Telamerica Media, LLC v Sound Communications, Inc.
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Telamerica Media, LLC v Sound Communications, Inc. 2011 NY Slip Op 33597(U) December 31, 2011 Supreme Court, New York County Docket Number: 110898/2009 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 212212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK C Q U N N 7 PRESENT: PART . . TELAMERICA MEDIA, LLC, INDEX NO. - againqt- Plaintiff, I 10894l~OOO MOTION DATE MOTION EEQ. NO. 001 SOUND COMMUNICATIONS, INC., MOTION CAL. NO. Defendant, The following papers, numbered 1 to 3, were tead on this rnstion by plalntiff for wmmary judgment, pursuant to CPLR 3212. I Notice of Motion/ Order to Show Cause -Affidavits Anqwerlng Affidavits - PAPER3 NUMBERED - Exhibits (Methd) Replying Affidivits (Reply Memo) 3 F m 2 J 2012 Cross-Mation: Uyes In this action for breach of contract, account r w v Y( \I w -rY ' ~ t iir':; qt F ICE - %kN an& af/orney s fees, Telarnerica Media LLC (plaifitiff) rr(oves, pursuaht to CPLR 3212, for an order granting it summary judgment oh its complaint against defendant: Saund Communications, Inc. BACKGROUNP Plaintiff owns a number of cable networks that sell advertising time tp variws advertising agencies. Sound Communications, Inc. (defendant) Qperates an advertising agency that represents various advertisers seeking placement for their advertisements in markets I across the cauntry. The following facts are undisputed. On June l q , 2607, plaintiff and defendant entered intQ an advertising contract (the Agreement). As per the Agreehent, plaintiff would place advertisements for t h e comparly Rack 'N Roll LLC on various cable networks for a period beginning July 9, 2007, and ending on July 29, 2007 (the media buy). The parties agreed that the media buy had a gross cost of $150,070. The parties also agreed that defendant was [* 2] erltitkd tb 15% &bmWlissiUh of the ddvertisbment cost and plaifltiff would receive the remaining 85%. In addition to the advertising costs, the Agreement further provided that there would be an integration fee of $1,000 paid to defendant. Thus, the net cost of advertisement to defendant wquld tqtal $127,551 .OQ. Oe July 15, 2007, defendant requested that plaintiff cease all advertisement on its bdhalf and cancel the remainder of its spots scheduled to air. On July 29, 2007, plaintiff issued an invqice in the amount of $127, 951. Defendant subsequently disputed the amount owed asserting that plaintiff failed to adjust the invoice following its cancsllation of it$ media buy as of July 15, 2007. Defendant also requested that plaintiff provide it with the dates, times, and broadcast stations on which the advertisements aired. On or about October 10, 2007, plaintiff prepared a post-buy analysis report which demonstr9ted that only 68.73% of the advertisements conttacted for, actually aired. Acqordingly, plaintiff issued defendant a revised invoice in the amount of $103,740. To date, defendant has failed to remit payment. Plaintiff subsequently commenced this action based upon the theories of breach of contract and aCcOunt stated. Plaintiff also seeks an award of damages, together with finance charges at 18% per Annum from July 29, 2007, attorney s fees I tptaling $26,785, a d cost$ aqd Bisburwments. I Plaintiff argues that it is entitled to sumrqaryjudgment because: (1) it met its obligations under the Agreement and is owed the contracted amount, (2) defendant haS failed to remit any monies to plaintiff, (3) pursuant to the Agreement, plaintiff is entitled to attorney s fees following defendant s fdilure to pay the amounts dwed, and (4) under paragraph 3 of the Agreement, defendant, as advertiser, is jeintly andlaeverally liable to plaintiff for any unpaid balance despite defendant s argument that it was acting as an agent for a disclosed principal. In opposition, defendant argues that plaintiff is ngt entitled to summary judgment because: (1) plaintiff failed to submit ah affidavit from a party with direct knowledge of the facts I sypporting its mntian, (2) the invqices qubmitted by plaintiff fail to oamply with industry Page2of 7 I [* 3] standards-for affidavits of performance, (3) there is a dispute as to-the amount owed as the amount fails to account for defendant s fees which are undisputedly included