Milan Music, Inc. v Emmel Communications Booking, Inc.
Annotate this CaseDecided on September 14, 2004
Supreme Court, New York County
Milan Music, Inc., SOLOMON HATCHER and DANIEL ST. PRIX, Plaintiffs,
against
Emmel Communications Booking, Inc., VIOLATOR MANAGEMENT, INC., MICHAEL LIGHTEY, CHRIS LIGHTEY, DAVE LIGHTEY and CURTIS JACKSON p/k/a "50 CENT", Defendants.
601306/03
Attorneys for Defendants EMMEL COMMUNICATIONS BOOKING, INC., VIOLATOR
MANAGEMENT, INC., MICHAEL LIGHTEY, CHRIS LIGHTEY,
DAVE LIGHTEY
Pryor Cashman Sherman & Flynn LLP
410 Park Avenue
New York, New York 10022
By: Ronald A. Giller, Esq. and Brad D. Rose, Esq.
Attorneys for Defendant CURTIS JACKSON p/k/a "50 CENT"
Hall Dickler Kent Goldstein & Wood, LLP
909 Third Avenue
New York, New York 10022
By: James E. Daniels, Esq.
Attorneys for Plaintiffs MILAN MUSIC, INC., SOLOMON HATCHER and
DANIEL ST. PRIX,
Norman St. George, Esq.
St. George & Associates
114 Old Country Road, Suite 350
Mineola, New York 11501
Helen E. Freedman, J.
This action for breach of contract and fraud was brought by a promoter who had organized a concert by Curtis Jackson, a "hip hop" performer professionally known as "50 Cent." After the concert was canceled, plaintiffs sued Jackson, along with his booking agent, Emmel Communications Booking, Inc. ("Emmel Booking"),his management company, Violator Management, Inc. ("Violator Management"), and Michael, Chris, and Dave Lighty, who are allegedly principals of the corporate defendants. All defendants except Jackson move for summary judgment pursuant to CPLR 3212; hereinafter, the five moving defendants collectively will be referred to as the "Movants".[FN1] Plaintiffs Milan Music, Inc. ("Milan Music"), Solomon Hatcher and Daniel St. Prix cross-move, pursuant to CPLR 3025(b), for leave to serve an amended complaint that modifies the Verified Complaint (the "Complaint") by adding three causes of action and some factual allegations. For the reasons set forth below, the motion for summary judgment is granted, and the cross-motion is granted in part.
Undisputed facts Hatcher and St. Prix are principals of Milan Music, a New York corporation which produce and promote music concerts. In the fall of 2002, plaintiffs sought to organize a concert by Jackson in Idaho. By written contract dated January 30, 2003 and executed on March 18 (the "Contract"), Milan Music engaged Jackson to perform at the Idaho Center Arena in Nampa, Idaho on May 11, 2003 for $ 100 thousand plus assorted perquisites. The Contract stated that it was made between Jackson and "Solomon Hatcher rep. Milan Music," and was executed by Dave Lightly (on the signature line for Jackson) and Hatcher (on the signature line for Milan Music). As payment terms, the Contract required Milan Music to make a deposit of $ 50 thousand to Emmel Booking, a booking agency affiliated with Violator Management, [*2]which specializes in managing hip hop artists.[FN2] Eventually the Concert was canceled and Milan Music's deposit was returned; the circumstances of the depositation are in dispute.
Complaint allegations According to plaintiffs, they originally contacted the three individual defendants and Violator Management about the Idaho concert (the "Concert") because they had falsely held themselves out "to the public and to the music entertainment industry" as Jackson's exclusive managers. Once the Contract was executed and delivered, plaintiffs began organizing and promoting the Concert by, among other things, leasing the concert hall, advertising in print and on radio, obtaining sponsors, caterers and vendors, and selling tickets to the public. But on or about April 15, 2003, plaintiffs allege, defendants notified them that they would not honor the Contract and that Jackson would not perform the Concert, and returned the $ 50 thousand deposit.
