Berenbaum v Joffrey Ballet Ctr. for Am. Dance, Inc.
2012 NY Slip Op 31021(U)
April 13, 2012
Supreme Court, New York County
Docket Number: 108552/11
Judge: Doris Ling-Cohan
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publication.
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[* 1]
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
DORIS LING-COMAN
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[* 2]
SUPREME COURT O F THE STATE O F NEW YORK
COUNTY O F NEW YORK: PART 36
X
- - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _
BETH D. BERENBAUM,
Plaintiff,
Index No. : 1 0 8 5 5 2 / 1 1
-againstMotion Seq. 001
JOFFREY BALLET CENTER FOR AMERICAN
DANCE, INC. d/b/a JOFFREY BALLET SCHOOL,
JOFFREY BALLET CENTER, INC. d/b/a
JOFFREY BALLET SCHOOL and CHRISTOPHER
D ADDARIO,
'
Defendants move, pursuant to CFLR 3211 (a) (1) and ( 7 ) , to
dismiss the complaint.
Plaintiff cross-moves, pursuant to C P L R
3 0 2 5 (b), f o r l e a v e to amend the complaint to add Center f o r
American Dance, Inc. as an additional defendant.
BACKGROUND
According to the complaint, on January 4, 2010, defendants
hired plaintiff to set up and implement certain summer programs
for their students and to help rewrite certain policies,
procedures and practices.
Motion, Ex. A.
On January 6, 2010,
defendant Christopher D Addario (D'Addario) , the Joffrey Ballet
'
School's executive d i r e c t o r , thanked plaintiff in writing for her
work.
Complaint,
¶
24.
Plaintiff alleges that defendants owe
her $2,000.00 for this w o r k .
Id.
¶ 25.
On January 25, 2010, D'Addario sent plaintiff an e-mail
1
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indicating that defendants had a j o b offer for h e r f o r part-time
work, and plaintiff accepted the offer and began such employment
on February 5, 2010.
I d . , ¶ ¶ 26-27.
Plaintiff's initial task
was to begin finding, booking and scheduling activities for the
Joffrey Ballet School New Y o r k City (2010) Summer Intensive
Program, for which plaintiff was paid $2,000.00.
Id.,
¶¶
30-31.
Plaintiff alleges that, in addition to this w o r k , defendants
a s k e d her to perform additional duties, f o r which defendants
agreed, in writing, to pay her $175.00 p e r activity that actually
occurred, unless the activity was an outdoor event exceeding 2 0 0
students, in which case plaintiff was to be paid $200.00 per
event.
Id.,
34-35.
¶¶
According to plaintiff, 25 such events
took place, for which plaintiff contends defendants owe her
$4,375.00.
Id.,
¶¶
37-38.
The complaint also alleges that defendants asked plaintiff
to perform similar duties for their Miami summer program.
Plaintiff asserts that she did perform such duties, for which
defendants owe her the sum of $ 1,800.00.
Id.,
¶¶
39-44.
On or about April 18, 2010, defendants began discussing
hiring plaintiff on a full-time basis, and plaintiff accepted
such employment on April 19, 2010, on an "at-will" basis,
pursuant to a six-month contract at a salary of $60,000.00 p e r
year.
Id.,
¶¶
45-51.
Plaintiff states that, on November 15,
2010, prior to the expiration of her contract, defendants
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unilaterally cut her pay by five percent, without prior notice,
and, on December 27, 2010, one month after the expiration of her
contract, defendants terminated plaintiff's employ.
55.
Id.,
¶¶ 54-
Plaintiff avers that she made a written demand for payment
of her unused vacation and sick/personal days, personal
disbursements she made on behalf of defendants, plus the five
percent contract differential, but that defendants never
responded.
The complaint asserts.three causes of action: (1) unpaid
wages and disbursements under New York State Labor Law and the
federal Fair Labor Standards Act; (2) breach of contract; and (3)
unjust enrichment.
