[*1]
| Kaprall v WE: Women's Entertainment LLC |
| 2008 NY Slip Op 51702(U) [20 Misc 3d 1132(A)] |
| Decided on August 7, 2008 |
| Supreme Court, Nassau County |
| Austin, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Nassau County
Robert Kaprall,
Plaintiff,
against
WE: Women's Entertainment LLC, Peggy Willenberg, Melanie Metz
Trockman and Upper-Midwest Storm Tours, LLC, Defendants.
|
21840/2007
COUNSEL FOR PLAINTIFF
Stein Riso Mantel, LLP
The Chrysler Building
405 Lexington Avenue, 42nd Floor
New York, New York 10174
COUNSEL FOR DEFENDANTS
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Leonard B. Austin, J.
Defendants, WE: Women's Entertainment LLC ("WE"), Peggy Willenberg ("Willenberg"),
Melanie Metz Trockman ("Trockman") and Upper-Midwest Storm Tours, LLC ("Storm Tours"),
move to dismiss the complaint of Plaintiff, Robert Kaprall ("Kaprall") pursuant to CPLR
3211(a)(1),(5), (7) and (8). Willenberg, Trockman, and [*2]Storm
Tours are collectively referred to as the "Minnesota Defendants."
BACKGROUND
Kaprall is a resident of
Eden Prairie, Minnesota. He has worked as a producer of various television shows over the last
thirty (30) years. In addition, Kaprall has created, written and produced television series and
marketing campaigns for various networks and companies.
Willenberg and Trockman, respectively, reside in Plymouth and Minneapolis,
Minnesota. Willenberg and Trockman are known as the "Twister Sisters." The name derives
from their occupation as trackers of extreme weather, including tornadoes and hurricanes.
Willenberg and Trockman conduct guided automobile tours to track and pursue extreme weather
formations for Storm Tours.
WE is a television network and a domestic corporation. WE's principal place of
business is within Nassau County, New York.
In 2005, Willenberg and Trockman discussed the possibility of creating a television
series based on extreme weather tours with Kaprall. He was subsequently engaged to create a
reality-based television series based on Willenberg and Trockman's pursuit of extreme weather
formations ("Program Concept"). Kaprall created the Program Concept.
In or about March 2005, Kaprall contacted Rosanne Lopopolo ("Lopopolo"), director
of production and development at WE. This contact, initiated in writing, provided that Kaprall
had exclusive authority to promote the Program Concept. Lopopolo agreed to speak with Kaprall
regarding the Program Concept. Kaprall then delivered a description of the Program Concept and
a compilation of video footage, created at his expense, from existing footage of Willenberg and
Trockman's weather pursuits to Lopopolo.
On March 3, 2005, Kaprall signed a release form ("Release") provided by WE. The
Release provides: As a policy, WE Women's Entertainment does not accept unsolicited
programming ideas. I [Kaprall] am fully aware of your [WE] current policy that requires that all
materials be submitted through an agent or lawyer. If I do not have representation I must
complete and return this release form to the programming department of WE Women's
Entertainment. I understand that you are regularly in the process of developing new programming
ideas and concepts and frequently have ideas presented in your network. I further understand that
some of these ideas may be the same as or similar to my idea and that you would not like to see
any misunderstanding arise between us. Accordingly, I wish to submit to you for consideration
my programming concepts which are titled Various and were forwarded to you under my letter
dated _____ upon the following terms and conditions:
No obligation is assumed by you nor may be implied against you unless a written
agreement is entered into between you and me regarding the programming concept I submit.
[*3]
In light of the numerous submissions you
receive and your own in-house development, if you now or in the future develop a
program based upon an idea which is the same or similar to the idea I presented, I acknowledge
that I will have no interest in or claim therein (emphasis added).
Upon receipt of the Program Concept and footage, Lopopolo registered the Program
Concept into a database at WE. This registration confirms that Kaprall introduced WE to the
Program Concept and identifies him as its creator. It is undisputed that WE had not previously
received a similar proposal nor was it aware of the existence of the Twister Sisters or Storm
Tours. WE was interested in the Program Concept and notified Kaprall that a signed document
indicating his right to sell the Program Concept was necessary to proceed.
