Opinion
Motion Seq. No.: 002 Motion Seq. No.: 004 Motion Seq. No.: 013 Index No.: 653619/2012
2013-09-06
LOUIS RASKE, et al., individually and as class representatives, Plaintiffs, v. NEXT MANAGEMENT, LLC, et. al., Defendants.
DECISION AND ORDER
O. PETER SHERWOOD, J.S.C.:
In this decision and order, the court addresses twenty-five (25) motions to dismiss the complaint pursuant to CPLR 3211 (a)(1), (a) (3), (a)(7) and 3013. The complaint is brought as a purported class action by plaintiff, Louisa Raske ("Raske" or "plaintiff"), on behalf of herself and all professional models who are or have been represented by New York modeling agencies. The complaint names twenty-five (25 ) New York modeling agencies who act as agents and managers of professional models ("Modeling Agency Defendants" or "MAD"), nine (9) advertising agencies that represent clients that use the images, portraits and pictures of professional models ("Advertising Agency Defendants" or "AAD") and six (6) ultimate users of the images who retain modeling agencies to secure images of models to endorse or sell their products and services ("Client Defendants" or "CD"). The complaint alleges that Raske and members of the plaintiff class were not compensated for renewal or expansion of usage of the images made after expiration of the initial usage period. The complaint acknowledges that models are paid for initial usage.
The named Modeling Agency Defendants are: Next Management, LLC, ("Next"), Wilhelmina Models, Inc., Wilhelmina International Ltd., (together "Wilhelmina"), Ford Models Inc, ("Ford"), Elite Model Management-New York LLC ("Elite"), DNA Model Management, LLC. ("DNA"), IMG Models Inc. ("IMG"), Trump Model Management LLC ("Trump") MC2 d/b/a, a/k/a Karin Models of New York, LLC ("MC2"), Major Model Management Inc. ("Major"), Silent Models LLC, Fusion Model Management Inc. ("Fusion"), Marilyn Model Management Inc.("Marilyn"), 1 Model Management LLC ("1 Model"), Red Model Management LLC. ("Red"), Request Model Management, Inc. (Request), Supreme Model Management LLC ("Supreme"), VNY Model Management Inc.("VNY"), Men Women NY Model Management Inc. ("MenWomen"), APM Models, Inc. ("APM"), Q Model Management d/b/a, a/k/a, New York Model Management, Inc. ("Q Model"), Click Model Management, Inc. ("Click"), S. Model Management, LLC ("S Model"), Elite Model Management Corporation ("Elite"), and NYC Management Group, Inc. ("NYC Mgt.").
The named Advertising Agency Defendants are: McCann-Erickson, USA, INC., McCann-Erickson Corporation (INTERNATIONAL), (together "McCann"), Ogilvy & Mather Partners, Inc. ("Ogilny"), Publicis, Inc. ("Publicis"), JWT, Laird + Partners New York LLC ("Laird"), Leo Burnett Company, Inc.("Leo Burnett:), Saatchi & Saatchi North America, Inc. ("Saatchi"), and Kirstenbaum Bond & Partners, Inc. ("Kirstenbaum").
The named Client Defendants are: L'Oreal USA, INC. ("L'Oreal"), Revlon, Inc. ("Revlon"), Garnier LLC. ("Garnier"), Coty Inc. ("Coty"), Aveda Corporation ("Aveda"), Sephora USA, Inc. ("Sephora"), and Maybelline LLC ("Maybelline").
The complaint alleges five (5) causes of action against the Modeling Agencies Defendants for an accounting (first cause of action), unjust enrichment (second cause of action), breach of fiduciary duty (third cause of action), fraud and fraudulent concealment (fourth cause of action), and conversion (fifth cause of action). The complaint also alleges two causes of action against the Advertising Agency Defendants and the Client Defendants for an accounting (first cause of action) and for unlawful use of images without release in violation of New York Civil Rights Law ("NYCRL" §§50 and 51) (sixth cause of action).
The seventh cause of action "seeking an order of protection" is not a valid cause of action and will be ignored.
The court heard extensive oral argument on three representative motion, motion sequences 4,2, and 13. Although this decision and order discusses the three motions at length, each of the twenty-five motions is decided separately based on the legal principles discussed here. In motion sequence 004, Defendant Elite, a MAD, moves to dismiss the first through fifth cause of actions against it. In motion sequence no. 002, Defendants Publicis and Saatchi both AAD(s) move to dismiss the first and sixth causes of action against them. In motion sequence no. 013, Gamier, a CD, seeks the same relief as the AADs. Elite, Publicis, Saatchi, and Garnier are referred to as "Movants".
