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Allen v. Robinson


October 19, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Leonard Allen brings this diversity action against Helen Robinson Cox for damages arising out of an alleged oral contract wherein Cox agreed to pay Allen for helping her recover from a serious illness while they resided together as domestic partners. Following Cox's motion to dismiss, Allen's sole remaining claim is premised on breach of contract.*fn1 Cox now moves for summary judgment pursuant to Federal Rule of Civil Procdure 56(a) on the grounds that (1) Allen's alleged contract is barred by the statute of frauds; (2) Allen has failed to prove the existence and/or performance of the contract; and (3) Allen has acted in bad faith in discovery thereby destroying evidence and warranting dismissal. For the following reasons, Cox's motion is granted in full and this case is dismissed.


A. The Parties

Allen and Cox lived together in New York City as domestic partners for more than two decades prior to 2008.*fn3 Allen is a seventy-year-old man who retired from, and now collects a pension from the Consolidated Edison Railroad, Northeast.*fn4 He currently resides in New York.*fn5 Cox is a fifty-five-year-old woman who once worked as a bus driver for the New York Metropolitan Transportation Authority.*fn6 She currently resides in South Carolina.*fn7 Allen and Cox have a single child together - a thirty-year-old mentally retarded son named Joseph.*fn8 Allen lives with and cares for Joseph full-time.*fn9

B. Cox's Illnesses

During their relationship, Cox suffered a series of illnesses. In 1998, Cox's health began to deteriorate and she underwent multiple operations, including thyroid removal as well as the removal of several cysts.*fn10 Following these operations, Cox "couldn't do anything" for about a year and Allen was her primary caregiver while she recovered.*fn11 While she was at home recovering from the surgeries, Cox's health was "going downhill," although she was able to leave the house and drive alone.*fn12

In 2002, Cox was diagnosed with breast cancer.*fn13 To combat the cancer, Cox received chemotherapy and radiation therapy, and underwent a left simple mastectomy on April 22, 2002.*fn14 During the years and months following Cox's cancer and breast surgery, Allen was her primary caregiver.*fn15 Allen devoted a great deal of time after the 2002 surgery to driving Cox to and from the hospital, taking her to chemotherapy treatments, caring for her around the home, cooking for her, doing laundry for her, washing her, and giving her injections and medicines.*fn16

In 2002, Cox's sick mother, Juanita Porter, came to live with Cox and Allen.*fn17 During her visit, Allen took care of Porter in addition to Cox.*fn18 Cox has been in remission since January 2005, and mammograms since that time have not revealed any recurrent cancer.*fn19

In addition to caring for Cox, Allen was also dealing with his own medical issues since 2005.*fn20 From 2005 through 2007 Allen was hospitalized "many times" because of cataract surgery as well as heart disease.*fn21 He also had a pacemaker installed in 2009.*fn22 Allen maintains that these conditions did not limit his ability to care for Cox during the 2005-2006 period, though he has refused to allow Cox to obtain hospital records.*fn23

C. Cox's Medical Malpractice Suit

Sometime in 2006, Allen informed Cox that she might have a lawsuit based on improper medical care that she had received prior to 2002.*fn24 Cox consulted with the law firm of Jacoby & Meyers, and ultimately brought a medical malpractice lawsuit with a different law firm.*fn25 Cox's suit ended with a $1.4 million settlement, and after deducting legal fees and expenses, Cox received approximately one million dollars on or about July 1, 2009.*fn26 While Allen and Cox subsisted together in harmony for over twenty years with limited means, the sudden receipt of this enormous sum destroyed their relationship.