The contract that forms the basis of this litigation was
entered into by plaintiff and Center for American Dance, Inc.
d/b/a Joffrey Ballet School, signed by plaintiff and D'Addario as
Executive Director, and states, in pertinent part:
"the parties intend to create and enter into an 'employmentat-will' relationship . . . . Joffrey makes no warranties
or representations with regard to t h e duration of the
engagement of [plaintiff].
1. Employment.
a. [Plaintiff] is hereby employed as Associate Executive
Director of Joffrey for a six (6) month trial period
commencing on the date hereof and continuing till
November 2 7 t h , 2010. [Plaintiff] is a l s o subject to the
termination provisions herein. The Employer has the option
to renew for one (1) year after the trial period has
concluded on November 27th, 2010. The Employer must submit
in writing to [plaintiff] the option to renew within 30
days of trial period conclusion. If submission is not
made the contract reverts to a non-contract employment
3
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period.
2. Compensation a n d Benefits.
a. Joffrey shall pay [plaintiff] an annual salary of
sixty thousand dollars ( $ 6 0 , 0 0 0 ) , with such increases
as may be determined by Joffrey in its discretion ("Base
Salary"). The Base Salary of [plaintiff] shall not be
decreased at any time during the term of this Agreement
from the amount then in effect, unless [plaintiff]
otherwise agrees in writing. . . .
b. [Plaintiff] is entitled to two (2) week(s) paid Vacation
per six months consisting of 10 business days. [Plaintiff]
is entitled to ten (10) personal/sick days of paid leave
in the same time period. . . .
g. Joffrey reserves the right to alter the compensation
or benefits referred to hereinabove upon providing thirty
(30) days written notice to [plaintiff].
4. Termination
a. Joffrey may terminate this Agreement at any time,
with or without cause. There being no method by which
[plaintiff] may challenge his termination, in the event
Joffrey terminates [plaintiff], [plaintiff] shall be
entitled to two weeks severance pay, including all
salary and benefits to which [plaintiff] would otherwise
be entitled . . . .
c. [Plaintiff] shall only be paid for time worked.
10. Legal Fees and Costs. In the event that either
party elects to incur legal expenses to enforce or
interpret any provision of this Agreement, each party
shall be responsible for its own legal expenses, including,
but not limited to, reasonable attorney's fees, costs, and
necessary disbursements.
15. Understood and Acknowledged. Both parties have
fully reviewed this Agreement and any attached agreements.
All terms and provisions are fully understood by both
parties and the obligations and responsibilities imposed
by this Agreement and any attached agreements are entered
into with full acknowledgement."
Motion, Ex. B.
Defendants argue that the complaint must be dismissed
because there is no privity between plaintiff and any of the
4
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named defendants.
The contract entered into by plaintiff was
with Center for American Dance, Inc. d / b / a Joffrey Ballet School,
not with the other named defendants.
Motion, Ex. B.
Further,
the complaint fails to allege that plaintiff was employed by
DâAddario individually or that DâAddario signed the contract
other than in his representative capacity, which is clearly
indicated in the contract.
In opposition to the instant motion, and in support of her
own motion, plaintiff points out that, whereas the caption does
not name C e n t e r f o r American Dance, Inc., several paragraphs in
the body of the complaint do name that entity.
Further,
plaintiff has attached a copy of Form 1099 sent to her for work
performed, indicating the payerâs name as âJoffrey Ballet Center
for American Dance,â one of the named defendants.
Moreover,
plaintiff seeks leave to s e r v e and file an amended complaint
âwhich will
consist solely of the addition of a new defendantâ,
Center for American Dance, Inc.
¶¶
Aff. in Support; Cross Motion,
24-26.
Plaintiff also contends that DâAddario has a practice of
using the named corporations to his own advantage, not strictly
as corporate entities, which s u b j e c t s him to personal liability.
Plaintiff states that several of the functions that she performed
were performed at DâAddarioâs request and were not part of the
written contract.