Movants assert that plaintiff lacks standing to sue because the complaint does not allege (1) any relationship between plaintiff and movants and (2) any injury arising from any alleged acts of movants. As to the cause of action for an accounting, Movants argue that the complaint fails to state a cause of action because plaintiff has not alleged the existence the existence of any fiduciary duty or special relationship that would give rise to a fiduciary obligation to plaintiff by any of the moving parties. Elite adds that the causes of action for breach of fiduciary duty and fraud must be dismissed for the same reason. Elite also asserts that the causes of action for unjust enrichment, breach of fiduciary duty, fraud/fraudulent concealment and conversion are barred by the existence of written contracts covering the same subject matter and that the fraud and fraudulent concealment claims lack the particularly required by CPLR 3016. Finally, Publicis, Sactchi and Garnier contend that the NYCRL claims must fail because the complaint alleges that consents and releases were given by agents of plaintiff with apparent authority.
I. THE FACTS
As these are motions to dismiss the facts are taken from the complaint and are assumed to be true (see Monroe v Monroe , 50 NY2d 481, 484 [1980]).
According to the complaint, professional models such as plaintiff are independent contractors of modeling agencies. The models commonly enter into agreements with modeling agencies (the so-called "Modeling Agency Agreement"), which not only grants the modeling agency power of attorney during the term of the agreement, commonly referred to as the "Management Period" but which further provides that "payment of funds received for the [m]odel (less commissions) will be made to the [m]odel[] upon receipt by the [m]odeling [a]gency" and that "the [m]odeling [a]gency [is] entitled to commissions for Usages beyond the management period for bookings during the management period"Compl. ¶ 29. These contracts also enable the modeling agencies to "grant the right to use their images, portraits and pictures to advertising agencies and clients, who use those images to endorse/sell the clients' products and services"id. ¶ 21. In return, " [m]odels are compensated both for having their images photographed and for the use ("Usages") of the images" id. The scope of such Usages is negotiated between, on the one hand, the modeling agency then representing the model and, on the other hand, the advertising agencies and/or clients which desire to use the model's images. The agreement is then memorialized in a contract between those parties which provides for payment of the booking fees charged by the modeling agency. The model receives compensation from the modeling agency she hired to represent her, pursuant to a contract between herself and the modeling agency.
At various points during the course of her career, plaintiff has been represented by defendants Next and Major and non-parties Race Model Management New York ("Race") and Mega Models Miami ("Mega"). All four (4) are identified as modeling agencies.
In June 2012, plaintiff saw her image on a box of L'Oreal Ferria brand hair coloring. The photograph of her image was taken during a booking completed years earlier at a time when plaintiff was represented by Next. The complaint alleges that plaintiff was shocked to see that her image was still being used to sell the product because she had never been advised by the modeling agency, Next, that the use of the image has been extended beyond the term for which plaintiff initially agreed and for which plaintiff received payment (see id. ¶ 48). Plaintiff then contacted Next and questioned how her image continued to be used years after the original term without her knowledge or permission and without compensation" (see id. ¶ 50). Next informed plaintiff that defendant, McCann had paid Next to extend the usage. Thereafter, Next sent plaintiff a check for $8,130.63 (see id. ¶¶ 51, 54).
Unsatisfied by Next's response, plaintiff contacted McCann directly, whereupon she received from McCann a certain "statement/breakdown [] that reflected that substantial moneys had been paid to Next by McCann well beyond the check that Next remitted to [plaintiff]," as well as "copies of documents furnished to McCann by Next which appear[ed] to contain a forgery of [plaintiff's] signature" (id. ¶¶ 55, 60, 62). Plaintiff further alleges that, when confronted with these facts, "Next immediately remitted to [plaintiff] an additional $31,374.40, but refused to furnish a statement, claiming that. . . [plaintiff] had now been paid in full" (id. ¶ 63).
At the time she received the "statement/breakdown" from McCann, plaintiff also received a statement reflecting "domestic and international usages for which McCann has paid... defendant Major Modeling Inc. ("Major")." Thereafter, in a March 2011 email, a representative of Major confirmed to plaintiff that, "[a]s for the L'Oreal contract[] since the original job was done through Major, additional bonuses and usages will always come to us. It has always been that way for any campaign, advertising job or any contract job a model does while represented by Major . . ." (id.¶¶ 58, 64). In or around June 2011, plaintiff was informed by advertising agency Ogilvy that Mega which had not represented plaintiff "since September 2010, wrongfully represented to Ogilvy that it still spoke for plaintiff, and improperly negotiated with Ogilvy the renewal of certain Usages of plaintiff's images, offering to furnish to Ogilvy certain "releases and documents supposedly from [plaintiff]," all despite the fact that plaintiff "had no knowledge of the negotiations" (id. ¶¶ 65, 68).