D. The Alleged Agreement

Allen alleges that in June of 2006, prior to Cox's receipt of the settlement funds, Cox promised Allen that if he took care of her "until I get completely through this recovery," she would give Allen the proceeds of her settlement (the "Agreement").*fn27 There is no documentation of the Agreement, and everything about it - from its making to Cox's alleged breach - is hotly disputed by the parties.*fn28

1. Cox's Version of the Agreement

Cox submits that she never made such a promise at all.*fn29 Cox argues that the Agreement would have made no sense given that her health had markedly improved by 2006, and that she was in no need of Allen's constant care.*fn30 She also denies that there were any witnesses that observed either the making of or any subsequent affirmations of the Agreement.*fn31 While Cox acknowledges that there was a time when she was thankful for Allen's "comfort and assistance," that was all in the immediate aftermath of her battle with breast cancer in 2002.*fn32 Cox further points to the lack of evidence submitted by Allen to support the Agreement as well as the confusing and contradictory nature of his deposition to argue that the parties never agreed to any essential terms or binding agreement in June of 2006.*fn33

2. Allen's Version of the Agreement

Allen described the existence and nature of the alleged Agreement in his deposition, which contains varied and incoherent narratives about many details of the Agreement.

a. The Making of the Agreement

Exactly when the Agreement came into existence is, at best, unclear. Allen initially asserts that there was an agreement in place prior to 2006 wherein Cox had said "I will take care of you if you take care of me."*fn34 Allen also suggests that the Agreement came into existence when he informed Cox of the possibility that she had a medical malpractice lawsuit.*fn35 However, in connection with this possibility, he notes that Cox repeated her promise to pay "many times, including when the lawsuit was starting."*fn36 Allen further states that the Agreement was made on Father's Day in 2006, although it is unclear exactly what was promised on that date.*fn37 Though Allen admits that there were no witnesses to the making of the Agreement, he does allege that Cox affirmed its existence to two witnesses in the years following the Agreement.*fn38

b. The Consideration for the Agreement

While Allen contends that the Agreement was a "service contract," he presents multiple possibilities regarding what he actually did or was supposed to do for Cox pursuant to the Agreement. Early in his deposition, Allen mentions assisting Cox "when she came home from the hospital," including driving her to and from chemotherapy treatments.*fn39 This involved care provided for Cox after her surgery in 2002.*fn40 Allen also notes that he provided "basic care" for Cox in June and July of 2006, though she was no longer getting chemotherapy at that time.*fn41 Allen also makes reference to an agreement to "take care" of Cox that was part of an understanding in place prior to the 2006 Agreement.*fn42 Allen further suggests that the Agreement was made in consideration for helping Cox "get back on her feet," at around the time the lawsuit was beginning.*fn43 Additionally, Allen testified that the real consideration for the Agreement was Allen's "love and care."*fn44 Allen also noted in the later portions of his deposition that the Agreement was made in consideration of helping Cox get "through this," and it encompassed services spanning their entire relationship.*fn45 Only at one point, in the latter half of his testimony, did Allen make specific reference to doing laundry, washing and giving Cox medicines and injections "in exchange for this money."*fn46

c. The Amount of Compensation Under the Agreement*fn47

Allen's deposition testimony also contains multiple possibilities as to the amount that Allen would be paid for his services under the Agreement. Allen initially suggests that he was to receive "royalty benefits for taking care of" Cox in an unspecified amount.*fn48 Allen also testified that his compensation under the Agreement was to be "basically" the "settlement amount," though he was not sure exactly how much that amount was.*fn49 Regarding the Agreement as of Father's Day 2006, Allen characterizes Cox as saying, somewhat ambiguously, "This is yours, Leonard. Everything we went through, all over the world, to Chicago, and we went . . . ."*fn50 At one point in his testimony, Allen also denied that he was owed $700,000 - or any other specific amount - and instead claimed to be entitled to "whatever the number was with her in that bank account."*fn51 Allen also indicated that Cox never agreed to a specific amount of money to be paid under the Agreement in 2006.*fn52 Allen also stated that Cox had mentioned $700,000 at some point, but had never mentioned $800,000.*fn53

d. The Time and Performance of the Agreement

The Complaint alleges that the entirety of the Agreement could have been performed within a year and that the money would be available within "a matter of weeks."*fn54 While no one disputes that the settlement funds were available shortly after June of 2006, Allen later claimed that the Agreement was made for services spanning "the entirety of us [Allen and Cox] knowing each other."*fn55

Specifically, Allen suggests that the Agreement was somehow rooted in the "entire 25 years" that he and Cox had lived together and during which time Allen "was taking care of [Cox] through the sickness."*fn56 Allen also stated that Cox proposed the terms of the Agreement "many times," including in 2006.*fn57

