Whalen v Villegas

[*1] Whalen v Villegas 2013 NY Slip Op 23107 Decided on April 1, 2013 District Court Of Nassau County, First District Hirsh, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 1, 2013
District Court of Nassau County, First District

Jacob Whalen and Stephanie Whalen Nee Stephanie Spector, Plaintiffs,

against

Nina Sosnicka Villegas, Alex Villegas And Unique Vision Studios, Defendants.



CV-005565-12



Lisa Siano, Esq.

Steinberg & Gruber, P.C.

Fred J. Hirsh, J.

Plaintiffs move for summary judgment on their first and third causes of action and/or to strike defendants answer for failure to comply with a prior order of this court directing discovery and/or to compel discovery.

BACKGROUND

"Long ago it must be, I have a photograph, preserve your memories, they're all that left you." "Bookends" Paul Simon .

What damages can the bride and groom recover when the memories that were supposed to preserved of their wedding in photographs are not preserved?

Stephanie Spector ("Stephanie") and Jacob Whelan ("Jacob") (collectively "Whelan") were married on August 20, 2011. They will never be able to fully re-live their wedding in pictures because the defendant Unique Vision Studios ("Unique") did not properly transfer all of their wedding photographs from camera to computer.[FN1] [*2]

Jacob entered into a written agreement with Unique dated December 2, 2010 pursuant to which Unique was to provide 10 hours of photography at an unlimited number of locations, blended style photography, 300-500 high resolution color corrected and retouched images on a DVD with rights to reproduce and a password protected web gallery with option to purchase prints, two parent 8x8 photo books, an engagement photo shoot and a 16x20 canvas print.

Unique provided a photographer and photographer's assistant for Whalen's wedding who took the required photographs at all the appropriate locations.

The photographs were taken on a digital camera and were recorded on a memory card. When the photographer got back to Unique's study, the photographs were supposed to be transferred from the memory card in the camera used to photograph Whalen's wedding to Unique's computer for color correction and re-touching.

Unique believed all the photographs had been downloaded from the memory card to its computer. Unique did not check its computer to confirm the photographs had been transferred from the memory card to computer until Nina Sosnicka Villegas ("Nina") began to look at the photographs to retouch the images and do the color corrections.

Before Nina checked the photographs, Unique had re-used the memory card used to shoot Whalen's wedding and shot over some of the pictures taken of Whalen's wedding. As result, the photographs taken at the cocktail hour, the portraits of the entire bridal party, the photographs of the bride with her maid of honor and bridesmaids and the family portraits were permanently lost.

Whalen have received the photographs of the bride and groom alone, the bridal party getting ready for the wedding, the wedding ceremony, the first dance, the bride's dance with her mother, the groom's dance with his mother and photographs of the bride and the groom cutting the cake. Whalen claims these photographs were taken by the photographer's assistant and are of inferior quality. Whalen claims these photographs do not show all subjects of the shots and were unedited. Plaintiff claims none of the photographs they received were color corrected or retouched.

Neither party indicates whether Stephanie or Jacob's parents have received their photo books, whether Whalen have received their 16x20 canvas or the photographs of the engagement photo shoot and/or if Unique posted a web gallery.

By motion submitted to the court on June 12, 2012, plaintiff previously moved for summary judgment and to compel discovery. By order dated August 21, 2012, this Court denied plaintiff's motion for summary judgment on the grounds plaintiff papers were facially defective because plaintiff had failed to attach of copy of the pleadings to the papers. The court further found the papers were insufficient as a matter of law to establish a prima facie entitlement to judgment as a matter of law. Plaintiff has not appealed from or moved to renew or reargue from the court's August 21, 2012 decision and order.

The Court's order dated August 21, 2012 also directed defendant to provide responses to Items 3, 5, 6 and 8 of Plaintiff's Notice to Produce. The order found plaintiff's demand for interrogatories and notice to admit palpably improper and vacated the demand for interrogatories and notice to admit. [*3]

Whalen moves again for summary judgment on its first and third causes of action.In the first cause of action, Whalen seeks to recover in breach of contract the money it paid Unique for the photographs together with costs incurred to rent the Vanderbilt Mansion for family and wedding party portraits, costs incurred for a limousine to transport the family and wedding party to the Vanderbilt Museum and from the Vanderbilt Museum to the reception and additional costs incurred for hair and make-up services for the bride, the bride and groom's mother and the bridal party at the Vanderbilt museum and wedding venue.

