintiff. In a transaction of this type delivery of the writing evidencing the gift is sufficient. (See, Gruen v Gruen, supra, 68 NY2d, at 56-57.) The rule of "delivery” is not inflexible, but is intended only to prevent fraudulent or mistaken claims. (Supra.) Neither fraud nor mistake is alleged here by the defendant. Finally, the requirement of acceptance by the donee is also clearly demonstrated.

The dissent places great emphasis on defendant’s argument that the complaint and moving papers set forth alternative theories of breach of contract as support for plaintiff’s claim pursuant to the letter. However, this fact, standing alone, does not prevent the grant of summary judgment on the theory of a gift. Pleadings are to be liberally construed, and alternative and inconsistent theories may be asserted in accordance with CPLR 3014. The complaint and the moving papers allege sufficient facts to support the theory of a gift, and the defendants had ample notice as to such theory and had an opportunity to defend thereon, in light of plaintiff’s allegations both in the complaint and the moving papers that the letter was intended as a bonus. The word "bonus” is a synonym for "gift”. (See, Roget’s Thesaurus, at 480-481 [1982 Lloyd ed].) It is well settled that summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice. (Costello Assocs. v Standard Metals Corp., 99 AD2d 227, 229, appeal dismissed 62 NY2d 942; Dampskibsselskabet Torm v Thomas Paper Co., 26 AD2d 347, 352.) Under the circumstances here present, it was proper to grant plaintiff summary judgment on the theory of a gift.

While the dissent suggests that a formal amendment to the pleadings is necessary to obtain relief on the theory of a gift, since there is no showing of prejudice and the proof submitted is sufficient, this court has the power to amend the pleadings to conform to the proof (see, Dampskibsselskabet Torrn v Thomas Paper Co., supra) and reversal is not necessary on such ground.

The dissent also contends that summary judgment should be denied because of the existence of triable issues of fact "with respect to the intentions and actions of the parties”. However, any issue as to whether a bonus was intended for services rendered by the plaintiff to the corporate defendant or to the individual defendant is irrelevant. The controlling issue, about which there is no question, is that defendant Rosenthal signed and delivered a letter that clearly intended, for whatever reason, to give to plaintiff 10% of his profits from this real estate venture. He is bound by the letter, and summary judgment was properly granted. Concur — Kupferman, J. P., Ross, Carro and Ellerin, JJ..