Kara Freedman, Plaintiff(s), v. Harrison Levine, Defendant(s). (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion:

PAPERS NUMBERED

Motion Seq. No. 1

Notice of Motion and annexed Exhibits and Affidavits 1

Answering Affidavits, and Exhibits 2

Reply Affirmation 3

Upon the foregoing cited papers, defendant's motion to dismiss is granted in part for the following reason(s):

Plaintiff commenced this action to recover damages resulting from a failed engagement to marry. Plaintiff and defendant became engaged on September 26, 2025. Shortly thereafter, the parties set a destination wedding in Mexico for October 31, 2026. Around this time, the parties negotiated and executed contracts with various wedding vendors.

On October 27, 2025, plaintiff alone executed a contract with Bö Events for wedding planning services ("Bö contract"). Pursuant to the payment schedule in the contract, the parties paid a deposit of $3,250.00; $1,923.00 of this sum came from plaintiff and defendant's joint funds, and plaintiff personally contributed an additional $1,577.00.

On November 21, 2025, the parties negotiated and executed a contract with a Mexican resort, The Riviera Maya EDITION at Kanai ("EDITION contract"). The resort was to be the venue for their wedding. Both plaintiff and defendant signed the EDITION contract, which stipulated a series of advance payments between the signing date and September 24, 2026. The EDITION contract stated that "[f]ailure to remit the appropriate pre-payment on a timely basis will be considered a cancellation by your group and you shall be liable for amounts described in the cancellation provisions" (defendant's exhibit C at 4).

Pursuant to the EDITION contract's payment schedule, plaintiff made an initial payment of $13,647.64 upon execution. On the same day, defendant sent plaintiff a text containing the following statement: "My mom called and I told her we're all set for 10/31, she can have us the $20k by September and she'll make payments throughout the year" (defendant's exhibit B). However, no such payment was ever made. Plaintiff made a second payment of $13,400.00 on January 15, 2026, as required by the advance payment schedule in the EDITION contract. Failure to pay by that date would have resulted in cancellation and liquidated damages of $24,744.33 according to the EDITION contract.

On November 26, 2025, the parties both executed a videography contract with Gamut Cinematography ("Gamut contract"). Plaintiff made an initial payment of $1,550.00 on that date as required by the contract. Defendant made no payments. Around December 10, 2025, Defendant alone executed a photography contract with Take It Photo ("Take it Photo contract"). Plaintiff made a deposit of $2,000.00 pursuant to the contract. Defendant made no payments. On December 19, 2025, plaintiff executed an agreement with The White Gown for a bespoke wedding dress, paying a deposit of $2,758.58.

On February 21, 2026, defendant ended the engagement and the parties separated. Plaintiff promptly cancelled the wedding vendor contracts. The EDITION contract stipulated liquidated damages of $44,539.40 in the event of cancellation between January 13, 2026, and March 13, 2026. Nevertheless, the resort accepted the sum of plaintiff's previous payments ($26,647.64) to satisfy the total amount of damages.

Defendant now moves to dismiss the complaint pursuant to CPLR 3211(a)(7). Defendant contends that plaintiff's claims are barred as a matter of law under Civil Rights Law § 80-a, also known as the New York Heart Balm statute. Specifically, defendant contends that plaintiff's claims are for damages based on expenditures made in contemplation of a marriage that never occurred. Defendant further contends that the complaint is also devoid of any allegation that defendant entered into a contract with plaintiff to share or repay wedding-related expenses, or that defendant assumed any legal responsibility for the payment to the vendors.

Defendant also moves to disqualify plaintiff's counsel, Howard Freedman, Esq. ("Freedman") who is also plaintiff's father, under New York Rule of Professional Conduct 3.7 and Rule 1.7. Defendant asserts that Freedman is a necessary witness since he paid the vendor fees and that he has a direct, personal financial interest in the outcome of the action that conflicts with his duties as an objective advocate.

