FACTUAL BACKGROUND

Defendant ^[FN1] moves, pursuant to CPLR 3212, to dismiss the sole cause of action remaining in this lawsuit, based on an allegation of a breach of contract. The other causes of action in this lawsuit were dismissed by order of this court on January 16, 2006. Plaintiff cross-moves for an extension of time in which to oppose the instant motion, and for recusal of the Hon. Shirley Werner Kornreich from this matter. Justice Kornreich granted that portion of plaintiff's motion to recuse herself on May 7, 2009.

The facts of this case have been discussed in the previous motion to dismiss, and need not be reiterated here in detail. The instant motion concerns an alleged oral agreement between plaintiff, who is an attorney acting pro se, and Michelle Morgan Bolton (Bolton), a reporter for the Albany Times Union, a newspaper owned by defendant. According to plaintiff, he met with Bolton and provided her with tapes of a conversation he had with the Hon. Howard A. Levine (Judge Levine), a retired judge of the New York Court of Appeals, who now is a member of the New York State Commission on Public Integrity, and who established the Independent Mediation Assistance Program (IMAP) to provide assistance to alleged victims of sexual abuse by a current or former priest or deacon of the Albany Roman Catholic diocese. The subject conversation between plaintiff and Judge Levine concerned a settlement between the church and five alleged victims of sexual abuse.

According to plaintiff, an attorney who represents such alleged victims, he provided the [*2]tapes of the conversation to Bolton, under an oral agreement of embargo,^[FN2] meaning that Bolton would not publish a story based on those tapes for a period of time. Plaintiff asserts that he needed time to get the tapes to other news outlets. It is noted that none of the five individuals who settled with the church in the subject instance were clients of plaintiff.

As alleged by plaintiff, in derogation of this embargo, Bolton published the story on February 5, 2006, which caused him to lose 14 clients, suffer loss of future business, and damaged his reputation.

In her examination before trial (EBT), Bolton denied that she ever agreed or discussed an embargo with plaintiff (EBT, at 51, 69-71, 73, 102), and further stated that she obtained details of the settlements directly from Judge Levine in a telephone conversation that she had with Judge Levine (id. at 55-56). Additionally, Bolton stated that she had called plaintiff the night before the article was to appear to alert him to the publication (id. at 104-105), but that he never called her back to complain about a breach of an embargo.

According to Judge Levine's affidavit, attached as an exhibit to the moving papers, the taped conversation he had with plaintiff was never intended to be confidential, and several other people were present at that conversation. Judge Levine also confirmed the telephone conversation he had with Bolton, to which Bolton referred in her EBT.

Rex Smith (Smith), the vice president and editor of the Albany Times Union, provided an affidavit with the motion papers to the effect that an embargo is a "gentlemen's agreement" not to publish certain information for a specified period of time, and that it is very rarely used. He further stated that it is the common practice in the news industry that, if embargoed information is obtained from an independent source, the news media is free to publish the story. Smith further attested to the fact that, at the Times Union, a reporter does not have the authority to agree to a news embargo.

The only written evidence of any purported embargo are four letters that plaintiff sent out after his visit with Bolton. These letters appear in a fax with a cover letter that stated that the four letters, between plaintiff and Judge Levine, were "under embargo for at least a week." The fax referenced the tapes, but did not specifically state that they were also embargoed. Bolton never responded to this fax sent by plaintiff.

At his EBT, plaintiff stated that he thought he remembered talking about an embargo for maybe 10 days, or two weeks at the outside (EBT, at 140). He also states that he "thought" the tapes were embargoed (id. at 2). In his interrogatory responses, plaintiff admitted that he spoke to Bolton about his discussion with Judge Levine before he knew whether Bolton would agree to an embargo. Motion Ex. 10.

Plaintiff has been precluded from offering the testimony of five of the clients who allegedly fired him as a result of the publication of the article. Motion Ex. 4. Seven of the other [*3]named former clients of plaintiff have submitted affidavits that they did not fire plaintiff as a result of the article. One of the other named former clients was present at the meeting with Judge Levine and plaintiff, and plaintiff filed a lawsuit on that client's behalf two months after the article appeared. According to a handwritten letter produced by plaintiff during discovery, the fourteenth client stated: "John, I don't want to, but my circumstances require that I use the church program." Motion Ex. 14.

In his EBT, plaintiff admitted that his client base doubled from the time of the publication of the article until the date of his deposition in August, 2006 (EBT, at 71, 214, 270).

DISCUSSION

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

Plaintiff's cross motion seeking additional time in which to oppose the instant motion is denied. Pursuant to a stipulation entered into between the parties on March 16, 2009, defendant granted plaintiff a two-week extension to respond, in consideration of plaintiff agreeing not to seek any further extensions of time regarding the instant motion. Since plaintiff has availed himself of that two-week extension of time, the court will enforce the remainder of his agreement.

Defendant's motion to dismiss the sole remaining cause of action for breach of contract is granted.