E. The Parties' Interactions Subsequent to the Agreement

Cox received her settlement money on or about July 1, 2006.*fn58 In either 2006 or 2007, Cox deposited $100,000 into Allen's personal checking account.*fn59 Allen claims that this $100,000 was neither payment for his services nor a gift.*fn60 Instead, Allen claims that this deposit was "something she did [] without talking to me," or that it was deposited for the care of their son Joseph.*fn61 Allen further claims that immediately following the settlement, Cox made all the settlement money available to him by depositing it in a joint account.*fn62 In fact, Allen used that money, possibly in conjunction with the $100,000 he received from Cox, to purchase, among other things, a yacht and a Cadillac DeVille for more than $40,000.*fn63

F. Cox's Alleged Breach

Sometime around 2007 or 2008, Cox began taking the settlement money out of her joint account with Allen.*fn64 During that time, Cox moved the money into a certificate of deposit and Allen stopped receiving statements about the joint account.*fn65 In late 2008 or early 2009, Allen realized that Cox was lying to him about the money, and began to look for an attorney.*fn66 Ultimately, Allen claims he never received the money he was entitled to and that it was stolen by Cox.*fn67

Allen commenced this action on September 16, 2010 alleging (1) breach of contract; (2) conversion; (3) misrepresentation; (4) fraud; and (5) prima facie tort. As a result of this Court's decision on Cox's motion to dismiss, Allen's lone surviving claim was for breach of contract. Following a contentious discovery phase, Cox now moves for summary judgment.


A. Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."*fn68 "'An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law.'"*fn69 "[T]he burden of demonstrating that no material fact exists lies with the moving party . . . ."*fn70

"When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim."*fn71

To defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.*fn72 The non-moving party must do more than show that there is "'some metaphysical doubt as to the material facts,'"*fn73 and it "'may not rely on conclusory allegations or unsubstantiated speculation.'"*fn74

However, "'all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"*fn75

In determining whether a genuine issue of material fact exists, the court must "constru[e] the evidence in the light most favorable to the non-moving party and draw all reasonable inferences" in that party's favor.*fn76 However, "'only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.'"*fn77 "'Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'"*fn78 Summary judgment is therefore "appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."*fn79


A. Breach of Contract

To make out a breach of contract claim under New York law a plaintiff must show "(1) the existence of a contract between itself and that defendant; (2) performance of the plaintiff's obligations under the contract; (3) breach of the contract by that defendant; and (4) damages to the plaintiff caused by that defendant's breach."*fn81 A breach of contract claim "that fails to allege facts sufficient to show that an enforceable contract existed between the parties is subject to dismissal."*fn82

Under New York law, "before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained."*fn83

The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to . . . . [I]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.*fn84

A claim for breach of contract must therefore be supported by "evidence establish[ing] that there was [a] meeting of the minds between the parties as to essential contract terms."*fn85 For "an agreement to be enforced, it must be sufficiently definite and explicit so [that the parties'] intention may be ascertained to a reasonable degree of certainty."*fn86 "Material terms" of a contract that require definition include "time, manner of performance and payment schedule."*fn87

Moreover, "[a] plaintiff faces a heavier burden when trying to prove an alleged oral contract. To ensure that parties are not trapped into surprise contractual obligations that they never intended, more than agreement on each detail is required, there must be an overall agreement to enter into the binding contract."*fn88


Cox argues that this case must be dismissed because (1) there was no contract or performance; (2) any contract that did exist was a violation of the statute of frauds; and (3) the case merits dismissal for plaintiff's failure to comply with discovery. While I decline to dismiss this case based on spoliation of evidence, I do note that Allen has failed on multiple occasions to produce either his medical records or bank records. Additionally, the constant bickering and hostile communications between the attorneys in this case has created unnecessary hardship for both the parties and the Court. In any event, after reviewing the merits of this case, the alleged Agreement is indefinite and vague, and the ambiguous deposition testimony elicited from Allen fails to support the existence of a binding agreement. Because I find that the Agreement is vague as a matter of law, I do not address Cox's defense based on the statute of frauds.