In the third cause of action, Whalen seeks to recover damages for the costs they claim they will incur to re-shoot the lost wedding photos including $4748 to rent the catering hall at which the wedding and reception were held for 4 hours and food for 50 people, $1200 for flowers, $1884 or tuxedos for the groom, groomsmen the bride's father and the ring bearer, $700 for fittings for the bridal party, $1990 for hair and make-up, $1957 for travel expenses and $2440 to pay another photographer to shoot the pictures.[FN2] The third cause of action seeks these damages in contract and tort based upon defendants "gross breach" of the original contract and "gross negligence" in shooting and losing the wedding photographs. (See, Complaint ¶30).

In addition to the original agreement, the third cause of action is based upon a November 7, 2011 e-mail from Nina to Stephanie advising Stephanie some of the photos had been lost. The e-mail stated one of the memory cards had produced corrupted files. Nina stated she did not learn of this problem until she began editing the photos. The e-mail further stated Unique had never previously had this problem. Stephanie was advised Unique made efforts to recover the corrupted photos but could not. The e-mail advised Stephanie the family portraits, the photos of Stephanie and the bridesmaids and group photos of the bridal party were corrupted and unrecoverable.

The e-mail stated a second camera had been used to shoot the wedding and these photos were saved and would be provided. In this e-mail, Nina offered to re-shoot the lost photos.

On November 17, 2011, Whalen's attorney sent a letter of Unique advising Unique Whalen would accept the offer of a re-shoot provided it was done "TIME IS OF THE ESSENCE."

Unique never re-shot the lost photos. Whalen never had the lost photos re-shot.

Whalen asserts defendant has not complied with the court's prior order directing defendant to respond to Items 3, 5, 6, and 8 of plaintiff's Notice to Produce. Defendants assert they responded by letter dated August 29, 2012 in which defendant asserts it has previously provided Whalen with a copy of the contract (Item 3), prints of all unedited photographs (Item 5), prints of all edited photographs (Item 6) and all print screens and web galleries of images of Whalen's wedding (Item 8). Defendant claims it does not have any discs, flash drives, thumb drives or any other electronic devices [*4]containing images of plaintiff's wedding other than what it has already provided to Whalen (Item 7).

DISCUSSION

Plaintiffs motion for summary judgment could be summarily denied on the grounds its papers are procedurally defective because plaintiff has failed to attach a copy of the pleadings to its motion papers. Mieles v. Tarar, 100 AD3d 719 (2nd Dept. 2012); Zellner v. Tarnell, 54 AD3d 329 (2nd Dept. 2007); and Matsyuk v. Konkapilos, 35 AD3d 675 (2nd Dept. 2006); and CPLR 3212(b). Plaintiffs motion papers do not contain a copy of the defendants answer. The defendants answer is a pleading. CPLR 3011.

Denying the motion on this basis would simply delay the final resolution of this action and would leave open the issue of what damages Whalen's is entitled to recover. Since

the court clerk's file contains a copy of defendants answer, the court will consider the filed answer in deciding the motion.

Whalen's first and third causes of action are actions to recover damages for breach of contract. Plaintiff establishes a prima facie cause of action for breach of contract by establishing the contract between Whalen and the defendants, performance by Whalen, breach by the defendants and resulting damages. JPMorgan Chase v. J.H. Electric of New York, Inc., 69 AD3d 802 (2nd Dept. 2010); Furia v. Furia, 116 AD2d 694 (2nd Dept. 1986); and Sylmark Holdings Ltd. v. Silicone Zone International, Ltd., 5 Misc 3d 285 (Sup.Ct. NY Co. 2004).

The agreement to shoot photographs at a wedding imposes a contractual obligation on the wedding photographer to shoot the photographs a skillful and workmanlike manner and to provide the bride and groom and their families with professional photographs in accordance with the terms of the agreement. The photographer is required to use reasonable skill and care in accordance with accepted industry practices. Andreani v. Romeo Photographers & Video Productions, 17 Misc 3d 1124(A) (Civ.Ct. Kings Co. 2007).

Since the December 2, 2010 contract was breached because defendants are unable to provide the photographs they agreed to provide, the court could grant summary judgment to Whalen on the issue of liability. However, the court cannot determine based upon the pleadings and/or the papers submitted in support of the motion for summary judgment against whom summary judgment should be granted because neither the complaint nor the papers submitted in support of the motion for summary judgment indicate the type of business entity Unique was.

