divorced husband's $48,000 lawsuit over wedding pics, video

8/3/2019 Divorced Husband's $48,000 Lawsuit Over Wedding Pics, Video

1/12

112712011

2

SUPREME COURT OF THE SPATE OF MEW YORK - NEW YBRK COUNTYPART ,?6

- v - MOTION DATE n-OTION SEQ. N O .MOTION CAL. N O .The fol lowing papera, numbered 1 to 11' were read on thi s motion *for &u(f h m ~ ~Notice of Motion/ Order to S h o w Cause .- Affidavits - Exhibits ..,Answering Aff ldavi ts - ExhibltsReplying AffidavitsCross-Mot ion: n Yes E4 No

3Upon the foregoing papers, it is ordered that this motlon 1 5 &l;/&a ///I (4c[r&--

Check one: 0 INAL DISPOSITION NON-FINAL DISPOSITIONCheck if appropriate: 0 O N O T P O S T 0 EFERENCE


2/12

Plaintiff, Index No. 1 16050/09-against- Motion Seq. Nos. 001 & 002

KURT B. F R E D alWa ClJKlIR. FRlED, DANlELL. FRTED, HAROLD 63ILL,ET,L A W R E V C E 14.GTl.I,ET, EI&H PHOTOGRAPfHERS d k / a ElrkI 1PHOTOGMPHERS & VIUEO PKODUCTIONS,and H.&H. PHOTOGRAPHERS OF N E W YORK, TNC., .

DORIS LING-COHAN, J . :This is a case in which it appears that the misty watercolor rneinories an d the Lcscnttered

pictures o f h e smiles . . . left behind a1 lhe wedding were more iniprtant than the real thing.Approximately seven years ago , plaintiff married h i s n o wd iv o rced wife, with photographs takenby defendants. Although the marriage did not endure, plaintifts fuiy over the quality of thephotographs an d video continued on.

BackproudOn November 29, 2007, plaintiff3odd licmis entered inlo a contracl with defendant H&H

Photographers dlda H&W Pliotograplicrs & Video Productions an do r H.&M. Photographers ofNew Y ork, Inc. (collectively, H&H) to photograph and video his wedding ceremony andreception, which took place on December 28 , 2003 Thecontract pricc was $4,100, of which

Referencing the song TheWay We Were, written hy Alnn Bergman and MarilynRergmnn, performed by Barbra Streisand.Motion sequericenumbers 00 1 and 002 are consolidatod for disposition herein.


3/12

$3,500 was paid by plaintiff at the lime he: entered into the contract, leaving a balance of $600.In his complaintt,plaintiff all,eges that employees of H&H represented that HrPtI-Is

photographers were personally F-itniIiarwith the lvcatioii of the wedding and would provideprofessional photography aid video services Cor the entjre: wedding event. After initiating hisdivorce action3, plaintiff sues for his actixul damages in excess of $48,0004, with interest,punitive damages not lcss than threc times plaintiff7sactual damages, and for attorneys fees.Am . Coinpl a t 1 I . Plaintiff alleges 1.ha.1the services hc received were unacceptable, as to: (.1)quality oftlie proofs of the photographs; (2) length, alleging that the entire wedding was notkideotaped ;ts promised; and (3) the photogmplrersuizfnrriiliarity with the wedding site. Plai.ntiffhrther alleges that after hc expressed his dissatisfacljon, H&H represented they wouldcompensate hiin for their misrepresentations and their unacceptable and unprofessional work,product, but failed to do so. Further, plaintiff alleges that after several years, H&H improperlythreatened collection efforts and harassed plaintiff.

Plaintiff commenced this action, alleging the following cmscs of action against alldefendarits: (1) breach of contract; (2 ) negligcnt misrepresentation; (3 ) violation o f t h e New Y orliGeneral Business Law pertaining to ,fala:advertising,,misleading trade practices and prohibitedcollection practices; (4,) intentional misrepreseiitatic,n/ljrL?ud; 5 )punitive damages; (6) uttomeysfees; (7) negligent infliction of emotional distress;and (8 ) intentional infliction of emotionaldistress.