In opposition, plaintiff avers that it was defendant who participated in the negotiations and executed the contracts. Plaintiff argues that the claims asserted in the complaint do not violate the Heart Balm statute. Specifically, plaintiff argues that the causes of action are based on executed agreements by the parties with third party vendors. Plaintiff avers that she has sufficiently alleged facts to support the cause of action for unjust enrichment in that she satisfied the debt under the contracts that both parties signed, including one wherein only defendant signed and thus, defendant has benefited from plaintiff's payments on those contracts. Plaintiff further avers that, as a co-signor, she has the right to contribution and/or recoupment for the defendant's proportionate share. Finally, plaintiff posits that plaintiff detrimentally relied on defendant's promise to pay.

CPLR 3211(a)(7) allows a defendant to move to dismiss one or more claims for failure to state a cause of action, thereby testing the facial sufficiency of a pleading, assessing whether "plaintiff has stated a claim cognizable at law" (see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 135 [1st Dept 2014]). In considering such a motion, "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010] [internal quotation marks omitted]). "However, allegations consisting of bare legal conclusion as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Maas v Cornell Univ., 94 NY2d 87, 91 [1999] [internal quotation marks omitted]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).

The enactment of section 80-a of the Civil Rights Law abolished the suit for breach of contract to marry (see Gaden v Gaden, 29 NY2d 80 [1971]), Its purpose was "to avoid annoyance, humiliation and pecuniary damages to persons who were merely victims of circumstances and the history of the causes of action for alienation of affection and breach of promise to marry being misused as improper means of unjust enrichment and fraud" (Bruno v Guerra, 146 Misc 2d 206, 207[Sup Ct, New York County 1990])

Breach of Contract

A "complaint cannot be sustained on the basis of an alleged breach of contract to marry since that would violate section 80-a of the Civil [R]ights law which prohibits such causes of action" (Roney v Janis, 77 AD2d 555, 556 [1st Dept 1980], aff'd 53 NY2d 1025 [1981]). However, when an independent contractual agreement between the parties exists, there is "no cognizable rationale for treating a contract regarding wedding expenses as significantly different from any other contract" (DeFina v Scott, 195 Misc 2d 75, 80 [Sup Ct, New York County 2003]). Whereas here, there is no independent agreement between plaintiff and defendant to share in the pre-wedding expenses, the Court finds that this cause of action is barred by Civil Rights Law § 80-a. The complaint is devoid of allegations that the parties had an independent agreement to allocate wedding expenses between them. Even accepting the facts as true and according plaintiff every favorable inference, the allegations are insufficient to sustain a cause of action for breach of contract. Further the New York courts have dismissed claims for wedding expense reimbursement when no such independent agreement exists. (e.g. Snacki v Pederson, 36 Misc 3d 1240[A], 2010 NY Slip Op 52457[U] [Sup Ct, Monroe County 2010]). Consequently, this cause of action is dismissed.

Contribution

It is well settled that contribution is unavailable when the damages sought by plaintiff on the causes of action are merely for economic loss (see Board of Mgrs. of 195 Hudson St. Condominium v 195 Hudson St. Assoc., 37 AD3d 312 [1st Dept 2007]). There are no allegations that the damages sought are for anything but economic loss. Plaintiff's assertions that "equity and law recognize a co-signor's right to seek contribution and/or recoupment from the other co-signor for [their] proportionate share" are unavailing. Indeed, plaintiff failed to cite any caselaw in support. Accordingly, this portion of defendant's motion to dismiss is granted.

Unjust Enrichment

Unjust enrichment is a quasi-contract claim that "contemplates 'an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties' " (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012] [citations omitted]). To plead a cause of action for unjust enrichment, the plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks and citation omitted]). "Athough contractual privity is not required, there must be a relationship between the parties that is not too attenuated, and that could have caused reliance or inducement" (Schroeder v Pinterest Inc., 133 AD3d 12, 26 [1st Dept 2015] [internal quotation marks and citation omitted]). Here, the complaint is devoid of any factual allegations that defendant was conferred any benefit by plaintiff. Accordingly, this branch of defendant's motion is granted.