In motion sequence number 001 Next asserts (and presents documentary proof in support) that on November 15, 1997 it entered into a two year Personal Management Agreement ("PMA") with plaintiff, Raske. The PMA was renewed for successive years. At some point which Raske fixes as 2001, the contract was terminated. In any event, Next admits that the PMA remains in effect to this day for any "use, re-use, fees, modifications, additions, options, extensions, renewals, and/or substitutions for and replacements of . . . engagements or contracts, whether made during or after the term of the [PMA]" (aff of Malie Pellet, Ex. A).
The PMA is Next's and Model's version of the Modeling Agency Agreements referred to in the complaint.
According to Next, Raske approved extensions of use of her image by L'Oreal in 2006, 2009, and 2012 and was paid therefor. Apparently, one or more of the checks sent by Next to Raske was returned undelivered. Raske alleges that she has maintained the same telephone and e-mail address since 2001. Next claims that Raske has been paid in full, a claim which Raske has attempted unsuccessfully to have verified and which she disputes.
The allegations in the complaint specific to Major are set forth at paragraph 64 thereof as follows:
64. A March 2011 email to Raske from the Director of Women for defendant Major, Elizabeth Gubitosi, clearly explains the common practice in the modeling industry, that usage payments continue to go to the agencies that did the original booking, regardless of whether the agencies actually still represent the models:
As for the L'Oreal contract-since the original job was done through Major, additional bonuses and usages will always come to us. It has been that way for any campaign, advertising job or any contract job a model does while represented by Major. L'Oreal uses a grid for additional usages-we never know which usage they will pick up until they inform us.
In motion sequence number 010 Major asserts that it represented Raske pursuant to the terms of a PMA for two years commencing in October 2004. Following termination of the contract by Major, Raske continued to have contact with Major in connection with additional usages. Model maintains that there are no "recent orders" for renewal of any usage of her photos (see aff of Katia Sherman, ¶ 7) and that no usage fees are "currently due and owing" to Raske (see aff of Elizabeth Gubitosi, ¶ 3). The record reveals that Major paid fees to Raske as late as 2011. Raske alleges that Major failed to pay all the fees owed.
The complaint contains no specific substantive allegations against any other defendant. Instead the complaint asserts broadly the experiences described are common to the relationships of models to the Modeling Agency Defendants and are systemic and endemic within the New York modeling agencies. The commonality exists because such relationships are governed by substantially similar contracts which contain terms used across the industry. According to the complaint, the typical contract contains "industry-wide terms" including:
- terms which specify that the Modeling Agency Defendants shall "act as agents and personal managers for the models for a specific period of time, commonly known as the "Management Period," and that the Modeling Agency Defendants shall "obtain bookings for the models they represent from the Advertising Agency Defendants or through the Client Defendants directly" (id. ¶¶ 24-25);
- terms which "grant [] the Modeling Agency Defendants power of attorney during the . . . 'Management Period'" and, in some cases, extend the power of attorney to all future Usages, including those beyond the term of the contract" (id. ¶¶ 30 31);
- terms which entitle the Modeling Agency Defendants to certain fees and commissions, commonly equal to "a 20% booking fee" and "20% of the Bookings and Usages deducted from the Models' Earnings" (id. ¶¶ 26-27); and
- terms which "provide . . . that: (a) payment of funds received for the Models (less commissions) will be made to the Models upon receipt by the Modeling Agency Defendants; [and] (b) the Modeling Agency Defendants are entitled to commissions for Usages beyond the [M]anagement [P]eriod for bookings during the [M]anagement Period (id. ¶ 29).