A. At No Time Did the Parties Create a Binding Agreement

Allen has not met his burden of responding to Cox's contentions that Allen's claims are unsupported.*fn89 While Allen's deposition testimony does refer to specific statements made on Father's Day of 2006, it is wholly unclear what, if anything, was agreed to at that time. Allen proffers only that Cox said at that time "This is yours."*fn90 Meanwhile, portions of the alleged Agreement, including the specific consideration and amount of compensation to be paid, were communicated both before the settlement, after the settlement, and "many times."*fn91 In fact, Allen stated at one point that the Agreement dated back to when Cox had cancer years before 2006.*fn92 Without knowing even approximately when this Agreement was entered into or finalized, it is nearly impossible to determine what, if any, binding terms were agreed to by the parties. Moreover, despite the fact that Allen claims that two witnesses can corroborate the existence of the Agreement,*fn93 he has failed to provide any evidence from such witnesses.*fn94

B. The Consideration and Compensation Under the Agreement Were Vague and Undefined

There is not one iota of evidence in the record suggesting that the consideration in the Agreement went beyond caring for or tending to Cox. However, it is well-settled in the law that "[t]he words to 'take care of' . . . are too vague to spell out a meaningful promise."*fn95 Of note, Allen has not proffered any evidence to rebut Cox's extensive evidence that she did not need injections or medicines in 2006. Cox had also completed chemotherapy and her cancer was safely in remission years before 2006.*fn96 Thus, Allen's reliance on the creation of a contract based on agreements to "take care of" or "love and care" are legally insufficient. Indeed, under a contract based on such vague directives, Allen's duties would have been both unknown and unknowable. There is no evidence, for example, that this Agreement to "take care" could be settled by reference to some external objective standard.*fn97 Moreover, to the extent that Allen engaged in more concrete actions such as giving injections or administering medicine prior to 2006, those actions did not involve Cox's recovery in or after 2006 - the focus of the alleged Agreement.*fn98

Furthermore, Allen's testimony is contradictory and unclear regarding what compensation he was promised - a material term of the agreement.*fn99 While the Complaint alleges an initial Agreement of one million dollars followed by modifications adjusting the sum downward to $800,000 and then to $700,000,*fn100 Allen admits that Cox never mentioned the possibility of $800,000.*fn101 Moreover, Allen wavers between stating that the Agreement was for the entire settlement, for whatever was in Cox's bank account, and for the fixed sum of $700,000.*fn102 In fact, at times, Allen's testimony suggests that the Agreement did not involve monetary compensation*fn103 - a likely possibility given that the Agreement predated any recovery in Cox's medical malpractice suit. Thus, without any definitive agreement as to price, Cox could not have known what her obligations would be under the Agreement. For instance, even if Cox believed that she had in some way obligated herself to Allen, she may have intended to satisfy that obligation with the otherwise-unexplained deposit of $100,000 that she made into Allen's personal bank account.*fn104

C. The Duration of the Agreement Was Unknown

Finally, the duration and time-period of this alleged contract has not been defined. On the one hand, Allen claims that this contract could have been fully performed within a year.*fn105 On the other hand, Allen indicated that the Agreement was in consideration for the entire twenty-five years that Cox and Allen had known each other.*fn106 Moreover, based on such loose terminology as an obligation to "take care of" and "love and care," it is conceivable that this Agreement pertained to some indefinite duration of Cox's illnesses and recoveries. In fact, Allen admits that he never thought the Agreement would become controversial because he anticipated that "we would be living together forever," and thus, presumably, sharing their anticipated wealth.*fn107 As such, Allen has not shown that the Agreement contained any boundaries or time-frames in which its fulfilment could have been expected or demanded. The Agreement is thus impermissibly vague in terms of its duration - an essential contractual term.*fn108

Additionally, had the parties agreed to such sweeping terms, this Agreement would have violated the statute of frauds' bar on oral contracts incapable of performance within one year.

In sum, this case is a poster child in support of the doctrine of definitiveness. In order to avoid placing substantial obligations on a party by surprise, the law insists that agreements be clear and concrete. Where parties live together and interact casually over the course of a twenty-five-year relatioonship, it would be unfair to construe their past hopes and aspirations as future binding obligations.


For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this motion [Docket No. 26] and this case.


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