1

The Court mtes that plaintitfis now divorced from his wife since April 28, 2010, yet, :,..nonetheless continues this lawsuit for the alleged failure 1.0 provide adequate photographyservices at the now estranged couples vvedding.

$48,000 appears to be the cost oEtlie wedding. ,!See Am Compl 26.2


4/12

A. Motion to Uistnir~&All defendants now move (motion scquerice 001) to dismiss the action,based on statute of

limitations, for failure to state a causc of action, a i d fiii1iu.e o plead with p~~rticularity,ursuant toCPLR 321 1(a>(5)and (7 ) and 3016(b).

Preliminarily, the Court notes thal wlwthcr.plaintiff will ultimately prevail is not the issuebefore this Court at this time. In delermiaing . . . a motion [to dismiss], it is not the function ofthe CULLITto evaluate the merits of the case. Khan v Nmwve e k , lac , 160 h D 2 d 425, 426 (1 stUept 1990);scc also 219 Broodway (:nrp 17Alexmde r s, I m . , 6 NY2d 506, SO9 (1979).Onmotion to dismiss for. insufficiency, i t is not the f h m i o n of the court to evaluate the merits of acmc. C a r h i l i m o v R m s , 108 A.D2d 776, 777 (2d Dept 1985). Instead, on a motion to dismisspursuant to CPLK 32 1 1, h e pleading is given cl liberal constrcrcti.oaand the facts alleged thereinare accepted as true. Leon 1, h iwt ine z , 84 NY2d 83 , 87 (1 994). The motion to dismiss will onlybe graiited if, upon giving the non-moving party every -k~orablcnference, th.c facts do not fitwithin an y cognizable legal theoiy. I d a t 87-88

\ r .

. ,

3.. Breach OS C:ontractDefendants move to dismiss the :firstcause o f action fo r breach of contract fo r failure to

state a claim. At this juncture, the cause o f action is not dismissed as it has been sufficientlypleaded. The following elements must tie established on a breach of contract claim: (1) a validand enforceable contract; (2) the plaintiffs perfomlance of th e contract; (3) breach by thedefendant; and (4) amages. See Noise inA l l k Pruds . , bic. v London Records, 10 R J Xd 303, 307[1st Dept 2004); Furia v Fzrria, 1 I6 AD2d 694, 695 (2d Dept 1886). r)efeenduntscontend that

3


5/12

plaintiff cannot adequately support his slo.led iiirwun~ f damages and, thus, has failed lo properlystate a breach of contract claim. I-Iowrver,viewing the alleged facts in the light most favorable toplairitiff, which the Court must do at t h i s juncture, plaiiitifi'has adequately alleged the eleinexrtofdamages, in addition to the other elements. PlainIiFf alleges that he entered into a contract forphotography services in the amount of $4,100 and paid $3,500 at the time he entered into thecontract, and alleges he was damaged by having h i l e d lo receive adequate services. Althoughplaintiff seeks damages beyond the contract price5,at a minimum, plaintiff has adequatelyallegeddamages in the amount o he contract. 'Ilzus,the breach of contract claim has been sufficientlypleaded.

2. Negligent Misrepresentation ; /Defendants move to dismiss the second cause of ction asserted in the complaint based on

statute of limitations groiuids and f i r failure to plead with adequate particularity. The secondC B U S ~ f action for negligent misrepresentution has a klree-year statute of limitations. See C'PLR214; see ulso (,'(>Ion1 Banco Pcppuhr Nurih Am., 59 AD3d 300, 301 (1st Dep't 2009). Plaintiffentered into the contract with defendanls on November 24,2003 and the wedding photographyservices at issue in this lawsuit occurred on 13eceniber28, 2003. Since this action wascommenced on Nuveinbet. 13 ,2009 , more tliari thee years later, plaintiff has failed lo bring theclaim for negligent misrepresentation within the time period allowed.