The complaint alleges and the answer admits Nina and Alex Villegas ("Alex") are the owners of Unique. However, ownership does not necessarily equal personal liability. If Unique was a corporation and Nina and Alex were the owners of the shares of the corporation or Unique was a limited liability company and Nina and Alex were the members of the limited liability company, Nina and Alex would not be personally liable for the contractual obligations of Unique. See, Walkovsky v. Carlton, 18 NY2d 414 (1966): 16 NY Jur2d Business Relationships §2145 - shareholders of a corporation are not personally liable for the contractual obligations of the corporation; and Limited Liability Company Law §102(m) - member of a limited liability company not personally liable for contractual obligations of a limited liability company. [*5]

If Unique was a partnership at the time in question, Nina and Alex would be personally liable for Unique's contractual obligation. 16 NY Jur2d Business Relationships §1695; and Partnership Law §26(a)(2).

Without appropriate proof either in the pleadings or the papers, the court cannot determine who is liable to Whalen for the failure to provide all the wedding photograph and albums the photographer was required to provide and Whalen was contractually entitled to receive.

Even if the court were to grant summary judgment on the issue of liability, issues remain on damages on the first cause of action.

The first issue is whether the agreement is one for the services or goods. If the contract is to provide goods, then the damages are governed by the provisions of the Uniform Commercial Code, Article 2.

In determining whether the agreement is one for the provisions of goods or the provision of services, the court must determine the predominant purpose of the agreement. Milau Associates, Inc. v. North Avenue Development Corp., 42 NY2d 482 (1977); and Malul v. Capital Cabinets, Inc., 191 Misc 2d 399 (Civ.Ct. Kings Co. 2002).

The agreement in question is an agreement in which the provision of photographic services predominates. No goods, wedding pictures, would be available for sale or could be provided to Whalen, their parents or guests unless and until the photographic services are properly and timely performed.

Weddings are unique, one-time events. Griffin-Amiel v. Frank Terris Orchestras, 178 Misc 2d 71 (City Ct. Yonkers 1998). The photographs taken at the wedding provide the bride and groom and their parents with a permanent recollection of this special day.

Photographers take 300-500 photographs of a wedding because many if not most of the photographs are not "usable" in a wedding album for reasons such as a person in the photograph was not smiling, a person in the photograph was not looking at the photographer when the photo was taken, a person in the photograph blinked or a myriad of other reasons. The photographer will shoot multiple shots of the same posed picture of the bride, the bride and groom, the wedding party, the bride with her parents and family, the groom with his parents and family, etc., in the knowledge and hope that out of the numerous similar or identical poses, the bride and groom and their parents will find that one special picture. See, Roberto v. Star Photo & Video, 2008 NY Misc. Lexis 4749, 240 N.Y.L.J. 17 (Yonkers City Ct. 2008).

In regard to the first cause of action, plaintiff is entitled to recover the difference between the value of the photographs provided and the value of the photographs had they been shot properly. 36 NY Jur 2d Damages §37. In order to determine the proper amount of damages, the trier of fact must review the photographs and determine how many, if any, of the photographs provided to Whalen were shot in accordance with industry standards, what photographs were permanently lost and what relationship the lost photographs have to the all the wedding photos. Andriani v. Romeo Photographers & Video Productions, supra. The trier of fact will also have to determine what damages, if any, Whalen is entitled to receive for the failure of Unique to provide the parent's albums, the 16x20 photograph, the web posting and the engagement shoot, if these items were not provided. Id.

In order to obtain compensation for the rental fees for the Vanderbilt Museum, [*6]the limousine service and hair and make-up expenses, Whalen must provide the trier of fact more and better proof of these damages and what the actual damages are that specifically relate to the lost photos.

The court cannot determine from the papers whether Whalen seeks to recover the full cost of the limousines even though agreement for the limousines indicate they were rented for the full day and provided transportation not only from the hotel at which the bride and groom and wedding party were staying to the Vanderbilt Museum, but also provided for transportation from the Vanderbilt Museum to the venue where the wedding and reception were held and transportation from the wedding venue back to the hotel. Whalen does not make any attempt to distinguish between the expenses it would have incurred for limousine expenses from the hotel to the wedding venue and the additional expenses incurred to transport the wedding party from the hotel to the Vanderbilt Museum and from the Vanderbilt Museum to the venue of the wedding and wedding reception.