The complaint indicates that such contractual clauses give rise to the possibility that "each of the Modeling Agency Defendants has money in its accounts that rightfully belongs to the Models . . . [but] which has not been paid to the Models" (id. ¶ 20) because
- the Advertising Agency Defendants and/or the Client Defendants may have "negotiate[d] the continuation and or expansion of [an] initial Usage[]" of a model's image with the Modeling Agency Defendant that originally booked that Usage, even though "the Management Period [corresponding to that particular model] ha[d] [already expired] and the Modeling Agency Defendant responsible for the booking no longer represented] the model[] and was no longer in contact with the [m]odel[]" (id. ¶ 40)
- the Modeling Agency Defendants, "without the knowledge of the models and or without legal authority or permission," may have "improperly sign[ed] the model's signature and/or execute[d] documents as if the Modeling Agency Defendants had contacted the models and had the legal authority or permission to execute the documents," or otherwise "unlawfully continue[d] to exercise the power of attorney even when the model was no longer with the Modeling Agency Defendants' agency and beyond the Management Period. (id. ¶¶ 36, 41); or
- the Modeling Agency Defendants, may have "properly come into possession of models' funds," and "may not have intended to improperly keep fees that are owed to the Models but, nevertheless, [may] have maintained exclusive possession and control of monies that are owed to the Models monies that are owed to the Models [by]), to date, hav[ing] not paid these amounts to the Models" (id. ¶¶ 34, 44).
On this basis plaintiff seeks to have the case certified as a class action to vindicate the rights of all professional models who are or have been represented by New York modeling agencies. Plaintiff seeks an accounting, compensatory and punitive damages, attorney fees and a court ordered monitoring program.
II. DISCUSSION
A. Standard of Review
1. CPLR § 3211 (a) (1)
To succeed on a motion to dismiss, pursuant to CPLR § 3211 (a) (1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiff's claims (see, 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180 ). A motion to dismiss pursuant to CPLR § 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law [citation omitted]" (McCully v. Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept. 2009]).
CPLR § 3211 (a) (1) does not explicitly define "documentary evidence." As used in this statutory provision, '"documentary evidence' is a 'fuzzy term', and what is documentary evidence for one purpose, might not be documentary evidence for another" (Fontanetta v John Doe I, 73 AD3d 78, 84 [2d Dept 2010]). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (id. at 86, citing Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3211:10, at 21-22). Typically that means judicial records such as judgments and orders, as well as documents reflecting out-of-court transactions such as contracts, releases, deeds, wills, mortgages and any other papers, "the contents of which are 'essentially undeniable'" (id. at 84-85).
2. CPLR § 3211 (a) (3)
Pursuant to CPLR § 3211 (a)(3) a cause of action may be dismissed where a party lacks legal capacity or standing to sue. The critical issue in determining whether a party has standing to sue is whether the party has suffered an "injury in fact, which is 'an actual legal stake in the matter being adjudicated" and 'ensures that the party seeking review has some concrete interest in prosecuting the action . . ." Society of Plastic Indus, v. County of Suffolk, 77 NY2d 761, 772(1991).
3. CPLR § 3211 (a) (7)
On a motion to dismiss a plaintiff's claim pursuant to CPLR § 3211 (a)(7) for failure to state a cause of action, the court is not called upon to determine the truth of the allegations (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 317 [1995]; 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]. Rather, the court is required to "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference [citation omitted]. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs&Co., 5NY3d 11, 19[2005]). The Court's role is limited to determining whether the pleading states a cause of action, not whether there is evidentiary support to establish a meritorious cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180 [2d Dept 2010]).
While affidavits may be considered on a motion to dismiss for failure to state a cause of action, unless the motion is converted to a 3212 motion for summary judgment the court will not consider them for the purpose of determining whether there is evidentiary support for properly pleaded claims, but, instead, will accept such submissions from a plaintiff for the limited purpose of remedying pleading defects in the complaint (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 "unless they establish conclusively that [plaintiff] has no . . . cause of action" (Lawrence v Groubard Miller, 11 NY 3d 588, 595 [2008], citing Rovello v Orofino Realty Co., 40 NY2d at 636). In this posture, the lack of an affidavit by someone with knowledge of the facts will not necessarily serve as a basis for denial of a motion to dismiss.
B. Standing To Sue
In New York, "a plaintiff may not proceed with an action in the absence of standing" (Ryan, Inc. v New York State Dept. of Taxation and Fin., 26 Misc 3d 563, 567 [Sup. Ct. NY County 2009]). The plaintiff must have an injury in fact in order to bring a cause of action against a particular defendant (see Silver v Pataki, 96 NY2d 532, 539 [2001] (a "plaintiff has standing to maintain an action [only] upon alleging an injury in fact that falls within his or her zone of interest"]; Murray v Empirelns. Co., 175 AD2d 693,694-95 [1st Dept 1991] [plaintiff's' claims dismissed with respect to transactions and defendants with whom they were uninvolved]). Where a complaint fails to plead such injury, on its face, dismissal of the complaint is appropriate (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003] [Standing to sue is . . . a threshold issue. If standing is denied, the pathway to the courthouse is blocked."]).