While plajiitiH argiies that the 1013 causes ol ' action arc continuing wrongs and, thus, thestatute of limitations has not ru n on those claims, such axgument is unpersuasive. Plaintiff

' t appears that plainti IT is also suing (in he cntirl: cost US: the wedding, which he isunlikely to be nwarded,4


6/12

conlends that defendants harassment a i d threats to collect the purported d.ebtyears after th ewedding occurred are sufficient to find dtltendants tortious actions to be recurring, whichprevented the statute of liniilations from mnning. I-lowever, the second cause of action lornegligent misrepresentation is really based on statements allegedly made by defendants in eitherentering th.e contract or sliortly thereafter. In any event, more than. three years have passed and theclaim is baned. Thus.,as to the second cause o f action fo r negligent misrepresentation, it isdismissed as the statute of lintitations h a l un .

3. GBI, 0 349 .- Deceptivc Ac,~snd PracticesDefendants move to dismiss the third cause o f action for violation of the New York

General Business Law, based OD plaintiffs alleged failure 1.0 state a cause of a c h n and failure tostate the claim with particularity. Plaintiff brings this suit under GBL 13 349, which governs deceptive acts and practices. The elements of a cause o-Emtion under GBL. 349 are: (1) thechallenged act or practice was consumer-orienteilI (2) it was misleading in a material way; and (3 )plaintiff suffered injury as a result of th e deceptive act. Oswego Laborers Local 2 / 4 PensionFund 17 Murine Midlund Bunk, N . A , 85 NY2d 20, 24-25 (.199S).

, ( < ,

With respect tu the first element, a party:claiming the benefit of the sectionmust, at a ~heslzold,harge conductthat is cousumer oricnted. The conduct need not be repetitive orrecurring but defendants ac1.s or praclices must have a broad impact011 consumers at large; Lplr ivate contract disptitesunique to the partieswould riot fall within ihc ambit of the statute.

New Yurlc IJoiv. 1 ContinmfalIiis.Cu.,87 NY2d 308, 320 (1905) (internal yuoiations ,and~

citations omitted). As the Court of Appeals noted in Osu~egc~uborws Local 21 4 Pension F m d ,acts wlzich are the sub-jectof be statute rnusl be ~COnsUrncr-cirieiitedn the sense that they


7/12

potentially affect similarly situated consumers. 85 NY2d at 27. Thetest is whether areasondble consumer in plaintiffs circumstances nlight have been misled by the . . . conduct. Id .

Viewing tlie allegations in the light mosi favorable to the noti-moving party, plaintiff hasfailed to adequately state a claim for violation ofGR1, 8 349 and the cause of action is dismissed.Plainti5has alleged that rd]efendants engaged in praliibi ted practices in asserting a purportedright to collect, and threatening to collect, arnouiils which defendants knew were no t justly due UIlegally chargeable against plaintiff. Am Compl 7 5 5 . Ilowever, it is uiidisputed that there was acontract between plaintiff nnd H&H. Oms,if the rourt accepts plainiiifs view, inof contract case, a GBI> j 349 clam could be asserted whzn m e ries to collect on the contract,

breach

which could not have been the inteat.Further, as to plaintiff s allegations that Deknddnts misleading, deceptive and prohibited

I tpractices in marketing its services to the general public hzlvc a broad iinpact on CorisUmers atlarge and have caiised plaintiffto suffer daniages (id77 54..58), such allegations are generallegal conclusions and speculation, rather thaxi concrete fx t s from which this Court could infer amarketing scheme with broad impact (71 an injury to cunsimwrs at large. Plaintiff has failed tosuflkiently dernorlstrale that de kndmt s alleged deceptivc acts or practices are consumer-orientedwithin the meaning of the st:ltutc; rather, this IS a priv~itte ontract dispute unique to the parties.See New York Urriv.,87 NY2d at 320.