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In reply, defendants state that plaintiff fails to show any
privity between her and Joffrey Ballet Center for American Dance,
Inc. d/b/a Joffrey Ballet, except for the one Form 1099, which,
defendants assert, is insufficient to maintain an action against
that entity.
Further, defendants say that plaintiff does not
demonstrate any connection between her and Joffrey Ballet Center,
Inc. d/b/a Joffrey Ballet School.
Defendants also argue that the employment contract clearly
identifies plaintiff as an executive, thereby rendering her
exempt from the federal and state laws noted in the complaint.
Lastly, defendants contend that the complaint, as well as
the proposed amended complaint, fails to allege any claim against
DâAddario individually
OF
allege any facts that would warrant a
theory of piercing the corporate veil.
Based on these arguments, defendants say that plaintiffâs
cross motion should be denied because the underlying causes of
action cannot be maintained.
DISCUSSION
First, the court w i l l address plaintiffâs cross motion for
leave to amend her pleadings.
C P L R 3025 ( b ) provides that
â[a] party may amend his o r her pleading, or supplement
it by setting forth additional or subsequent
transactions or occurrences, at any time by leave of
court or by stipulation of all parties. Leave shall be
freely given upon such terms as may be just including
the granting of costs and continuances.â
6
[* 8]
As stated in S e i d m a n v Industrial Recycling Properties, Inc.
(83 AD3d 1040, 1040-1041 [2d Dept 20111) :
âLeave to amend a pleading pursuant to C P L R 3025 ( b )
should be freely granted unless the proposed amendment
is palpably insufficient or patently devoid of merit,
or unless prejudice or surprise t o the opposing party
results directly from the delay in seeking leave to
amend.
The court grants plaintiffâs cross motion for leave to serve
and file an amended complaint in the form annexed to her moving
papers.
Defendants have failed to argue that such leave would
unduly prejudice them or that the addition of the party named in
the contract that forms the basis of this litigation is devoid of
merit.
Defendantsâ only argument goes to the underlying claims,
not the addition of a new party, which is the only amendment
sought,
The court will now address the main motion.
CPLR 3 2 1 1 ( a ) , âMotion to dismiss cause of action,â states
that:
â [ a ] p a r t y may move for judgment dismissing one or more
causes of action asserted against him on the ground
that:
(1) a defense is founded upon documentary evidence; o r
( 7 ) the pleading fails to state a cause of action;
...
I/
To defeat a pre-answer motion to dismiss made pursuant to
CPLR 3 2 1 1 , the opposing party need only assert facts of an
evidentiary nature which fit within any cognizable legal theory
(Bonnie
&
Co.
Fashions v Bankers T r u s t Co., 262 AD2d 188 [13tDept
7
[* 9]
1999])(internal citations omitted). Further, the movant has the
burden of demonstrating that, based upon the f o u r corners of the
complaint liberally construed in favor of the plaintiff, the
pleading states no legally cognizable cause of action
( G u g g e n h e i m e r v G i n z b u r g , 43 NY2d 268 [1977]; S a l l e s v C h a s e
Manhattan B a n k , 300 AD2d 226 [ l a 'Dept 20021).
That portion of defendants' motion seeking to dismiss the
complaint asserted as against Joffrey Ballet Center, Inc. d/b/a
Joffrey Ballet School is granted.
Based upon the documentary
evidence, defendants have established that: t h e r e is no cause of
action as against J o f f r e y Ballet Center, Inc. d/b/a Joffrey
Ballet School, as they are not a party to the contract.
That portion of defendants' motion seeking to dismiss the
complaint asserted as against Joffrey Ballet Center f o r American
Dance, Inc. d/b/a Joffrey Ballet is denied.
The Form 1099
provided by plaintiff indicating that this entity paid her for
some of the work that she performed is sufficient, at this'early
juncture, to warrant having that entity remain in the action.
That portion of defendants' motion seeking to dismiss the
complaint asserted as against D'Addario is granted.
