Opinion
Index No. 652056/2022
12-13-2022
Hammer Promotions LLC, Plaintiff, v. Certified Celebrity Bookings, Inc. and MIKE GEE, Defendants.
Law Firm of Brandon S. Schwartz, P.C., New York, NY (Brandon S. Schwartz of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Law Firm of Brandon S. Schwartz, P.C., New York, NY (Brandon S. Schwartz of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
In this action seeking damages for failure to refund fees after the cancellation of an event by performer "Lil T Jay," plaintiff, Hammer Promotions LLC, moves without opposition for default judgment under CPLR 3215 against defendants, Certified Celebrity Bookings, Inc. (CCB), and Mike Gee (CCB's owner). The motion is granted as to CCB and denied as to Gee.
DISCUSSION
A party moving for default judgment must establish service on the parties it seeks to hold liable, and those parties' default. Hammer Promotions has met these requirements. The movant must also set forth the facts constituting its claim. (See CPLR 3215 [f].) A defaulting defendant is deemed to have admitted all the allegations in the complaint. (See Rokina Optical Co. v. Camera King, Inc., 63 N.Y.2d 728, 730 [1984].) The "legal conclusions to be drawn from such proof," though-and whether the facts deemed established demonstrate that the plaintiff has a viable cause of action-"are reserved for the Supreme Court's determination." (McGee v. Dunn, 75 A.D.3d 624, 624 [2d Dept 2010] [internal quotation marks omitted].) If the allegations of the complaint do not establish a cause of action, the plaintiff's motion for default judgment must be denied. (See Matter of Dyno v. Rose, 260 A.D.2d 694, 698 [3d Dept 1999].)
In this case, Hammer Promotions relies on a party-verified complaint and an affidavit provided by plaintiff's principal. The facts set forth in those submissions, however, state a cause of action only as to one of Hammer Promotions' six asserted claims-and then only as to CCB.
1. Plaintiff's first cause of action is a breach-of-contract claim. Plaintiff alleges that the engagement contract, in which Lil T Jay agreed to perform at Hammer Promotions' event, was also binding on defendants because it was "generated and exchanged by" them. (NYSCEF No. 1 at ¶ 39.) The court disagrees.
The contract's language appears to identify Certified Celebrity Bookings as the performer's agent. (See NYSCEF No. 6 at 4 [Engagement Contract] ["Artist's Management shall or agent CERTIFIED CELEBRITY BOOKINGS shall not be responsible for damage or injury...."] [emphasis added].) An agent acting on behalf of a disclosed principal in a contract "will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal." (Savoy Record Co. v Cardinal Export Corp., 15 N.Y.2d 1, 4 [1964] [internal quotation marks omitted].) No provisions in this contract can plausibly be read to confer liability upon Certified Celebrity Bookings. Nor can they be interpreted to bind Gee, who is not referred to in the contract at all.
Indeed, even if Certified Celebrity Bookings had intended to substitute or superadd its personal liability for Lil T Jay's performance, the signature line of "Authorized Rep/Lil T Jay" was not signed.
Plaintiff's request for default judgment on its breach-of-contract claim is denied, and the claim is dismissed, for lack of a cause of action. Plaintiff's third cause of action, a claim for breach of implied covenant of good faith and fair dealing, is similarly dismissed: It cannot "substitute for a nonviable breach of contract claim." (Triton Partners v Prudential Sec., 301 A.D.2d 411, 411 [1st Dept 2003].)
2. Plaintiff's second cause of action sounds in unjust enrichment. To obtain relief in unjust enrichment, a plaintiff must show "(1) the other party was enriched, (2) at [plaintiff's] expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered." (Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 182 [2011] [internal quotation marks omitted].) The allegations of plaintiff's complaint and principal's affidavit sufficiently allege that these requirements were satisfied as to defendant CCB-but not as to defendant Gee.