On August 30, 2005, Kaprall entered into a Concept Exploitation Agreement
("Agreement") with Storm Tours, Willenberg and Trockman. This Agreement purportedly
confirms the relationship between the parties and sets forth Kaprall's right to promote and sell the
Program Concept for a period of twelve months until August 30, 2006. In exchange, Kaprall
would attempt to develop the Program Concept into a reality television series.
On that date, Kaprall sent a copy of the Agreement to Lopopolo at WE. Shortly
thereafter, Kaprall was informed by Lopopolo that Steve Cheskin, a vice president at WE, had
informed her that WE would not develop the Program Concept into a series. Kaprall alleges that,
following this notification, Trockman and Willenberg directly and privately communicated with
WE regarding the Program Concept without his knowledge or consent. Kaprall further alleges
that, in the Spring of 2006, an employee of WE, Gina McCarthey ("McCarthey") recommended a
television series about Trockman and Willenberg.
Lopopolo informed McCarthey that the idea had already been submitted by Kaprall,
and was registered in WE's database. Subsequently, in the Summer of 2006, Lopopolo resigned
from WE. Following her resignation, but at an unknown date, the rights to produce a series
regarding Willenberg and Trockman were sold to WE. Kaprall alleges that this sale occurred
during the time the Agreement was in effect, although the formal agreement may have been made
following the expiration of the Agreement.
WE did develop a television series regarding Willenberg and Trockman entitled
"Twister Sisters." Twister Sisters premiered on December 11, 2007. WE's website indicates that
the Twister Sisters are Willenberg and Trockman, and that they are the hosts of the show. The
show follows Willenberg and Trockman as they track and follow extreme weather formations.
Kaprall commenced this action on December 6, 2007. The complaint alleges five
causes of action; to wit: (1) breach of contract against the Minnesota Defendants; (2) breach of
implied covenant of good faith and fair dealing against the Minnesota Defendants; (3) tortious
interference with contractual relations against WE; (4) tortious interference with business
relationships against WE; and (5) quantum meruit for unjust
enrichment against all Defendants. Kaprall claims that, pursuant to CPLR 302, this
Court has jurisdiction over the Minnesota Defendants.
Defendants filed a motion to dismiss this action pursuant to CPLR 3211(a)(1),(5), [*4](7) and (8), asserting that there is no personal jurisdiction in New
York against the Minnesota Defendants. The Defendants further assert that the causes of action
against WE should be dismissed because of the Release signed by Kaprall, or because the
documentary evidence provided clearly establishes a defense to the allegations. Finally, the
Defendants assert that Kaprall has failed to state a cause of action on which relief may be
granted.
DISCUSSION
The standard of review on
a motion to dismiss for failure to state a cause of action is that the allegations in the complaint
are assumed to be true and the plaintiff is accorded "the benefit of every possible favorable
inference and [the court] determine[s] only whether the facts as alleged fit within any cognizable
legal theory." Leon v. Martinez, 84 NY2d. 83, 87-88 (1994). However, "such an assumption must
fail where there are conclusory allegations lacking factual support." Elsky v. KM Ins. Brokers,
139 AD3d 332 (2nd Dept. 1988). In addition, where affidavits have been submitted regarding a
motion to dismiss, the court may consider allegations set forth in the affidavits to remedy any
deficiencies within the pleading. See,Nonnan v. City of New York, 9 NY3d 825 (2007) (noting
that affidavits "are generally intended to remedy pleading defects").
A.Long-Arm Jurisdiction Over the Minnesota Defendants
In order to assert personal jurisdiction over an out-of-state defendant, it must be
shown that the defendant or an agent of the defendant "transacts any business within the state or
contracts anywhere to supply goods or services in the state." CPLR 302(a)(1).New York's
long-arm statute is a "single act statute" that effectively permits personal jurisdiction over a
defendant who never entered New York, if "there is a substantial relationship between the act and
the claim asserted." Kreutter v. McFadden Oil Corp., 71 NY2d 460, 467 (1988). Ultimately,
personal jurisdiction over an out-of-state defendant will comport with due process requirements
where the defendant "avails itself of the benefits of the forum, has sufficient minimum contacts
with it, and should reasonably expect to defend its actions there." Deutsche Bank Securities, Inc.
v. Montana Bd. of Investments, 7 NY3d 65 (2006).