Movants argue that the complaint must be dismissed as to them because the complaint alleges neither any relationship between them and plaintiff nor any injury to plaintiff that is traceable to any of them. Plaintiff responds that in order to satisfy the standing requirements, she need only establish that plaintiff has a direct and meritorious claim against one or more defendants, that her claims arise from and are similar to claims of members of the class and that she and her counsel are capable of rendering adequate representation to the class. In support of this position plaintiff cites Weinstein, Korn & Miller, New York Civil Practice: CPLR, Second Ed., Vol. 3 §901.06 [1] ["WKM"] which addresses the standard for certification of class actions. Plaintiff requests that the court defer addressing the standing issue until after plaintiff has had discovery to establish the identities of other professional models who suffered similar injuries. At oral argument on the motions, plaintiffs' counsel presented emails involving a professional model who received a payment from Elite for re-use of her image by Proctor & Gamble. Counsel states that the model did not authorize the extension usage of her image which usage occurred after termination of her contract with Elite. Counsel stated that he intends to amend the complaint to include a claim by the model against Elite.
Plaintiff's recitation of the standards for representational standing for purposes of class certification does not address the threshold issue of individual standing that must be satisfied before the case may be permitted to proceed. The cases that allow limited pre-certification discovery intended to establish the pre-requisites for class certification do not apply where individual standing is absent.
As stated succinctly in WKM, §901.056:
First, the class representative must have his or her own claim or defense that rises to the level of a case or controversy, a requirement known as individual standing.
* * *
The concept of individual standing means that the class representative must have an individual injury that is cognizable at law. Individual standing also means that the class representative must have a cause of action against the same defendant against whom the members of the class have the same claim
It is well settled that "[t]he procedural device of a class action may not be used to bootstrap plaintiff into standing which is otherwise lacking" Murray, 175 AD2d at 695. "That a suit may be a class action . . . adds nothing to the question of standing for even named plaintiffs who represent a class must allege and show that they have personally been injured not that injury has been suffered by some other, unidentified members of the class . . . which they purport to represent." (Simon v Eastern Ky. Welfare Rights Organization, 426 US 26,40 n 20 [1976] [citation omitted]). A plaintiff has no standing to sue a given defendant when she or he has not alleged any injury cause by that defendant (see Tegnazian v Consolidated Edison, 189 Misc 2d 152, 155 [Sup Ct, NY County 2000]; Central States SE & SW Press Health & Welfare Fund v Merck-Medco Managed Care, LLC, 504 F3d 229, 241 [2d Cir. 2007] ["For every named defendant there must be at least one named plaintiff who can assert a claim directly against the defendant."]).
Pre-certification class discovery is only available for purposes of determining whether a plaintiff with individual standing can satisfy the representational standing requirements of CPLR Article 9 for class certification. It is not a vehicle for a plaintiff to explore and create causes of action against additional defendants, or to identify other potential plaintiffs who may have causes of action that are factually different from plaintiff. In this case, plaintiff has not alleged a direct claim against any movant. Her lack of individual standing disqualifies her from proceeding with this litigation and engaging in any discovery from them. Plaintiff is not entitled to maintain claims against movants based on the possibility that there might be some evidence of an additional plaintiff or claim somewhere to be obtained through discovery. Because plaintiff lacks standing to assert any claims against Movants, she is not entitled to engage in a discovery with the hope of establishing standing. Plaintiff has not asserted that she was injured due to the actions of any of the movants the complaint must be dismissed as to each of them for lack of standing.
C. Claims Premised on Existence of Fiduciary Duty or Special Circumstances
The existence of a fiduciary relationship or special circumstances giving rise to a fiduciary duty is an essential element of the first (accounting), third (breach of fiduciary duty), and fourth (fraudulent concealment) causes of action (see Saundersv AOL Time Warner, Inc., 18 AD3d216, 219 [1st Dept 2005] [accounting]; Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989] [breach of fiduciary duty]; Dambeck v 220 Cent. Park S. LLC, 33 AD3d 491, 492 [1st Dept 2006] [fraudulent concealment]).
In this case, the complaint alleges that professional models commonly enter into Modeling Agency Agreements that define the relationship between the models and the modeling agencies (see Compl. ¶¶ 28-36). It asserts that the modeling agencies breach their fiduciary duty to the models by failing to pay them.