Promissory Estoppel

"The elements of a claim for promissory estoppel are: (1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a party [to whom the promise is made]; and (3) injury caused by the reliance" (MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 841-842 [1st Dept 2011], lv denied 21 NY3d 853 [2013]). Detrimental reliance is a necessary element of a promissory estoppel claim (Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 104-105 [1st Dept 2009], lv denied 15 NY3d 703 [2010]). The failure to sufficiently plead this element warrants dismissal (see Rosenberg v Home Box Off., Inc., 33 AD3d 550, 550 [1st Dept 2006], lv denied 8 NY3d 804 [2007]).

Here, in accepting the facts as alleged as true and according plaintiff every favorable inference, as the Court must do, the Court finds that the complaint sufficiently states a cause of action for promissory estoppel. The text thread between the parties on November 21, 2025, clearly indicates that a promise to pay, that defendant's mother was going to give them "$20k by September and that she'll make payments throughout the year." The facts sufficiently allege that plaintiff relied upon this promise. Consequently, this branch of defendant's motion to dismiss is denied.

Disqualification of Plaintiff's Counsel

Rule 3.7 reads as follows:

Lawyer as witness.

(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

(b) A lawyer may not act as advocate before a tribunal in a matter if:

(1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or

(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.

22 NYCRR § 1200.00, Rule 3.7.

It is well settled that when disqualification of an attorney is raised in litigation, the New York Rules of Professional Conduct is not to be "mechanically applied," but rather, the Code should be considered to provide guidance for the courts in determining whether a case would be tainted by the participation of an attorney or a firm (S&S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 444-445 [1987]). Since disqualification impinges upon the rights of a litigant in depriving them of the attorney of their choice, "[d]isqualification may be required only when it is likely that the testimony to be given by the witness is necessary" (id. at 445-446). "A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence" (id. at 446). Relevant knowledge or involvement in the transaction at issue is not a sufficient basis for disqualification of an attorney based on the advocate-witness rule (id. at 443; Talvy v American Red Cross in Greater NY, 205 AD2d 143, 152 [1st Dept 1994], affd 87 NY2d 826 [1995] [even if the attorney "has relevant knowledge, or was involved in the transaction at issue [it] does not make the attorney's testimony necessary" and therefore does not warrant disqualification]).

The party seeking to disqualify an attorney bears the burden of establishing that "the testimony of the attorney who purportedly ought to be called as a witness would be noncumulative of other witnesses' testimony, and thus necessary, or that such testimony, if the attorney were called to testify by [defendant], would be prejudicial to plaintiff (Metropolitan Jr. Auth. v 2 Broadway LLC, 279 AD2d 315, 316 [1st Dept 2001]).

An attorney is allowed to testify on a significant issue and may remain as a party's advocate if: (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal (22 NYCRR § 1200.29[a]).

At this stage of the litigation, where discovery is not complete, the Court finds it premature that Freedman is likely to be called as a witness on a significant factual issue (see Harris v Sculco, 86 AD3d 481 [1st Dept 2011]). Even assuming, arguendo, that Freedman is likely to be a witness, it may be revealed that the testimony "relates solely to an uncontested issue" (see rule 3.7[a][1]). Additionally, where there are other witnesses available or the attorney's testimony would be cumulative, the motion to disqualify should be denied (see 1010 Data, Inc. v Firestone Enters., Inc., 88 AD3d 627, 628 [1st Dept 2011]). The Court further finds that any potential conflict between Freedman and plaintiff is purely speculative at this time (see 22 NYCRR 1200.0). Consequently, this branch of defendant's motion is denied.

Accordingly, it is hereby

ORDERED, that defendant's motion to dismiss is granted only to the extent that plaintiff's causes of action for breach of contract, contribution, and unjust enrichment are dismissed; and it is further

ORDERED, that the portion of defendant's motion for an order disqualifying Freedman as plaintiff's counsel is denied; and it is further

ORDERED, that defendant is directed to serve plaintiff with a copy of this decision and order with notice of entry within twenty (20) days of the date of entry.

This constitutes the decision and order of the Court.

DATE 9/23/2026

Hon. Alice Tam Tien, J.C.C.

Alice Tam Tien, J.