Neither the
complaint, nor the proposed amended complaint, pleads sufficient
factual allegations that D'Addario so dominated and controlled
the corporation so as to warrant piercing the corporate veil, nor
is there any allegation that D'Addario acted other than in his
[* 10]
representative capacity.
E a s t Hampton Union Free School D i s t r i c t
v S a n d p e b b l e Builders, I n c . , 16 N Y 3 d 7 7 5 (2011); A l b s t e i n v Elany
Contracting Corp., 30 A D 3 d 210 ( l e t
Dept 2006).
That portion of defendantsâ motion seeking to dismiss
plaintiffâs third cause of action for unjust enrichment is
granted.
Both sides agree that there is a valid written
contract, and the existence of a valid contract bars a cause of
action in quantum meruit.
The Hawthorne Group, LLC v RRE
t
Ventures, 7 AD3d 3 2 0 ( l Z Dept 2004); see a l s o Sheiffer v Shenkman
Capital Mgt., 291 AD2d 295 ( 1 3 t Dept 2002).
Lastly, that portion of defendantsâ motion seeking to
dismiss plaintiffâs first and second causes of action is denied.
Too many factual questions exist at this preliminary stage in the
proceedings to warrant dismissal.
Moreover, the only arguments
presented by defendants in their moving papers, and plaintiff in
her opposition and cross motion, concern the parties to the
action and DâAddarioâs role; the first time that any argument was
broached relating to the legal theories underlying plaintiffâs
c a u s e s of action appear in defendantsâ reply memorandum.
Arguments advanced f o r the first time in reply papers are
entitled to no consideration by a court considering the merits of
a dispositive motion.
Meade v Rock-McGraw, Inc., 307 A D 2 d 1 5 6
(13tDept 2 0 0 3 ) .
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CONCLUSION
Based on the foregoing, it is h e r e b y
ORDERED that plaintiffâs cross motion for leave to amend the
complaint herein is granted, and the amended complaint in the
proposed form annexed to the cross-moving papers shall be deemed
served upon service of a copy of this o r d e r with notice of entry
upon all parties who have appeared in the action; and it is
further
ORDERED that a supplemental summons and amended complaint,
in the form annexed to the cross-moving papers, shall be served,
in accordance with the Civil Practice Law a n d Rules, upon the
additional p a r t i e s in this action within 30 days after service of
a copy of this order w i t h notice of entry; and it is further
ORDERED that the action shall bear the following caption:
BETH D. BERENBAUM,
Plaintiff,
Index No.: 108552/11
-againstJOFFREY BALLET CENTER FOR AMERICAN
DANCE, INC. d/b/a JOFFREY BALLET SCHOOL,
and CENTER FOR AMERICAN DANCE, INC.
d/b/a JOFFREY BALLET SCHOOL
Defendants.
And it is further
ORDERED that counsel for the cross-moving party shall serve
a copy of this order with notice of entry upon the County Clerk
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(Room 141B) and the Clerk of the T r i a l Support Office (Room 158),
who are directed to mark the court's records to reflect the
additional parties; and it is further
ORDERED that the portion of defendants' motion seeking to
dismiss the complaint asserted as against J o f f r e y Ballet Center,
Inc. d / b / a Joffrey Ballet School and Christopher D'Addario is
granted and the complaint is severed and dismissed as against
said defendants; and it is further
ORDERED that the portion of defendants' motion seeking to
dismiss plaintiff's third cause of action is granted and said
cause of action is dismissed; and it is further
ORDERED that t h e remainder of defendants' motion is denied;
and it is further
ORDERED that defendants shall serve an answer to the amended
1
complaint o r otherwise respond thereto within 20 days from the
I
date of said service; and f
r
iscEhD
ORDERED that by separ te order a prelim nary conference is
scheduled.
D o r i s Ling-Cohan, J . S . C .
J:\Dismiss\Berenbaum v J o f f r e y Ballet
-
dismiss, add defsndant.wpd
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