The complaint describes a typical arms length commercial relationship. Absent extraordinary circumstances - and no such circumstances are alleged here - parties dealing at arms length in a commercial transaction lack the requisite level of trust or confidence between them necessary to give rise to a fiduciary obligation (see Kaminsky v Kahn, 20 NY2d 573, 582 [1967]; Foster v Kovner, 2006 NY Slip Op 30201 [U] [Sup Ct, NY County 2006], rev'd on other grounds, 44 AD3d 23 [1st Dept 2007]; Sanshoe Trading Corp. v Mitsubishi Intl. Corp., 122 Misc 2d 585, 587 [Sup Ct, NY County 1984] "[The mere fact that the proceeds from the sale of the footwear were collected and were to be distributed by the defendants and that the plaintiff is unaware of the exact amount to which he is entitled does not make the defendants fiduciaries. Nor do plaintiff's allegations plead the existence of any special circumstances justifying the equitable relief of an accounting."]). Courts have held repeatedly that the relationship between professional models and modeling agencies do not give rise to any fiduciary obligation on the part of the modeling agency (see Wilhelmina Artist Mgt. LLC v Knowles, 8 Misc 3d 1012[A], 2005 NY Slip Op 51060[U] [Sup Ct, NY County 2005]; Dove v L Agence, Inc., 250 AD2d 435 [1st Dept 1988]; Bezuska v L.A. Models, Inc., 2006 WL 770526, at *17 [SD NY Mar. 24, 2006 No. 04-CV-7705 (NRB)] [dismissing models' claim for an accounting of modeling agencies' financial affairs which was premised on the models' contention that "they may not determine the 'amount of monies due [them] . . . without a full and complete accounting of defendants' financial affairs'" on the ground that "we know of [no] case law suggesting that modeling agencies are fiduciaries for their models"]).
Because the complaint does not allege facts sufficient to support the existence of a fiduciary relationship or special circumstances justifying the equitable relief of an accounting, the first, third, and fourth causes of action must be dismissed.
D. Claims Affected By The Existence Of Modeling Agency Agreements
A cause of action for unjust enrichment, breach of fiduciary duty, fraudulent concealment or conversion may not be maintained where there exists a contract governing the same subject matter (see Clark-Fitzpatrick, Inc. v Longls. R.R. Co:, 70 NY2d 382, 388 [1987] ["The existence of a valid enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter"]), Thus "[a] claim for unjust enrichment or quasi contract may not be maintained where a contract exists between the parties covering the same subject matter" (Goldstein v CIBC World Mkts. Corp., 6 AD3d 295, 296 [ 1st Dept 2004]). "Only where the contract does not cover the dispute at issue may a plaintiff proceed upon a quasi-contract theory of unjust enrichment" (Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d 1, 10 [1st Dept 2012]). Further, where a "bona fide dispute exists to the existence of a contract," plaintiff may proceed on a quasi-contract theory (see Nakamura v Fuji, 253 AD2d 3 87, 390 ). A claim for breach of fiduciary duty will be dismissed where there exists an agreement that covers the same subject matter (see Celle v Barclays Bank P.L. C, 48 AD3d 301, 302 [ 1 st Dept 2008]) Likewise "a cause of action for fraud does not arise when the only allege fraud relates to a breach of contract" (Melissakis v Proto Constr. & Dev. Corp., 294 AD2d 342, 343 [2d Dept 2002]). Finally, "[a]n action for conversion cannot be validly maintained where damages are merely being sought for breach of contract" Peters Griffin Woodward, Inc. v WCSC, Inc., 88 AD2d 883, 884 [ 1 st Dept 1982]) (see also Wolf v National Council of Young Israel, 264 AD 2d 416, 417 [2d Dept 1999] [claim of conversation for unauthorized deduction of late fees from monthly mortgage payments dismissed because "a claim to recover damages for conversion cannot be predicated on a mere breach of contract"]).
1. Unjust Enrichment
Plaintiff has not alleged breach of contract and thus maintains that her claim for unjust enrichment is not duplicative of any "asserted" breach of contract claim (Plaintiff's Mem of Law in motion sequence 004, at 14). However, the complaint alleges that "[t]he Modeling Agency Defendants have interfered with and took unauthorized control over the funds paid for Usages to the exclusion of the Models' rights" (Compl. ¶¶92-104) and that the relationship between each Modeling Agency Defendant and each model they represent(ed) is governed by express contract (see id. ¶¶ 24-31). The complaint alleges specifically that "[m]odels are independent contractors of the Modeling Agency Defendants" id. ¶ 24, and that "[m]odels commonly enter into agreements with the Modeling Agency Defendants)" id. ¶ 28. The complaint also alleges that the Modeling Agency Agreements cover, among other subjects: the Modeling Agency Defendants' entitlement to booking fees and commissions; their right (if not obligation) to collect payments from the Advertising Agency Defendants and the Client Dependants; how and when the Modeling Agency Defendants must remit such payments to the models; and the Modeling Agency Defendants' entitlement to commissions for Usages beyond the relevant Management Period, (see id. 26 ¶¶ 29, 37). Additionally, defendant Next attaches a copy of the Modeling Agency Agreement between Raske and Next. Given the existence of contracts between the models and the modeling agencies, any unjust enrichment claim is foreclosed as a matter of law (see Goldstein, 6 AD 3d at 296).