This lawsuit ensued. The Complaint, filed on April 25, 2003, purports to set forth five causes of action, but the allegations are duplicative and only three discrete claims are stated: (1) the defendants breached the Contract; (2) the defendants defrauded plaintiffs because they never intended Jackson to appear and perform at the Concert and (3) the Movants fraudulently induced plaintiffs to enter into the Contract and expend money and effort by misrepresenting that they managed Jackson, while in truth they "never had the authority and never were specifically authorized to enter into entertainment contracts or book the concert performances of defendant Curtis Jackson." In addition to compensatory damages, plaintiffs seek punitive damages.
Motion for summary judgment The Movants contend that, contrary to what plaintiffs claim, (1) Violator Management has managed Jackson at all relevant times; (2) the Contract is solely between Jackson and Milan Music, and accordingly the Movants cannot be liable under it, (3) on April 9, 2003, Hatcher contacted Michael Lightly to request that the Concert be deposited and the Contract be rescinded; (4) in his capacity as Jackson's booking agent, Michael Lightly agreed to Hatcher's request and returned the deposit, which plaintiffs accepted and retained; (5) correspondence between the parties confirms that they mutually rescinded the Contract.[FN3]
As supporting evidence, the Movants submit the affidavits of the three individual defendants and a copy of the Contract. Michael Lightly states that he is the President of Emmel Booking, which since 2002 has booked more than 50 concerts for Jackson as his booking agent. He adds that Violator Management and Emmel Booking are independent entities which maintain separate capitalizations and operations. Dave Lightly attests that he is an officer of a record company, that he has never worked for Emmel Booking, and that he has not worked for Violator Management since 1998.
In his affidavit, Darrell (a/k/a Chris) Lightly states that he is the President of Violator Management, and that the company managed Jackson at the time of the complained-of incidents and still manages him. He states that he signed the Contract on Jackson's behalf as his manager.
Discussion: breach of contract This claim against the Movants, which is set forth in the [*3]first, second and third causes of action, is dismissed because they are not parties to the Contract and lack privity with plaintiffs. A non-party to a contract cannot be liable for its breach. Dember Constr. Corp. v. Staten Isl. Mall, 56 AD2d 768, 769 (1st Dept. 1977). Chris Lightly signed the Contract only in his disclosed capacity as the agent for Jackson. The other Movants have no connection to the Contract whatsoever.
Fraud and Fraudulent Inducement Plaintiffs fail to address that branch of the motion seeking to dismiss the fourth and fifth causes of action, for respectively fraud and fraudulent inducement. In any event, the fraud claim amounts to an allegation that defendants never intended that Jackson would perform obligations under the Contract, and is barred as duplicative of the claims for breach of contract. See, e.g., Marine Midland Bank v. John E. Russo Produce Co., 50 NY2d 31, 44 (1980).
As for the fraudulent inducement claim, plaintiffs fail to rebut Movants' evidence that they never made any false representation to them. The plaintiffs allege that Violator Management and Emmel Booking deceived them by falsely claiming that they had the authority to book the Concert for Jackson. However, the affidavits of Michael and Darrell Lightly state that the corporate defendants were Jackson's agents and could contract on his behalf.
In response, plaintiffs fail to offer any probative evidence that raises an issue of fact. They submit a copy of a letter dated April 15, 2003 (the "Letter") from non-party William Morris Agency, Inc. ("William Morris"), which states that William Morris is "the sole and exclusive agent for [Jackson]" and demands that plaintiffs "(i) immediately cease and desist from any further activity which in any way infringes or violates our client's rights and (ii) notify [William Morris] in writing of any other persons or parties with whom you have been acting in concert." But the statements in the Letter are hearsay which fails to defeat the summary judgment motion. See Lacagnino v. Gonzalez, 306 AD2d 250, 250 (2d Dept. 2003). Moreover, plaintiffs themselves contradict William Morris' claim: they submit the Letter as an exhibit to the affirmation of their plaintiff's attorney, who states that "heretofore and at all times herein mentioned the defendants . . . were and are the music entertainment managers of Curtis Jackson." Inasmuch as a fraud claim cannot be based upon a true statement, see Kamhi v. Tay, 244 AD2d 266, 267 (1st Dept. 1997), the fraudulent inducement claim is dismissed.