within the invoiced amount, (4) defendant canceled its media buy on July 15, 2007, (5) plaintiff continukd to run advertisements following defendant s cancellation, and (6) plaintiff ran advertisements beydnd the scope of the Agreement. SUMMARY JUDGMENT STANDARD Summary judghent is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp,, 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgmeht must make a prima facie Shpwing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form dembnstrating the qbsence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]) A failure to make such a Showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJl lndus., lnc., 10 NYad 733, 73s [2008]). Onoe a prima facie sh4wing has been made, however, the burden shifts to the ngnmoving I party ts pwduce evidentivy probf in admissible form sufficient to estgblishlthe existence qf material issues of fact that require a trial for resolution (Giuffrida v Citibdnk Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NYZd 557, 562 [1980]; CPLR 3212 When deciding a slimmary judgment motion, the Court s r d e is splely to determine if any triable issues exist, not t4 determine the merits of any such issues (see Sillman v Twentieth 1 Century-Fox Film Corp., 3 NY2d 395, 4Q4 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmovipg party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, lnc., 65 NY2Q 625, 626 [;1985]). If there is any daubt as to the existence gf a triable issue, summary Page3of 7 [* 4] judgment should be denied (see Rotuba Extruders, Inc. v C ~ p p o s46 NY2d 228,. 231 [1978]). , DISCUSSION Plaintiff has failed to establish its entitlement to summary judgment. A question of fact exists as to the amounts owed under the Agreement. Plaintiff similarly failed to prove, as a matter of law, the ?mount of the reasonable attorney s fees to which it would be entitled undbr section 2 of the Agreement. An account stated is an agreement between the parties to an account based upon priw transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other (Sheq &I Gould v Burr, 194 AD2d 369, 370 [I Dept 19931). Furthermore, receipt and retentioe of plaintiff s accounts, st without objectiqn within a reasonable time,land agreement tQ pay a partion of the indebtedness, I gives rise to an aqtionable account stated (id.), Plaintiff failed to establish its entitlement to recovery based on an account stated. The very meaning of an account stated is thgt the parties havq come together and agreed upon the balance of indebtedness . . . so that an action to recover the balahce as upon an implied promise of payment may thenceforth be maintained (Herrick, Feinstein LLP, v Stamm, 297 AD2d 477, 478 [I st Dept 20021 [internal citations omitted]). The parties have failed to come together and agree upon the balance of indebtedness because the defendant disputed the revised invoice immediately after receiving it. Defendant disputes the accuracy and legitimacy of the invoices, the number of advertisements aired and whether the advertisements it contracted for actually aired in accordance with the Agreement. The record demonstrates that defendants were sent an invoice on July 29, 2007, in the amount $127, 551 (Affidavit of Jonathan Batt exhibit E, dated April 12, 201 I ) (Batt Aff.). Defendant immediately objected to the amount of indebtedness because the invoice did not reflect its cancellation of spots on July 15, 2007 (Affidavit of Scott Semaya, dated June 03, Page4of 7 [* 5] I 201 I ) (8emaya Aff.). As stated above, in response to defendant!s.9~je9tioss, plaintiff shbmitted a revised bill in the amount of $103,140. Defendant still objected to the amount of the invoice and subsequently requested that plaintiff provide a cdpy of an electronic affidavit rl from each cable station in order to verify that the advertisements indeed aire d as scheduled. Plaintiff failed to comply with defendant s request. Instead, it provided 2 single page documept, a post-buy analysis statement, which described the number of units that ran on each of the five cable netwwks during the buy, the rate for each unit: aired, and the total cQSt of that advertising campaign (Exhibit 0 to Batt Aff.). However, plaintiff $ submission failed to include a detailed description of the dgtes, times, and content of the