The court must consider the "totality of the circumstances" surrounding the act in
question. Farkas v. Farkas, 37 AD3d 852, 853 (2nd Dept. 2007). If it is established that the
Minnesota Defendants purposefully availed themselves of the benefits of the State of New York,
then personal jurisdiction is appropriate. Fischbarg v. Doucet, 9 NY3d 375, 380 (2007).
"Purposeful activities are those with which a defendant, through volitional acts, avails itself of
the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws." Id. (internal quotations omitted.)
Merely contacting an entity in the State for the purpose of conducting business may
not be sufficient. Compare, Olympus American, Inc. v. Fujinon, Inc., 8 AD3d 76 (1st Dept.
2004) (finding personal jurisdiction over non-domicilliary whose bidding by phone on an auction
in New York "project[ed] himself into local commerce.") with Kimco Exchange Place Corp., v.
Thomas Benz, Inc., 34 AD3d 433 (2nd Dept. 2006) (denying personal jurisdiction over defendant
whose contact with New York was limited to phone calls and the faxing of an executed
agreement back to a New York corporation). The [*5]Kimco court distinguished between merely agreeing to do
business with an entity in New York and "tak[ing] advantage of a field particular to New York."
Id. at 434.
Although the Minnesota Defendants did not physically conduct business in New
York, the facts are sufficient to establish personal jurisdiction over them. The Minnesota
Defendants currently produce a television show that is broadcast by WE. The production of this
show is the result of an agreement between the Minnesota Defendants, and a third-party known
as Original Productions LLC ("Original Productions"), which is not named in this action.
Original Productions was vested with the authority to act on behalf of the Minnesota Defendants
as their agent, to form an agreement to produce the series.
The Minnesota Defendants then acted through Original Productions to purposefully
avail themselves of the benefits of the State of New York, by conducting business with WE. See,
Kreutter v. McFadden Oil Corp., supra at 467 (holding that long-arm jurisdiction may be
established through agency theory where purposeful activities related to the cause of action were
conducted in the state with the knowledge and consent of the defendant and where the defendant
exercised some control over the agent). Original Productions transacted business with WE, with
the knowledge and consent of the Minnesota Defendants. The causes of action asserted by
Kaprall are related to this transaction. Finally, the Minnesota Defendants exercised control over
Original Productions as evidenced by their exclusive rights agreement. Accordingly, invoking of
long-arm jurisdiction over the Minnesota Defendants is proper.
The cases cited by the Defendants do not suggest a different conclusion. Rather, they
support such a finding. In Bellhaven Nursing Center v. Roth, 280 AD2d 570 (2nd Dept. 2001),
the Appellate Division found no personal jurisdiction where the cause of action did not arise
from a transaction within New York. Accord, Precisio Concepts, Inc. v. Bonsanti, 172 AD2d 737
(2nd Dept. 1991). Here, the transaction in which WE obtained the right to produce the show
occurred in New York with a New York agent action on behalf of the Minnesota Defendants.
Finally, in Great Neck Car Care Center Inc. v. Elian, 159 AD2d 484 (2nd Dept. 1990), it was
found that conclusory allegations would not satisfy the requirements for long-arm jurisdiction.
Here, however, Kaprall has pled more than just conclusory allegations that support invoking
long-arm jurisdiction over the Defendants.
While, the mere solicitation of business from a New York corporation may have
been insufficient for personal jurisdiction (see, J.E.T. Advertising Assoc., Inc. v. Lawn King,
Inc., 84 AD2d 744 [2nd Dept. 1984]), the subsequent entry into New York through Original
Productions, caused the Minnesota Defendants to purposefully avail themselves of the benefits of
doing business in this State. They could thus reasonably expect to be haled into court regarding
this activity.
Because the agreement to produce the series with WE appears to be directly linked to the
Minnesota Defendant's relationship with Kaprall, personal jurisdiction over them is appropriate.