4. ntentional Mis~epreseiitntioi~/FraudWith regard to the fourth c a l x ai adinn EUI inientional ~nisreprcsentati~nf~aud,

defendants move to dismiss based on statute of limitntions, for failure to state a cause of ac t jmand failure to plead with particularity. The statutc of limitations period for the fourth cause of l


8/12

action for intentioiial misrep~esentatioilfrauds the longer of six years from the wrongful conductor IWO years from when die party knew, or should have discovered, the fraud. Sce CPLR 213:Rostuca Holdings, Lt d v P o l o , 23 1 AD2d 402, 403 ( 1st Ckpt 1996). As the statute of inzitationsis the greater of two or s ix years .fromwhen the fraud was discovered, and this action wascommenced less than six years from wlien the contrgct was entered into and the: servicesperformed, this claim is nu t barred by the statute of limitations.

Dekndants also argue that plaintifr failed to allege that the statements were made withscienter, that is, that defendants made stakments that they knew were false, and, thus, plaintifffailed to state a cause of action and/or plead with particularity. Supplemental Des Rr at 5 .C,ontrary to defenddnts argument, however, the amended coinplaint does contain suchallegations: Defendmls made alse raprcsentations, promises, guarantees and hreatu to plaintif.. . willfulIy and knowingly. Am CompllI 61 (emphasis added). Plaintiff>s allegations that therepreseiitatians were madc by defendants and known to be fdse are sufficient to adequately state aclaim of fraud and prevent dismissal a l this juncture. Thus. he motion to dismiss the fourth cameof action is denied.

5. Puni live Dnrnugcs and Attorneys FeesDekndan ls move to dismiss the tifill cause of act ion fo r punitive damages and the sixth

cause oltlclioii For attorneys fees lo r fail~ire o stale ;z cause ofaction. arguing that they are notseparate causes of action and are not recoverable If lhz General Business IAW claim is dismissed.The motion to dismiss the fifth and sixth Causes o f action IS granted. Plaiiittrff s requested reliefofpunitive damages atid attorneys fees is predicated on plaintiffs cause oPaction fo r defendaiitsviolation of GBL 9 349, which specifically allows fur-rccovery of punitive damages arid atiorneys

7


9/12

Pees. Since plaintiffs cause 01action based on UBL, 5 349 has been dismissed herein, the lifihan d sixth causes of action are also dismissed.

6 .Negligent Infliction of Emotional Distress andIntentional Inlliction 01 Etnulional Distress

With regard to the seventh cause of actioir Cor negiigcilt infliction of emotional distress andthe eighih cause of action for inteiitional iiiflictioii of ernc>lioiinldistress, defendants.move todismiss fofclr failure to state a cause or actiori an d 011 statute of limitations grounds. The allegationsset forth in the complaint fail tu rise io tlii: levcl necessary to bring cl,2ims fo r intentional andnegligent infliction of enioiional distrcss. A party bnnging a claim for inlliction of emotionaldistrcss, whether intentioiial or negligent. must show allqptions that the defendants conduct is30 outrageous in character, and so extrem.ei.ndegree, RS to go beyond all possible bounds ofdecency, m d o be regarded us atrocious, and utterly inlolerable n a civilized comniunify.Rerrios v Our h d v ofMcrcy&fedCCr, 20 AD3d 36 1 36;! (1st Dept ZOOS) (internal quotationsomitled). In this case. plaiiitiiffails to allege actionablc conduct that would rise to the Level ofnegligent or inlmtionczl infliction of einolioizal distress. A simple breach of contract for ailingtoprovide adequate photography services ts no1 the kind of outrageous conduct necessary tosupport a claim for infliction oicrnotionizl disi rcss; neither does a claim of attempting to collectpayment wrongfully. Id . Thus, 1he seventh and eighth causes of action are subject to dismissalunder C:PLlI 3211(a)(7), for failure io state tlinse CBLSES of action.

