KARIM v. MALIK

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Supreme Court, Appellate Division, First Department, New York.

Abdul KARIM, Plaintiff-Appellant, v. Pervaiz MALIK, et al., Defendants-Respondents.

Decided: January 20, 2005

BUCKLEY, P.J., TOM, ANDRIAS, MARLOW, ELLERIN, JJ. Law Offices of Sanford F. Young, P.C., New York (Jan B. Rothman of counsel), for appellant. George L. Karavias, Greenlawn, for respondents.

Order and judgment (one paper), Supreme Court, New York County (Robert D. Lippmann, J.), entered December 5, 2003, after a nonjury trial, insofar as appealed from, implicitly dismissing plaintiff's claim to recover money and property given in contemplation of marriage, unanimously affirmed, without costs.

 While the record shows that plaintiff proposed marriage to defendant Azbela by tendering an engagement ring to her mother with a request that the latter speak to Azbela on his behalf, not even plaintiff could say whether Azbela ever wore it.   Azbela testified that she never did, that she told plaintiff she did not want to marry him and that the pair never dated.   The trial court's finding that there was no engagement is not inconsistent with its directive that the ring be returned to plaintiff, since Azbela testified that she offered to return the ring but that plaintiff refused.   Nor is the finding that there was no engagement inconsistent with the directive that Azbela and her family members, also defendants, return to plaintiff the money he advanced to them as a down payment on a house, there being sufficient evidence that the money was given as a loan, not as a gift in contemplation of marriage (see Civil Rights Law § 80-b).   While the trial court erred in finding that plaintiff failed to submit sufficient evidence of the value of the other gifts he gave defendants, since there was no promise of marriage, the gifts could not have been given in contemplation of marriage.