B.First Cause of Action Breach of Contract
There can be no dispute with regard to the viability of Kaprall's first cause of action
sounding in breach of contract. In order to state a claim for breach of contract, the plaintiff must
plead the following elements: (1) the existence of a contract between [*6]the plaintiff and defendant; (2) consideration; (3) performance by
the plaintiff; (4) breach by the defendant; and (5) damages resulting from the breach. Furia v.
Furia, 116 AD2d 694. 694-95 (2nd Dept. 1986).
Kaprall has asserted that an agreement existed between himself and the Minnesota
Defendants. The consideration for the agreement was his creating the Program Concept, in
exchange for exclusive rights to it. Moreover, Kaprall performed by actually creating the
Program Concept, and the Minnesota Defendant breached by not honoring the exclusive rights
agreement. Finally, Kaprall has asserted that as a result of the breach, he has suffered damages.
Therefore, taking the pleading in the light most favorable to the Plaintiff, Kaprall has pled a
prima facie cause of action for breach of contract.
Accordingly, the motion to dismiss Kaprall's first cause of action for breach of
contract must be denied.
C.Second Cause of Action - Breach of Implied Covenant of Good Faith and Fair
Dealing
Kaprall's second cause of action is an independent claim for the breach of the
implied covenant of good faith and fair dealing. There is a covenant of good faith and fair dealing
implied in every contract. Dalton v. Educational Testing Services Inc., 46 NY2d 62 (1978); and
P.T. & L. Contracting Corp. v. Trataros Construction, Inc., 29 AD3d 763 (2nd Dept. 2006).
However, New York does not recognize an independent cause of action for breach of the implied
covenant of good faith and fair dealing. Cohen v. Nassau Educators Fed. Credit Union, 12 Misc
3d 1165(A) (Sup. Ct. Nassau Co., 2006), aff'd, 37 AD3d 751 (2nd Dept. 2007).
Because the second cause of action is subsumed in the first cause of action for breach
of contract, it fails to state a claim on which relief may be granted and must be dismissed.
Id.; Parker East 67th Assocs., L.P. v. Minister, Elders and Deacons of the Reformed
Protestant Dutch Church of the City of New York, 301 AD2d 453 (1st Dept. 2003).
D.Third Cause of Action Tortious Interference with Contractual Relations against
WE
In order to state a cause of action for tortious interference with contractual relations,
it must be established that (1) a contract existed between the plaintiff and a third party; (2) the
defendant knew of the contract; (3) the defendant intentionally induced the third party to breach
or otherwise made performance impossible; and (4) the plaintiff suffered damages as a result.
Bayside Carting, Inc. v. Chic Cleaners, 240 AD2d 687, 688 (2nd Dept. 1997).
It is undisputed that Kaprall signed a general release of claim against WE prior to WE's
considering his proposal. CPLR 3211(a)(5) provides for dismissal of a cause of action based on
the execution of a release. A release is a contract, and should be applied under the principles of
contract law. Kaminsky v. Gamache, 298 AD2d 361, 361 (2nd Dept. 2002). The determination of
whether a contract is ambiguous is a question of law and is to be decided by the Court. W.W.W.
Assoc. v Giancontieri, 77 NY2d 157, 162 (1990). The meaning of a release is determined
according to the "context of the controversy being settled." In re Schaefer, 18 NY2d 314, 317
(1966); and Eaton Elec., Inc. v. Dormitory Auth. of New York, 48 AD3d 619 (2nd Dept. 2008).
[*7]
The court will strictly construe the language of a
release against the drafting party. Abramowitz v. New York Univ. Dental Ctr., College of
Dentistry, 110 AD2d 343 (2nd Dept. 1985). However, the court will not write terms or
conditions into a release "under the guise of construction." Tantleff v. Truscelli, 110 AD2d 240,
244 (2nd Dept. 1985), aff'd, 69 NY2d 769 (1987).
Moreover, a party may not create an ambiguity to reflect a different understanding of
otherwise plain meaning within a contract. Petracca v. Petracca, 302 AD2d 576, 576 (2nd Dept.