7 . bidividrral DefendantsWith respect to all causes of action, defendants seek 10 dismiss the complaint as to the

individual defendants, contending that they are riot proper paslies as plaintiff contracted with the


10/12

corporate entity. All the iildividual defkntlantx assert that they are not properly in tliis lawsuitbecaustl the contract and sewices at issue are betwecii 1~1aiiitifTnd H&H, no t them individually,and at least on e of them is 110 longer an eiiiployee of H&TI.

In opposition, plaintiff coratends that since El[ & 1-1 Photographers is registered by theSecretary of Stateasa pa.rhiership,and Kurt Flied and Harold Gillet are listed as parhers oftliepartnership, they may be personally liable for the debts of the partnership and, thus, are validparties herein.6 Plaintif[ has attached as R ~ I xhibit a copy of the partnership docnments located ii:the Bronx Couiity Clerk rccords, in support of his position that they should not be dismissed frointhe case. See Frederick I


11/12

negotiming the contract, pldnt i f l spoke to these employees, Although allegedly these are theindividualswith whom plaintiff interacted and negoliated, employees of a corporation or apartnership cannot be held personally liable absent piercing the corporate veil, which is not reliefbeing snuglit herein. See AIbstdiz v Elany Cnnfr .Corp 30 AD3d 210, 210 (1st Dept2006).Thus, all causes of action against Daniel Pried aid Lawrence Gillet are dismissed.J3,Mobm for r)efa& Judmneiit

In motion sequence number 002, plaintiff moves a default judgment against defendantII.&H. Photographers 01 New York, h c + , rguing that this defendant failed to appear in this

action. All defendant3 made R pre-aiswer motion to dismiss (motion sequence number 001) andare being represented by tlie Law Office of Peter Wessel, PLLC. However, in executing astipulation consenting to a n adjournmenlOR motion sequence number 001, the Law Office ofPeter Wessel, PLLC signed as attorney for all defendants, except that H.&H. Photographers ofNew Yark, Tnc. was accidentally omiitccl.

The motion fo r R default judgment against kI.&H. Photographers oCNew York, h c . isdenied. The notice o f motion for the prc-answer motion to dismiss (motion sequencenumber001) was clear that it was being made to dismiss each and every Defendant. Not. olMot. at I .As plaintiff argues thal defendant H.&H. Photographers of New York, Inc. did not appear, and notithat th e motion was unlimely, defciidrmi FI.&H. Photographers nfNcw York, Inc. is not in default.Although H.&l-I.Photographers oiNew York, Lnc. was inislakeilly omitted from the stipulatxon 017motion sequence number 001 extending the return date on defendants motion, it is clear that itwas not iiiteiitioiial or willful conduct b-9 such defcndant and that it always intended to defend thisaction. Pricher v City t f N e w York, 25 1 AD2d 242, 242 (1st Dept 1998).

10


12/12

Accordingly, it isiomEF%D that defendants' motion to dismiss (motion sequence number 001} is granted

to the tent hat the secund, rhird, fifth, sixth, sevenlli and eighth causes of action are dismissedas to all defendants; and i l i s further

OFUIERED that the iirst and fvilrth causes of actiton are dismissed as to defendants DanielFried and Lawrence Oillet with costs m d disbursements; and it is further

ORDERED that,plaintifPs motion fo r a default judgment against defendant H.&H.FhotaR@eru ofNew York, Tnc. (motion sequciice number 002) is denied; and il is firther

I , 'OFUIERED that the remaining defendants are directed to serve nnd file an answer lo the

complajnt within 30 days after service oi'a copy of this order with notice of entry, and all sidesshall complete discoveiy expeditiously; and il is further

ORDERED that within 30 days of entry of this order, defendants shall serve a copy of thisorder with notice of entry upon plaintiffn

Dated:

divorced husband's $48,000 lawsuit over wedding pics, video

Documents