commerciats aired (id.), I t There is, also no account stated becguse the parties also failed to agree upqn the balance of indebtedness in regard to the gross and net amounts due under the Agreement. Steven Sackler, defendant s president, contends that the invoice did not reflect the proper amounts owed because pursuant to the Agreement, the negotiated gross amount of the media buy totaled $150,070. Howeyer, defendant was entitled to 15% of the gro ss amount as a fee for secut ing the ads and the remaining 85% would be paid to plaintiff as the net ahount I ven Sacklqr, datqd June 3, 201 I) (Saqhler Aff.). Defendant argue? thgt the gross and net amounts of the Agreement were altered following its July 15thcancellation, D,efendant further alleges that it asked plaintiff to provide an affidavit of performance, an industry standard document, detailing the date and time each spot ran, in addition to the name of the network on which it aired (id.). Based on the lack of documentation confirming that its spot$ actually aired as contracted prior to the cancellation, defendant challehg es the s u m owed tb plaintiff. In its reply papers, plaintiffs executive vice presidentlchief finan cial officer, Jonathan Batt, avers that defendant correctly asserts that it is entitled to a payment of 15% of the gross $voice (Affidavit of Jonathan Batt, dated June 23, 201 I) (Batt Aff. It). Accordingly, plaintiff now Page5of 7 [* 6] concedes that dkfendant owes $87,669.00, not $1 03,140. Hbwwer, this acknowledgment still fails to address defendant s concerns as to whether the advertisements ran on the stations and during the times for which it contracted. The paucity of evidence submitted in support of plaintiffs motion for summdry judgment, in addition to the disputes over the amounts owed to plaintiff under the Agreement, do not warrant this Court to direqt judgment in plaintiff s favor. Consequently, this Court finds that plaintiff has failed to meet its burden of establishing its entitlement to summary judgment as a matter of law on its Amended Verified Complaint. On the issue of reasonable attorneys fees, plaintiff has, failed to demonstrate, as a matter of law, the amount of the reasonable attorney s fee$ under the Agreement (8709 Pizzeria of New York, Inc. v Palo Pizza One Corp., 67 AD3d 627, 629 [2d Dept 20091). Paragraph 2 (b) (ii) of the Agreement provides in part: in connection with any breach by Agency or Advertiser, Cableconnect shall be entitled to its casts of collection includirlg, without limitatiw, court costs, reasonable attdrney s fees and ather related cost5 and expenses (Batt Aff., exhibit C). Plaintiff has not demonstrated why it is entitled to $25,785.00 (25% of the alleged outstanding &lance) as reasonable attorney s fees. Plaintiff s attorney alleges that he worked a total of 40 hours to date on this case, at a rate of $350.00 per hour. Accordingly, plaintiff- would be entitled to $14,000 in attorney s fees (Affirmation of William M.Stein, dated April 12, 2009) (Stein Aff). There are no additional invoices or submissions in the record to substantiate the additiqnal $1 1,785 plaintiff IS currently seeking in qttorney s fees. Moreover, the information that was provided failed to detailllist the billable hours next to the description of each of the services rendered therein (id.). It is impossible to determine from the record how plaintiff arrived at the 40 billable hours to establish its entitlement to attorney s fees. Consequently, plaintiff has failed to set forth evidence sufficient to make out a prima facie entitlement to the attorney s fees sought on the theories contained within its complaint (Abramson v Hertz, 19 Page6of 7 [* 7] 3 AD3d 305, 306 [ I s t Dept 20051). Furthermore, the issue of reasonabte attorneys fees is premature until there has been a finding of a breach of the Agreement. Accordingly, it is ORPERED that the motion for summary judgment is denied; and it is further, ORDERED that this action is referred back to the Motion Support Office for reassignment to Justice Kornreich, who has a related matter bearing Index number 107817/200#. T'his cdnstitutes the Dated A Check one: 0FINAL DISPOSITION Check if appropriate: I Paul Wooten J.S.C. NoN-FINAL DISPOSITION 0 6 0 NOT POST Page 7 of 7
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