2003). Accordingly, where the language of a release is clear and unambiguous, the court should
give it full effect. Boateng v. Motorcycle
Safety School, Inc., 51 AD3d 702 (2nd Dept. 2008); and Electronic Bankcard Sys., Inc.
v. Shiner, 305 AD2d 366 (2nd Dept. 2003).
A general release, as distinguished from a covenant not to sue, serves as a bar to all
causes of action which had accrued up to the time of its execution. General Obligations Law
§ 15-108(a). See, Rotondi v. Drewes, 31 AD3d 734 (2nd Dept. 2006); and McMahan & Co.
v. Bass, 250 AD2d 460 (1st Dept. 1998). A covenant not to sue, bars all presently accrued claims
and those which may accrue in the future. See, Wilder v. Pennsylvania R.R. Co., 245 N.Y.36
(1927); and Kaufman v. American Youth Hostels, Inc., 6 AD2d 223 (2nd Dept. 1958).
Kaprall does not assert that the Release is not valid or does not apply to the claims in
question. Rather, Kaprall argues that the language of the Release limits it only to claims that may
arise if WE already had a similar concept being developed or produced.
The Court notes with disapproval Kaprall's misconstruction of the Release. Kaprall's
opposition states that the wording "receive" is actually "received" and therefore,
applies only in the past tense. (emphasis added) The language within the Release attached to
Kaprall's own motion has clearly been misquoted in a manner that favors his own interpretation.
Despite Kaprall's misstatement, Defendants also refer to a general Release and not a
covenant not to sue. The effect of such a Release would be to prevent Kaprall from bringing a
suit regarding any claims which accrued up to the signing of the Release. However, if the
document is a covenant not to sue then the effect would be to prevent Kaprall from suing WE.
It is not the appropriate time for a determination of the factual question regarding the
effect of the Release. Therefore, taking the pleading in the light most favorable to Kaprall, a
claim with regard to an event which occurred after the execution of the Release may be
maintained. Accordingly, the motion to dismiss the cause of action for tortious interference with
a contractual relationship must be denied.
E.Fourth Cause of Action Interference with a Business Relationship
"To make out a claim for tortious interference with a business relationship, a plaintiff
must show that the defendant interfered with the plaintiff's business relationships either with the
sole purpose of harming the plaintiff, or by means that were unlawful or improper." 71 Pierrepont
Assocs. v. 71 Pierrepont Corp., 243 AD2d 625, 663 (2nd Dept. 1997), quoting Nassau
Diagnostic Imaging & Radiation Oncology Assocs. v. Winthrop-Univ. Hosp., 197 AD2d
563, 563-564 (2nd Dept. 1993).
[*8]
A "general release [is] clearly operative not only
as to all controversies and causes of action between the releasor and releasees which had, by that
time, actually ripened into litigation, but to all such issues which might then have been
adjudicated as a result of pre-existent controversies." Lucio v. Curran, 2 NY2d 157, 157 (1956);
and Used Boat Haven Inc. v. Citibank, N.A., 248 AD2d 610, 610 (2nd Dept. 1998).
However, as there is a dispute about the effect of the Release, dismissal of this cause
of action would be premature. Kaprall should be given the opportunity to establish the effect of
the Release. Accordingly the motion to dismiss the cause of action for tortious interference with
a business relationship must be denied.
F.Fifth Cause of Action Quantum Meruit / Unjust Enrichment
"In order to make out a claim in quantum meruit, a claimant must establish (1) the
performance of the services in good faith, (2) the acceptance of the services by the person to
whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable
value of the services." Geraldi v. Melamid, 212 AD2d 575, 576 (2nd Dept. 1995). The Plaintiff
must establish that the services were performed at the request or behest of the defendant. Clark v.
Daby, 300 AD2d 732 (3rd Dept. 2002); Prestige Caterers v. Kaufman, 290 AD2d 295, (1st Dept.
2002); and Lakeville Pace Mechanical, Inc. v. Elmar Realty Corp., 276 AD2d 673, (2nd Dept.
2000).
However, where an express agreement exists between the parties, the rights and
liabilities, as between them, should be determined based on a contract theory. Apfel v.