2. Breach of Fiduciary Duty
Regarding the breach of fiduciary duty claim, plaintiff alleges that the Modeling Agency Defendants breached their fiduciary duties to the models now or previously represented by them by: (a) improperly signing documents on the models behaves; (b) retaining and using the models' funds; (c) failing to accurately account for monies received from Usages; and (d) unjustly enriching themselves with monies received from the Advertising Agency Defendants and Client Defendants in respect of such Usages (see Compl. ¶ 108). However, the complaint also alleges that the Modeling Agency Defendants' rights and obligations to negotiate and execute documents for the models, collect and account for Usage payments and retain or remit those funds, are covered by the Modeling Agency Agreements) (see id. ¶¶ 24-29). According to the complaint "both the agent/model relationship and the power of attorney from the Models to the Modeling Agency Defendants (established by, the Modeling Agency Agreements) created a fiduciary duty on the part of the Modeling Agency Defendants to the Models" (id. ¶ 71). Thus no breach of fiduciary duty claim can be asserted against the Modeling Agency defendants since a cause of action for breach of fiduciary duty will not lie where a plaintiff "fails to allege conduct by defendants in breach of a duty other than, and independent of, that contractually established between the parties." (Kaminsky v FSP Inc., 5 AD3d 251, 252 [ 1st Dept 2004]).
3. Fraud
As to the fraud claims pleaded in the complaint, the allegations that: (a) the Modeling Agency Defendants have a duty to inform the models currently or previously represented by them of any request by any advertising agency or client to extend any previously agreed to Usage of their images, and of any funds received by the Modeling Agency Defendants in respect of any such Usage; (b) the Modeling Agency Defendants intentionally (or negligently) failed to do so; and (c) the Modeling Agency Defendants intentionally submitted false or misleading financial statements to the models which do not accurately reflect the Modeling Agency Defendants' receipt of Usage payments (see Compl. ¶¶ 115, 117, 120, 122), are all within the subject matter covered in the Modeling Agency Agreements and therefore do not state a viable cause of action (see Melissakis, 294 AD2d at 243).
4. Conversion
The gist of the conversion cause of action is that the Modeling Agency Defendants have "obtained funds which are rightly due to the plaintiffs from advertising agencies and clients for the use of the Models' images," and that the Modeling Agency Defendants have exercised unauthorized dominion over th[os]e funds" (Compl. ¶¶ 126-127). These allegations aver that "the Modeling Agency Defendants' rights and obligations concerning the collection, retention and remittance of Usage-related funds received from advertising agencies and clients are provided for in the Modeling Agency Agreements" (id. ¶¶ 24-29). Because "an action for conversion cannot be validly maintained where damages are merely being sought for breach of contract," (Peters Griffin Woodward, 88 AD2d at 884), this claim must also be dismissed.
E. The Civil Rights Law Claim
Publicis, Saatchi, and Gamier move to dismiss the Civil Rights Law §§50 and 51 claim against them on the basis that plaintiff admits that consents to use of the models' images were given by agents of plaintiff who had apparent authority. Publicis, Saatchi, and Gamier, argue that under New York Law, releases signed by a model's agent - even though the agent had no actual authority from the model - are binding on the model as against an innocent advertising agency or client which had no knowledge of any limitation on the agent's authority or had no other reason to question the validity of the releases (see Cory v Nintendo of Am., 185 AD2d 70 [1st Dept 1993] [granting summary judgment dismissing complaint where it was undisputed that agent for photographer who gave written consent and release had apparent authority to sign on plaintiff's behalf]). They add that this cause of action is subject to a one (1) year statute of limitation.
