Plaintiff Jennifer Tyrie Hinge filed the instant action on January 19, 2022, seeking $5,000 in damages against the Defendant Michael Dezotell d/b/a Orchard Grove Farms for Defendant's failure to deliver wedding services as contracted. The matter ultimately proceeded to trial on April 7, 2022.

There was no substantial factual difference in the testimony. Both parties agree that the Plaintiff contracted with the Defendant on or about September 11, 2019, to provide a wedding venue and made two payments totaling $5,411.42. Then the COVID-19 pandemic put an end to public gatherings pursuant to public health orders by the Governor which are a matter of public record and common knowledge. It appears that early on in the pandemic that Defendant attempted to transfer the business to Valerie Longo d/b/a Blush Enterprises by transferring the phone lines and Ms. Longo holding herself out to the world as the successor in interest to the Defendant Orchard Grove Farms. Ms. Longo had previously been employed by Orchard Grove Farms. At some point Plaintiff signed up for a wedding date of August 21, 2021, with Ms. Longo. As the COVID-19 restrictions began to be lifted in 2021, the venue (either Orchard Grove Farms or Blush Enterprises) began scheduling weddings. By September 28, 2020, it became clear from Ms. Longo's email to the Plaintiff that the business transfer from Orchard Grove Farms to Blush Enterprises was a failed endeavor. Although Ms. Longo continued to [*2]provide wedding services as an employee of Orchard Grove Farms, the Plaintiff's wedding was not scheduled. In that same email chain, Patricia Tyrie sent an email to Plaintiff which stated, among other things, "PS- Jen, you made a good decision to not host your wedding there this year. Patty" which seems to indicate that Plaintiff had already made the decision not to have her wedding at the Defendant's location even before she knew the full extent of the failed business transfer.

The Court must adjudicate this claim in in such manner as to do substantial justice between the parties according to the rules of substantive law (UCCA § 1804).

The general rule in New York as it relates to the assignability of contracts is that "any property right, not necessarily personal, is assignable, is overcome only by agreement of the contracting parties or a principle of law or public policy" (Rosenthal Paper Co. v. National Folding Box & Paper Co., 266 NY 313, 325 [1919]).

It appears that the contract in the case at bar is a mixed general and personal services contract. To the extent that the contract is for the use of the land, it is generally assignable. However, the contract in paragraph number 5 details the provision of food and catering as well as generally prohibiting outside food and drinks as discussed in paragraph number 6. These services make it a partially personal or mixed use contract. Irrespective of their obligations under common law, the parties expressly agreed that the contract could be assigned. For example, the PREFACE by its terms contemplates that it is enforceable by "successors and/or assigns". The PREFACE goes on to state "At times, it may be essential and necessary for Orchard Grove Farms to arrange for the services of independent contractors to manage, provide services and/or operate Orchard Grove Farms and assist Orchard Grove Farms in its goal of functioning as an even venue for Weddings/Receptions and other events." Therefore, the Court finds that the attempted — albeit failed — attempt to transfer the business from Orchard Grove Farms to Blush Enterprises was a proper assignment on the part of Orchard Grove Farms.

The remaining question is whether the circumstances surrounding Defendant's failed business transfer was a material breach of the contract thereby giving Plaintiff the right to demand a refund. It appears the contract addresses client refunds in two places. Paragraph 1.3 states "Event Cancelation. If your event is cancelled due to no fault of Orchard Grove Farms, the entire deposit will be retained by Orchard Grove Farms" (emphasis added). Paragraph 3 states "CANCELLATIONS: In the event of a cancellation, all monies paid to Orchard Grove Farms are non-refundable." On the one hand, it appears that the Plaintiff decided prior to the September 28, 2020, email from Ms. Longo not to go forward with having her wedding at Orchard Grove Farms. On the other hand, this decision seems to be based in some part with the problems that Defendant encountered with Ms. Longo during the business transfer which was certainly solidified by the language in Ms. Longo's email correspondence. "Generally, a master (principal or employer) is responsible for the tort of his servant (agent or employee) when the servant commits the tort within the scope of employment." (Hoffman v. Ryan, 101 Misc 2d 845 [1979] [internal citations omitted]). This means that Defendant is liable for the actions of Ms. Longo as both an employee as well as her conduct with respect to the contract that was assigned to Ms. Longo and then re-assigned back to Defendant after the failed business transfer. This Court must now decide and apportion relative fault in a way that will do substantial justice under [*3]these facts. This Court is uncomfortable with allowing Plaintiff to get the full refund back because it appears that she may have already decided not use the Defendant's wedding venue before the unpleasant details of the failed business transfer were completely revealed to her. This Court is equally uncomfortable with allowing the Defendant to keep the full deposit because it appears that Defendant's own agent Ms. Longo caused in some way the Plaintiff to be uncomfortable with the Defendant's services through lack of communication and painting the wedding venue in a bad light.

This Court finds that substantial justice according to the rules of substantiative law will be accomplished by assigning fault to both parties. Accordingly, this Court will award judgment for the Plaintiff in the amount of $2,500.

Therefore, it is hereby ORDERED:

1. Judgment will be entered against the Defendant in the amount of $2,500.

2. No costs will be awarded because the Defendant was successful in reducing the amount of the calculated damages.

This is the Decision and Order of the Court.