ITSKOV v. Doctor Kaleed Sultan, Appellant-Respondent.

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Supreme Court, Appellate Term, New York.

Ilona ITSKOV, Respondent-Appellant, v. NEW YORK FERTILITY INSTITUTE, INC., Defendant, Doctor Kaleed Sultan, Appellant-Respondent.

Decided: February 17, 2006

Present:  PESCE, P.J., WESTON PATTERSON and BELEN, JJ. Martin Clearwater & Bell LLP, New York City (Ellen B. Fishman of counsel), for appellant-respondent. Weinstein, Soybel & Kirwin, New York City (Solomon Weinstein of counsel), for respondent-appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered August 2, 2004 (see 4 Misc.3d 874, 782 N.Y.S.2d 584 [2004] ).   The order, insofar as appealed from by defendant Doctor Kaleed Sultan, denied that branch of his motion to dismiss the first cause of action alleged in the complaint pursuant to CPLR 3211(a)(7).   The order, insofar as cross-appealed from by plaintiff, granted that branch of the motion seeking dismissal of the second cause of action alleging fraud.

Order unanimously modified by striking the provision denying the branch of defendant Doctor Kaleed Sultan's motion to dismiss the first cause of action and by granting said branch of defendant Sultan's motion;  as so modified, affirmed without costs.

 In the case at bar, the complaint alleges a surrogate parenting agreement (Domestic Relations Law § 121[4] ), pursuant to which defendant Doctor Kaleed Sultan was to perform in-vitro fertilization on a surrogate mother.   It was further alleged that the child to be born from the impregnation was for the purpose of creating a child for plaintiff to adopt.   Pursuant to Domestic Relations Law § 122, surrogate parenting agreements are against the public policy of this state, and are void and unenforceable.   The statute is intended to prohibit surrogate parenting contracts where the surrogate mother, at the time of insemination or impregnation, agreed to surrender the child for adoption and the insemination or impregnation was done specifically for the purpose of creating a child for adoption (Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 122 at 322).

 A party to an illegal contract cannot seek a court of law to help her carry out her illegal object (see Empire Magnetic Imaging v. Comprehensive Care of N.Y., 271 A.D.2d 472, 705 N.Y.S.2d 652 [2000] ), and the court will leave the parties to such a contract where they find them (see Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 385, 604 N.Y.S.2d 900, 624 N.E.2d 995 [1993];  Flegenheimer v. Brogan, 284 N.Y. 268, 272-273, 30 N.E.2d 591 [1940] ).   In view of the foregoing, defendant Sultan's motion pursuant to CPLR 3211(a)(7) to dismiss the first cause of action should have been granted.

 Regarding plaintiff's cross appeal, the promise made during the alleged meeting between the parties cannot form the basis of a claim of fraud in the inducement since the promise to perform in the future pursuant to a contract merely duplicates the claim for breach of contract (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995];  Reiser, Inc. v. Roberts Real Estate, 292 A.D.2d 726, 739 N.Y.S.2d 753 [2002];  Orix Credit Alliance v. Hable Co., 256 A.D.2d 114, 115, 682 N.Y.S.2d 160 [1998] ).   In any event, plaintiff cannot plead or prove the illegal contract to establish a claim of fraud (see Carr v. Hoy, 2 N.Y.2d 185, 187, 158 N.Y.S.2d 572, 139 N.E.2d 531 [1957] ).   Thus, the court below properly granted the branch of the motion seeking to dismiss plaintiff's cause of action alleging fraud.

Finally, we find that Domestic Relations Law § 123(1)(b) has no application to the facts herein, where it is alleged that the doctor was part and parcel of a contract that was illegal ab initio.