Alpert v Kirsch

[*1] Alpert v Kirsch 2004 NY Slip Op 51600(U) Decided on December 15, 2004 City Court Of Mount Vernon Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2004
City Court of Mount Vernon

LESLIE ALPERT, Plaintiff,

against

ABIGAIL KIRSCH at TAPPAN HILL, Defendant.



3361-04



Leslie Alpert

Plaintiff Pro Se

179 Central Parkway

Mount Vernon, New York 10552

Abigail Kirsch at Tappan Hill

Defendant Pro Se 81 Highland Avenue

Tarrytown, New York 10591

Adam Seiden, J.

Plaintiff commenced this small claims action against the defendant seeking to recover $3,100, representing the balance of the deposit paid on a catering contract.

In June 2003, plaintiff contracted with defendant catering establishment in connection with the marriage of her daughter on June 20, 2004, almost a full year in advance. The parties' contract called for the use of the defendant's Pavilion Chapel from 11:30am to 12:00 pm, Pavilion Promenade from 12:00pm to 1:00 pm, and Pavilion Room from 1:00 pm to 5:00pm, resulting in a 5½ hour event. It also called for the menu and beverage arrangements and other incidentals, including valet parking and coat check. Defendant charged plaintiff $188.75 per person [$147 base price + 20% service charge ($29.50) x 7% sales tax ($12.35)] for 170 minimum guaranteed guests, resulting in a full wedding catering contract price of $32,087.50. On or before July 2, 2003, plaintiff deposited $8,000 towards the contract price.

The credible testimony established that on December 27, 2003, almost six months before the scheduled event, plaintiff advised the defendant that it was necessary to cancel the event. Plaintiff testified that defendant later informed her that another wedding had been re-booked for the same date of her contract. Despite defendant's ability to re-book, defendant only refunded plaintiff $4,900.00 of her $8,000.00 deposit without any explanation. She argues that she is entitled to the remainder of her deposit since the defendant was able to re-book an event on her contract date.

Defendant's General Manager, John Di Lorenzo, testified that although defendant establishment was able to re-book an event, its aim is to "always get some money", and some concessions were made for the new event. He contends that as per the parties' original contract, plaintiff is not entitled to a full refund of her deposit since it had to discount prices associated with the new event. Paragraph one on the back of the last page of the parties' original contract, provides in pertinent part:

All prepayments and reservation fees are non-refundable in the [*2]

event of cancellation of your event. You acknowledge that retention

of all reservation fees and prepayments by Abigail Kirsch at Tappan

Hill is necessary because of the nature of its business and industry, in

which events are normally booked many months in advance, so that

a cancellation will often make booking another event impossible, leaving its facilities unused and resulting in a substantial loss of profit. The amount of such loss is not capable of precise calculation in advance, and it is the experience of Abigail Kirsch at Tappan Hill that in most cases the reservation fee and prepayment amounts reasonably approximate such loss.

The contract further provides:

Abigail Kirsch at Tappan Hill will take commercially reasonable

measures to book another event in place of that which was cancelled,

recognizing that such measures normally include general advertisements

of its services and notification to its personnel of the open date so that

they can inform prospective clients of the availability thereof. In the event

Abigail Kirsch at Tappan Hill is able to book an alternate event on the

date, time and in the same space as the cancelled event at a total price equal to or greater than that of your event, your prepayments and reservation fees will be refunded.

Defendant provided the contract for the re-booked event. A review of the new

contract demonstrates that another party entered into a contract with the defendant on

January 22, 2004, for a wedding celebration on June 20, 2004. The contract



called for the use of the defendant's Pavilion Chapel from 4:30pm to 5:00 pm, Pavilion Promenade from 5:00pm to 6:00 pm, and Pavilion Room from 6:00 pm to 10:00pm, also resulting in a 5½ hour event. It also called for the exact same menu and beverage arrangements and incidentals listed in plaintiff's contract. Despite these vast similarities, defendant charged the new party a lower rate of $170.77 per person [$133 base price + 20% service charge ($26.60) x 7% sales tax ($11.17)] for 170 minimum guaranteed guests, resulting in a total contract price of $29,030.90.

After reviewing the evidence and hearing the parties' testimony, the Court finds that plaintiff is entitled to a full refund of her deposit. Here, plaintiff gave an ample six-month notification of her cancellation. As a result, defendant was able to re-book another 5½ hour wedding celebration on the same date and in the same space originally contracted by plaintiff. Despite the vast similarities between the two events, including the same date, length of event, facilities used, menu and beverage arrangements, incidentals and same number of guests, defendant discounted the new event, charging $170.77 per person compared to $ 188.75 per person charged to [*3]plaintiff, ultimately resulting in a $3,056.56 difference between the two events.

Although the defendant contends that it was entitled to keep a portion of plaintiff's deposit pursuant to the "liquidated damages" clause in the contract, the Court finds that defendant did not make a sufficient showing that it took "reasonable measures" or its best effort to re-book the event for an equal or greater price. Defendant did not demonstrate that it had to turn away prospective renters during the six months that the Pavilion facilities were held open for plaintiff. Further, defendant failed to provide a reasonable explanation why a party booking an event closer to a projected wedding date was entitled to receive a discount rather than a higher rate. With a cancellation so far in advance of the projected wedding date, plaintiff should not be penalized for defendant's concessions to the new party or held as a guarantor of defendant's anticipated and hoped for profits (Bogatz v Case Catering Corp., 86 Misc 2d 1052 (Civ. Ct. Queens Co. 1976)). Finally, since the tendency in doubtful cases is to treat a liquidated damages clause as an unenforceable penalty, irrespective of its characterization by the parties (Schiffman v Deluxe Caterers of Shelter Rock, Inc., 100 AD2d 846 (2d Dept. 1984), the Court awards judgment to plaintiff in the amount of $3,100.

The above meets this Court's statutory charge to do substantial justice between the parties.

This constitutes the Decision and Order of this Court.

Dated: December 15, 2004

Mount Vernon, New York

_____________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon



To:Leslie Alpert

Plaintiff Pro Se

179 Central Parkway

Mount Vernon, New York 10552

Abigail Kirsch at Tappan Hill

Defendant Pro Se [*4]

81 Highland Avenue

Tarrytown, New York 10591