The court must first determine whether an enforceable contract exists between the parties. To find an enforceable contract, there must be

"a sufficiently definite offer such that its unequivocal

acceptance will give rise to an enforceable contract ... .

[D]efiniteness as to material matters is of the very

essence of contract law. Impenetrable vagueness and

uncertainty will not do [internal quotation marks and

citations omitted]."

Matter of Express Industries and Terminal Corp. v New York State Department of Transportation, 93 NY2d 584, 589-590 (1999); see also Cobble Hill Nursing Home, Inc. v Henry & Warren Corp., 74 NY2d 475 (1989).

Further, "[m]utual assent to all of the material terms proposed is essential to the formation of a contract." Stockland Martel, Inc. v Donald J. Pliner of Florida, Inc., 32 AD3d 779, 782 (1st Dept 2006).

In the case at bar, plaintiff himself admits that he was vague and uncertain as to the duration of the purported embargo (180 Water Street Associates, L.P. v Lehman Brothers Holdings, Inc., 7 AD3d 316 [1st Dept 2004] [vagueness with respect to the duration of a contract [*4]renders it unenforceable]), and admits that he informed Bolton about the settlements with the church and his discussion with Judge Levine before he allegedly mentioned an embargo. Except for plaintiff's assertions, there is no other evidence of any agreement on Bolton's part to embargo the information, and Bolton flatly denies that she ever agreed to any embargo.

In addition, the affidavits submitted with the instant motion, uncontroverted by plaintiff, indicate that even embargoed information may be published if obtained from an non-embargoed source. Both Bolton and Judge Levine, who is a disinterested non-party to the action, state that the information was not confidential, and that Judge Levine freely discussed the settlements with Bolton. Furthermore, plaintiff was informed about the article being published the day before publication, and, at that time, did not contact Bolton or anyone else at the newspaper regarding the alleged embargo.

"[T]he Court is reluctant to enforce vague, oral contracts where [d]efendant's First Amendment rights might be affected." Kusek v The Family Circle, Inc., 894 F Supp 522, 528 (D Ma 1995).

Nevertheless, even if the court were to find that a contract did exist between the parties, plaintiff is unable to demonstrate any damages resulting from its alleged breach.

"Where a party has failed to come forward with evidence sufficient to demonstrate damages flowing from the breach alleged and relies, instead, on wholly speculative theories of damages, dismissal of the breach of contract claim is in order." Lexington 360 Associates v First Union National Bank of North Carolina, 234 AD2d 187, 190 (1st Dept 1996).

As discussed above, plaintiff's allegations that he lost 14 clients based on the publication of the article in the Albany Times Union cannot be proven, both because of the preclusion order with respect to five of those clients, and the affidavits of the other clients that belie plaintiff's assertions.

Similarly, plaintiff's assertion of lost future business cannot be evidenced.

"Loss of future profits as damages for breach of contract

have [sic] been permitted in New York under long-established

and precise rules of law. First, it must be demonstrated

with certainty that such damages have been caused by the

breach and, second, the alleged loss must be capable

of proof with reasonable certainty. In other words, the

damages may not be merely speculative, possible or

imaginary, but must be reasonably certain and directly

traceable to the breach, not remote or the result of

of intervening causes. In addition, there must be a

showing that the particular damages were fairly within

the contemplation of the parties to the contract at the

time is was made [internal citations omitted]."

Kenford Company, Inc. v Dome Stadium, Inc., 67 NY2d 257, 261 (1986).

In the instant case, not only is there no evidence that loss of plaintiff's future profits was contemplated at the time he spoke to Bolton, but plaintiff has testified to the fact that, in the two years following publication of the article, his client base almost doubled. Consequently, plaintiff has failed to demonstrate damages resulting from lost profits. [*5]

Finally, plaintiff's last assertion with respect to damages suffered, the loss of his reputation occasioned by the alleged breach of contract, must fail as a matter of law, because such damages are not actionable in New York. MacArthur Construction Corp. v Coleman, 91 AD2d 906 (1st Dept 1983); Landorf v Glottstein, 131 Misc 2d 432 (Sup Ct, NY County, 1986) affd 127 AD2d 1016 (1st Dept 1987).

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that plaintiff's cross motion is granted with respect to the recusal of the Hon. Shirley Werner Kornreich from this case, but is denied in all other respects; and it is further

ORDERED that defendant's motion for summary judgment dismissing the last remaining cause of action for breach of contract is granted, with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that counsel for defendant shall serve a copy of this order with notice of entry within twenty days of entry on counsel for plaintiff.

Dated: August 3, 2009

ENTER:

_____________________________

Carol Robinson Edmead, J.S.C.

The instant motion is decided in accordance with the annexed Memorandum Decision. It is hereby

ORDERED that plaintiff's cross motion is granted with respect to the recusal of the Hon. Shirley Werner Kornreich from this case, but is denied in all other respects; and it is further

ORDERED that defendant's motion for summary judgment dismissing the last remaining cause of action for breach of contract is granted, with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that counsel for defendant shall serve a copy of this order with notice of entry within twenty days of entry on counsel for plaintiff.