Whalen also fails to indicate if any of the photographs taken at the Vanderbilt Museum were preserved, how many photographs taken at the Vanderbilt Museum were lost and what relationship the lost photographs have to the photographs that were not lost. Whalen fails to indicate whether photographs containing the same people or groups of people were shot at other locations and are in the saved photographs.

The court notes the bride, maid of honor, bridesmaids, and bride and groom's mother often have their hair and make-up done professionally for the wedding. Whalen does not distinguish between the general expenses incurred for hair and make-up and the specific expenses incurred in connection with the lost photographs.

Before the court can award damages on the first cause of action for the limousine and hair and make-up expenses, Whalen must establish which expenses were incurred specifically for the lost photographs as opposed to those expenses that would have been incurred in any circumstance for the their wedding. See, Sagnia-Blythe v. Gamblin, 160 Misc 2d 930 (Civ.Ct. Bx.Co. 1994).

The third cause of action raises different issues. Whalen sues to recover the costs they believe will be incurred in re-shooting the lost wedding pictures in contract and tort. Paragraph 30 of the complaint alleges the defendants committed a "gross breach" of the contract and "gross negligence".

A breach of a contract does not give rise to a cause of action in tort in the absence of a duty independent of the those created by the contract. Sommer v. Federal Signal Corp., 79 NY2d 540 (1992); and Clark-Fitzpatrick v. Long Island Rail Road Co., 70 NY2d 382 (1987); Kiam v. Park & 66th Corp., 87 AD3d 887 (1st Dept. 2011) lv. dnd. 18 NY3d 809 (2012); and Muldoon v. Blue Water Pool Services, Inc., 7 AD3d 496 (2nd Dept., 2004).New York does not recognize a separate tort cause of action for negligent performance of a contract. Inter-Faith Community Memorial Hospital of Newfane, Inc. v. Hamilton Wharton Group, Inc., 93 AD3d 1176 (4th Dept. 2012); Drezin v. New Yankee Stadium Community Benefit Funds, Inc., 94 AD3d 542 (1st Dept. 2012); and Shu v. Air Sea Trucking, Inc., 31 Misc 3d 132(A) (App.Term 2nd, 11th & 13th Jud. Dists. 2011).

Whalen does not provide any proof defendants had any obligations relating to photographing Whalen's wedding other than those created by the contract. Unique was [*7]obligated to provide photographic services and photographs of Whalen's wedding, an engagement shoot and photos, a web posting of the wedding photographs, parent's albums and a 16x20 photograph of Stephanie and Jacob.

CPLR 3212( b) gives the court authority to search the record and grant summary judgment to a non-moving party. See, Lindstedt v. 813 Associates, 238 AD2d 386 (2nd Dept.), lv. dnd. 90 NY2d 1007, rearg. dnd.91 NY2d 867 (1997). Since Whalen's third cause of action is an action to recover damages for breach of contract, to the extent this cause of action seeks damages for negligence, the court searches the record and grants summary judgment to the defendant dismissing the third cause of action.

The third cause of action raises questions of whether you can ever re-create photographs taken at a unique, once in a lifetime event and what is the measure of damages, if any, the court can award Whalen to re-take the lost photographs.

Whalen's assertion that Nina's e-mail of November 7, 2011 creates an agreement between Nina and Unique and Whalen obligating Unique to re-shoot the lost wedding photographs is without merit. This is an offer of settlement. Such an offer may not be considered an admission of liability. Sabin-Goldberg v. Horn, 179 AD2d 462 (1st Dept.1992); Prince-Richardson On Evidence §8-218(11th Ed. Farrell 1995); and CPLR 4547.

Even if the court were to consider it an offer to enter into an agreement to re-shoot the lost photographs, Whalen never accepted the offer since the parties were never able to arrange for a re-shoot.

There is little case law and no case law in New York regarding the consequential damages a bride and groom may recover when the photographer loses some or all of their wedding photographs.

The New York cases involving consequential damages for lost photographs involve the damages recoverable by professional photographer when the photographer's photos are lost. In these cases, the damages include cost to re-shoot the photographs if the photographs were generic and the commercial value of the photographs to the photographer, to wit: the earnings or income lost by the photographer as a result of the photographs being lost or destroyed. See, Blackman v. Michael Friedman Publishing Group, Inc., 201 AD2d 328 (1st Dept. 1994); Nierenberg v. Wusteria, Inc., 189 AD2d 571 (1st Dept.) lv. dnd. 82 NY2d 651 (1993); and Alan MacWeeney, Inc. v. Esquire Associates, 176 AD2d 217 (1st Dept. 1991) app. dismissed 79 NY2d 1015 (1992).

