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Stormy Daniels speaks after leaving the Daniel P. Moynihan Courthouse in Manhattan after a hearing in front of Judge Kimba Wood regarding a search warrant that was executed at the home, hotel and office of Trump's lawyer Michael Cohen Stormy Daniels speaks after leaving the Daniel P. Moynihan Courthouse in Manhattan after a hearing in front of Judge Kimba Wood regarding a search warrant that was executed at the home, hotel and office of Trump’s lawyer Michael Cohen. Photo: David Handschuh/NYLJ

Let’s go past the salacious hype in the Stormy Daniels case and cut to the chase as a matter of law. There is a contract wherein the president was an unsigned third-party beneficiary. There was money paid that would satisfy the elements of a contract also known as consideration.  There were promises made that in return for the money Daniels would keep her mouth shut about an alleged sexual encounter with President Donald Trump in 2006 while he was married. A breach of contract action in New York must be brought within six years of the alleged breach.  But setting aside a contract is no easy matter and while Daniels and her attorney are getting a lot of press, the bottom line is whether the contract is enforceable.

It is the law in most states that prostitution and adultery are crimes. Agreements that provide for the enforcement of a contract of confidentiality concealing the commission of crimes may also be unenforceable and Trump may also be entitled to invoke the Fifth Amendment and his lawyer’s papers may also be privileged, thus vitiating the search warrants. Robert Mueller’s warrants must show that there was probable cause to believe that Trump and his lawyers committed crimes with respect to the Russian probe not anything pertaining to Daniels unless there is a connection, which seems unlikely.

These are all matters of contract law that the courts will capably resolve but it brings home a legal issue that we sometimes see in our Village Court in Building Code cases where illegal occupancies are alleged. A homeowner of a single-family dwelling will come forward and allege that when they bought the home it was being used as a two-family dwelling. Real property in New York is sold in “as is” condition except for whatever warranties are made in a written contract referred to as the statute of frauds. Without a certificate of occupancy showing the legality of a two-family home, the owner is out of luck. His or her only recourse may be to apply for a variance before the Board of Zoning Appeals. But unless approved for a change in use, this will not be considered as a defense to a Building Code violation.

Contract law, as the 1970s movie “The Paper Chase” showed, is at times confusing but there is one principle that applies which I attribute to the late comedian, Flip Wilson: “What you see is what you get.” In order to avoid buying a “pig in a poke,” get your deal in writing, make sure that you have a legal bargain and never rely on parol or oral evidence to support your claim of the existence of a contract or its terms.  While you may not be from that fine state of Missouri your claim should always be: “show me.”

 Thomas Liotti is the Westbury Village Court justice.

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