Punitive damages Plaintiffs also fail to this branch of the summary judgment motion. Punitive damages are unavailable to the plaintiffs in any event. Generally punitive damages are unavailable for actions under contracts, because their purpose is "not to remedy private wrongs but to vindicate public rights." Rocanova v. Eq. Life Assurance Soc. of the U.S., 83 NY2d 603, 613 (1994). However, punitive damages can be recovered if "the conduct constituting, accompanying, or associated with the breach of contract is first actionable as an independent tort for which compensatory damages are ordinarily available," and that tortious conduct is sufficiently "egregious." Id. Here, the Movants' alleged actions are not egregious enough to warrant exemplary damages. Accordingly, all prayers for punitive damages against the Movants are dismissed.
Jackson has not moved for any relief and accordingly all claims against him survive.
Cross-motion The proposed amended complaint adds a sixth, seventh and eighth cause of action. They are based on the following new allegations: (1) the parties had entered into an [*4]earlier contract under which Jackson was to perform concerts on April 27, 28, and 29, 2003 (the "Earlier Contract"); (2) defendants breached the Prior Contract and Jackson failed to perform the April concerts; and (3) defendants induced plaintiffs not to sue for breach of the earlier contract by promising that Jackson would perform a concert for plaintiffs in May 2003
Although granted freely, leave to amend will be denied where the proposed amendment is "totally devoid of merit and legally insufficient." Zabas v. Kard, 194 AD2d 784, 784 (2d Dept. 1993). Leave to add the proposed sixth cause of action is denied because it patently lacks merit. Plaintiffs allege that defendants harmed them by fraudulently inducing them not to sue on the Earlier Contract, and by never intending to perform either the Earlier Contract or the Contract. However, plaintiffs do not allege any injury, inasmuch as they can still sue, and in fact are now suing, on the Earlier Contract.
The proposed seventh cause of action states plaintiffs' claim for breach of the Earlier Contract, and leave is granted to add it. The proposed eighth cause of action, which purports to state a fraud claim, alleges that "when the defendants booked [the Concert], they had prior to that date, executed an exclusive agreement with [William Morris]." Leave to add this claim is denied because, as discussed above, defendants have proved that Emmel Communications and Violator Management were Jackson's agents and had the authority to book the Concert.
For the reasons set forth above, it is
ORDERED that the motion for summary judgment is granted, and the first, second, third, fourth, and fifth causes of action against defendants Emmel Communications Booking, Inc., Violator Management, Inc., Michael Lightly, Chris Lightly, and Dave Lightly are severed and dismissed, and it is further
ORDERED that the cross-motion to amend the complaint is granted, in part, to the extent that leave shall be granted to amend the allegations of fact and add the seventh cause of action, without any prayer for punitive damages, and to this extent the Amended Verified Complaint in the form proposed as annexed to the cross-motion papers shall be deemed served upon service of a copy of this order; and it is further
ORDERED that leave to amend the complaint is denied with respect to the proposed sixth and eight causes of action, which are stricken; and it is further
ORDERED that the defendants shall answer the Amended Verified Complaint within 20 days from the date of said service, and it is further
ORDERED that the parties are directed to appear for a status conference before the Court (Room 208, 60 Centre St., NY, NY) at 9:30 a.m. on October 19, 2004.
Dated: September 14, 2004
Helen E. Freedman, J.S.C.
APPEARANCES:
Footnotes
Footnote 1:Defendant Curtis Jackson is represented by separate counsel and has not joined in the other defendants' motion.
Footnote 2:The parties dispute whether Violator Management represented Jackson at the time. See infra.
Footnote 3:The rescission issue will not be reached here inasmuch as summary judgment is granted on unrelated grounds.
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