The contract required plaintiff to wire an initial fee of $37,040 to an account controlled by CCB. Plaintiff did so on October 21, 2021. (See NYSCEF No. 8 [transaction receipt].) Plaintiff claims that "[s]hortly thereafter, on or about October 27, 2021, Defendants unilaterally rescinded the contract claiming that the artist asked to hold off on the deal due to a personal reason." (NYSCEF No. 20 at ¶ 17.) In the event of such a cancellation, the contract provides that "ALL refunds are made within 30 business days or before only if it's the artist or agent's fault for cancellation." (NYSCEF No. 6 at 3.)
Pursuant to the contract, defendants were required to refund plaintiff's payment by November 26, 2021. Plaintiff represents that the money has still not been refunded-notwithstanding plaintiff's repeated demands, defendants' explicit reassurances that they would pay, and defendants' partial payment of $4,500. These representations establish for default-judgment purposes that CCB has been unjustly enriched at plaintiff's expense.
Plaintiff's submissions are not, however, sufficient as to defendant Gee. Plaintiff sent the fee it now seeks to recoup to a CCB account, not one held by Gee personally. And plaintiff has not set forth facts that might warrant this court's piercing the corporate veil and deeming Gee to have been enriched by a payment made by CCB, or otherwise holding Gee personally liable for CCB's obligations.
Plaintiff is entitled on its second cause of action to default judgment against CCB. Plaintiff's unjust-enrichment claim against Gee must be dismissed for lack of a cause of action.
3. Plaintiff's third cause of action is discussed above. The fourth cause of action seeks damages under General Business Law (GBL) § 349 for alleged deceptive acts and practices. But to state a GBL § 349 cause of action, the claimant must demonstrate that conduct of the defendant is consumer-oriented. "Private contract disputes, unique to the parties,... would not fall within the ambit of the statute." (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 N.Y.2d 20, 25 [1995].) The alleged deceptive practices at issue all related to a "single shot transaction[ ]" between the parties relating to the production of one event with specific and individualized requirements. (New York Univ. v Const'l Ins. Co., 87 N.Y.2d 308, 321 [1995].) Defendants' alleged deceptive conduct thus lacked "a broad impact on consumers at large," as required for a GBL § 349 claim. (North State Autobahn Inc. v Progressive Ins. Group Co., 102 A.D.3d 5, 12 [2d Dept 2010].)
4. Plaintiff's fifth cause of action seeks damages under Executive Law § 63 (12) for alleged repeated and persistent fraud by defendants. But the express terms of § 63 (12) clearly confer remedial authority only on the New York Attorney General-not on private plaintiffs. Plaintiff may not assert a § 63 (12) claim. This cause of action must therefore also be dismissed.
5. Plaintiff's sixth cause of action seeks damages for common-law fraud. But plaintiff's factual allegations do not satisfy CPLR 3016 (b)'s particularity requirements. Although plaintiff argues that defendants made material misrepresentations and omissions of fact regarding the procurement of Lil T Jay's performance, plaintiff does not specify the timing or nature of those misrepresentations. Thus, this court dismisses plaintiff's sixth cause of action.
Finally, plaintiff has not offered facts that would warrant the grant of punitive or multiple damages, as sought in plaintiff's complaint.
Accordingly, it is
ORDERED that the branch of plaintiff's motion seeking default judgment under CPLR 3215 against defendant Gee is denied, and the action is dismissed against defendant Gee (no costs); and it is further
ORDERED that the branch of plaintiff's motion seeking default judgment under CPLR 3215 against defendant CCB is granted only as to plaintiff's second cause of action in unjust enrichment, the motion is otherwise denied, and the remaining causes of action against CCB are dismissed; and it is further
ORDERED that plaintiff is awarded a money judgment against defendant CCB for $34,040.00, with interest running at the statutory rate from February 8, 2022 (the date of CCB's last partial payment), plus costs and disbursements to be taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants and on the office of the County Clerk, which shall enter judgment accordingly.