Prudential-Bache Sec., Inc., 81 NY2d 470, 479 (1993). Therefore, the performance required by
the terms of an express contract, will preclude recovery in quantum meruit. Mary
Matthews Interiors, Inc. v. Levis, 208 AD2d 504, 506 (2nd Dept.1994).
As to WE
Kaprall has alleged that he provided WE with the service of introducing the
Program Concept to it, and that WE subsequently purchased the rights to the Program Concept.
In addition, Kaprall has indicated that he had an expectation of being compensated for his work
developing and marketing the Program Concept.
WE has argued that the Release precludes Kaprall from bringing a suit. However, the
effect of the Release is yet to be determined. WE informed Kaprall that in order to purchase the
production rights, it would be necessary for him to obtain an agreement for exclusive rights to
produce the Program Concept. At WE's request, Kaprall obtained the Agreement to enable the
sale. Subsequently, WE purchased the production rights to the Program Concept from Original
Productions.
WE's argument that the release precludes this claim is not persuasive. Subsequent to
the execution of the release, WE requested that Kaprall obtain an agreement for exclusive rights.
Therefore, if the release only applies up until the date of its execution, the release would have no
impact on subsequent actions taken by WE with regard to Kaprall. General Obligations Law
§ 15-108(a). See, Rotondi v. Drewes, supra; and McMahan & Co. v. Bass,
supra. Kaprall has alleged all the necessary elements to recover in quantum
meruit;therefore the cause of action cannot be dismissed.
[*9]As to the Minnesota Defendants
Where an express agreement exists between the parties, the rights and liabilities,
as between them, should be determined based on a breach of contract theory. Apfel v.
Prudential-Bache Sec., Inc., supra. Therefore, if a service is required by the terms of an
express contract, there can be no recovery in quantum meruit. Mary Matthews Interiors,
Inc. v. Levis, supra at 506.
A cause of action
for recovery in quantum meruit must be dismissed "where the suing party has fully
performed on a valid written agreement, the existence of which is undisputed, and the scope of
which covers the dispute between the parties." Clark-Fitzpatrick v. Long Island Rail Road Co.,
70 NY2d 382, 389 (1987). See also, Battery Park Realty, Inc. v. RKO Delaware, Inc., 18 AD3d
690 (2nd Dept. 2005); and Cooper, Bamundo, Hecht, & Longworth, LLP v. Kuczinski, 14 AD3d
644 (2nd Dept. 2005).
Kaprall alleges in his complaint that an agreement existed between Trockman and
Willenberg and himself. This Agreement allegedly set out the rights and liabilities as between
Kaprall and them with regard to the production rights of the Project Concept. Although the
Agreement was not provided to the Court, there is no evidence that refutes the allegation that
such a contract exists. The Court must assume that such an Agreement does exist and its terms
will be determinative with regard to Kaprall's breach of contract claim.
Kaprall sufficiently pled the necessary elements to state a cause of action for breach
of contract. His pleading indicates that there was an agreement between the Minnesota
Defendants and him. The agreement was for Kaprall to develop and market the Program Concept
in exchange for a portion of any compensation received if the Program Concept was purchased.
Kaprall performed his obligations under the agreement by developing and marketing the Program
Concept to WE. Finally, as a result of the Defendants' alleged failure to perform their obligations,
Kaprall has alleged that he suffered damages. Accordingly, the cause of action for quantum
meruit is both duplicative of the breach of contract claim and unnecessary, warranting
dismissal of this cause of action. See, Clark-Fitzpatrick v. Long Island Rail Road Co., supra
at 389.
Accordingly, it is,
ORDERED, that Defendants' motion to dismiss the complaint pursuant to CPLR
302(a)(1) as against Willenberg, Trockman and Storm Tours is denied; and it is further,
ORDERED, that Defendants' motion to dismiss the complaint is granted to the
extent of dismissing the second cause of action as to all Defendants, and the fifth cause of action
as to the Minnesota Defendants and is in all other respects denied;
ORDERED, that counsel for the parties shall appear for a preliminary conference on
September 26, 2008 at 9:30 a.m.
This constitutes the decision and order of this Court.
Dated: Mineola, NY
August 7, 2008
_______________________________
Hon. Leonard B. Austin, J.S.C.