        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

866
CA 12-02275
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


BURT G. RAMOS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TIMOTHY P. HUGHES, DEFENDANT-APPELLANT.


JOHN F. PRESCOTT, JR., DEPEW, FOR DEFENDANT-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (THOMAS DIGATI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered June 19, 2012. The order, among other things,
granted that part of the motion of plaintiff seeking dismissal of
defendant’s fourth and fifth counterclaims.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking dismissal of the fourth and fifth counterclaims and
reinstating those counterclaims and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking partition of
real property owned by the parties. In his answer, defendant asserted
various counterclaims, including for breach of an unwritten domestic
partnership agreement (fourth and fifth counterclaims). Thereafter,
plaintiff moved, inter alia, to dismiss the counterclaims. As
relevant to this appeal, Supreme Court granted that part of the motion
seeking dismissal of the fourth and fifth counterclaims.

     We agree with defendant that he asserted legally cognizable
counterclaims for breach of a domestic partnership agreement. On a
motion to dismiss pursuant to CPLR 3211, pleadings are to be liberally
construed (see Leon v Martinez, 84 NY2d 83, 87; see also CPLR 3026).
The court is to “accept the facts as alleged in the [pleading] as
true, accord [the proponent of the pleading] the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory” (Leon, 84 NY2d at 87-
88). “[T]he criterion is whether the proponent of the pleading has a
cause of action, not whether he [or she] has stated one” (id. at 88
[internal quotation marks omitted]; see Parker v Leonard, 24 AD3d
1255, 1256). With respect to domestic partnership agreements, “New
York courts have long accepted the concept that an express agreement
between unmarried persons living together is as enforceable as though
                                 -2-                           866
                                                         CA 12-02275

they were not living together . . . , provided only that illicit
sexual relations were not ‘part of the consideration of the
contract’ ” (Morone v Morone, 50 NY2d 481, 486). Additionally, there
is no statutory requirement that such a contract be in writing (see
id. at 488). We conclude that here defendant sufficiently pleaded
counterclaims for breach of a domestic partnership agreement and that
the court therefore erred in dismissing the fourth and fifth
counterclaims (see id. at 485-488). Thus, we modify the order
accordingly.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