These factors are not present in this case. Whalen's wedding photographs are not generic. They are special, unique and relate to their wedding that occurred nearly 1 ½ years ago.

In the only case the court has been able to find relating to the value of wedding photographs that were lost before they were delivered to the bride and groom, the court found the sentimental value of the photographs to be speculative. The court further found no authority to award plaintiff the cost of re-shooting the photographs. See, Carpel v. Saget Studios, Inc., 326 F.Supp 1331 (E.D. Pa. 1971).

In actions for breach of contract, consequential damages can be awarded if the damages plaintiff seeks to recover were fairly within the contemplation of the parties at the time the contract was made and can be proved with reasonable certainty. [*8]Fitzpatrick v. Animal Care Hosp. PLLC, -A.D.3d- 2013 NY Slip Op. 02119 (3rd Dept. 2013); and Crystal Clear Development Corp. v. Devon Architects of New York, P.C., 97 AD3d 716 (2nd Dept. 2012). The court questions whether the costs to re-take the now lost wedding photographs were within the contemplation of the parties when they entered into the December 2, 2010 agreement.

Whalen's wedding photographs are unique. Whalen has offered no evidence the photographs of their wedding have any commercial value. The court questions whether posed wedding photographs can be retaken more than one and a half-years after the wedding or whether photographs of a cocktail hour, wedding reception, first dance, the bride and groom cutting the cake, the bride tossing the bouquet, etc. can ever be re-staged or re-taken. Even if the pictures are re-taken, Whalen would always know these photographs were not really photographs of their wedding.

Additionally, Whalen has not had the lost photos re-taken. The damages Whalen seeks to recover are the estimated costs Whalen may incur in re-shooting the lost photographs. These damages are speculative and may never be incurred. Damages are award in breach of contract actions to compensate plaintiff for actually incurred damages or damages that can be proven with a reasonable degree of certainty. Kenford Co., Inc. v. County of Erie, 57 NY2d 257 (1986). Awarding Whalen the costs to re-shoot the photographs without proof of the actual costs Whalen has incurred in having the photographs re-taken would provide Whalen with a windfall.[FN3]

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320

(1986); and Zuckerman v. City of New York 49 NY2d 557 (1980).

If the party moving for summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 AD3d 397 (2nd Dept. 2008); Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept., 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept., 1999).

Since plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on either the first or third cause of action, plaintiff's motion for summary judgment is denied.

Plaintiff motion to compel discovery is also denied. Plaintiff is in possession of the contract between the parties. (Item 3). A copy is attached to plaintiff's complaint. Defendant has provided plaintiff with copies of all the photographs it took at the wedding. (Items 5 and 6). Defendant's attorney states defendant is not in possession of any other photographs or storage devices upon which the photographs were stored. (Item 7). Whalen should know whether Unique has posted any photographs of heir wedding on line. (Item 8). Defendant should not be compelled to repeatedly provide through discovery material plaintiff already possesses or which has already been provided. Defendant cannot be compelled to provide material it does not possess. Vaz [*9]v. New York City Transit Auth., 85 AD3d 902 (2nd Dept. 2011); and Corriel v. Volkswagon of America, Inc., 127 AD2d 729 (2nd Dept. 1987).

Accordingly, it is

ORDERED,that plaintiffs motion for summary judgment is denied; and it is

further

ORDERED, that to the extent plaintiffs third cause of action seeks damages in tort, the third cause of action is dismissed; and it is further

ORDERED, that plaintiff's motion to compel discovery or strike defendants answer for failure to comply discovery is denied.

This constitutes the decision and order of this court.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: April 1, 2013 Footnotes

Footnote 1: Defendants Nina Sosnicka Villegas and Alex Villegas are alleged to be the owners of Unique.

Footnote 2:The travel expenses include costs that will be incurred to fly members of the bridal party who do not live in New York to New York. The court notes Jacob's affidavit was notarized in Florida. The travel costs may also include the cost of having the bride and groom return to New York for the re-shoot.

Footnote 3:Stated differently, if the court were to award Whalen the costs it expects to incur for re-shooting the lost photographs, Whalen would be receiving compensation for damages and expenses they did not and may never incur.