The complaint in this case alleges that the Advertising Agency Defendants and their clients were unaware that the Modeling Agency Defendants no longer represented the models and were without authorization to give consents or sign releases (Compl.. ¶ 426). Thus as against the Advertising Agency Defendants and their clients, plaintiff is bound by the acts of her former agents. The fact that the agents of the plaintiff in Cory gave unlimited consents to the user while no such unlimited consents to use the models' images were given by agents here, is unavailing. In both cases the AADs and CDs were "unaware" of the lack of authority of the MAD. Accordingly, the sixth cause of action premised on violation of NYCRL §§ 50 and 51 must be dismissed.
III. DISPOSITION
A. As to All Defendants except Next, Major, McCann and L'Oreal
Plaintiff who had no relationship with Elite, Publicis, Saatchi, or Gamier lacks standing to sue and the complaint must be dismissed as to them for that reason. Moreover, the claims for an accounting, unjust enrichment, breach of fiduciary duty, fraud/fraudulent concealment, conversion and violation of NYCRL §§ 50 and 51 must all dismissed with prejudice for the reasons discussed above and the absence of any allegations of fact to support a claim against these defendants by this plaintiff.
The grounds on which the other defendants except Next, Major, McCann, L'Oreal and Maybelline, base their motions to dismiss the complaint are virtually identical to the grounds advanced by Movants. In fact, the vast majority of the briefs filed on behalf of the various defendants cross-reference and adopt the arguments of the others. Similarly, plaintiff filed a single memorandum of law in opposition to the motions filed by several of the Modeling Agency Defendants and offered that memorandum of law and her memorandum of law in opposition to the motion of Publicis to dismiss the complaint as her responses to motions of the various Advertising Agency Defendants and the Client Defendants.
Because the law and operative facts discussed above apply with equal force to the motions of Modeling Agency Defendants, IMG (motion sequence no. 001), MenWomen (motion sequence no. 003, 1 Model (motion sequence no. 005), Red (motion sequence no. 006), DNA (motion sequence no. 007), VNY (motion sequence no. 008), Ford (motion sequence no. Oil), Trump (motion sequence no. 12), Fusion (motion sequence no. 018), S Model (motion sequence no. 020), Wilhelmina (motion sequence no. 021), and Click (motion sequence no. 24); Advertising Agency, Kirshenbaum (motion sequence no. 016), and Leo Burnett (motion sequence 022); and Client Defendants, Revlon (motion sequence no. 014), Sephora (motion sequence no. 017), and Aveda (motion sequence no. 023), the motions to dismiss the complaint as to said defendants shall be granted for the same reasons and to the same extent discussed above. In addition the complaint will be dismissed sua sponte but without prejudice as against all similarly situated defendants in the interest of judicial economy even though they have not yet filed motions to dismiss the complaint.
B. As to Next and Major
The complaint alleges that Next and Major collected fees for renewal of Usages and failed to pay plaintiff fully for such Usages. These allegations sufficiently allege injury in fact to confer individual standing to sue (see Silver, 96 NY2d at 539). However, the complaint must be dismissed because there is no fiduciary relationship between Raske and either Next or Major and the existence of PMAs between Raske and these defendants preclude any claims for unjust enrichment, fraudulent concealment or conversion.
C. As to McCann and L'Oreal
Plaintiff cannot assert a cause of action for an accounting against McCann, Maybelline or L'Oreal. She admits that modeling agencies with apparent authority were paid for Usages by McCann and L'Oreal (see, Compl. ¶¶ 42, 51, 58, 60-64, 82, 135). Nevertheless, based on allegations allegations in paragraph 139 of the complaint that MADS and CDS generally "have continued to improperly use the Plaintiffs' images despite having failed to pay them for their continued or renewed use" (Memorandum in Opposition, NYSCEF Doc. No. 335, p. 5), she argues that the complaint should not be dismissed as to McCann and L'Oreal. Paragraph 139 of the complaint is insufficient to support denial of the motion. Contrary to plaintiff's argument, paragraph 139 does not apply to these defendants as it refers to "any instance where payment has not been made" (Compl. ¶ 139). The complaint must be dismissed as to McCann, L'Oreal and Maybelline.
Motion sequence no. 15 seeks dismissal of the complaint as to McCann, L'Oreal and Maybelline. The complaint does not allege any specific facts addressed to Maybelline.
Accordingly, that branch of the motion that relates to Maybelline is granted for the reasons discussed in Section III A, above of this decision and order.
D. Other Matters
The court need not address that branch of the motions that are based on statute of limitations grounds given that the case must be dismissed. The requests for imposition of sanction are denied.
The complaint as drafted is flawed and must be dismissed for that reason. However, plaintiff and the other models and former models she purports to represent are not left without a remedy. If, as the complaint alleges, modeling agencies fail to pay models and former models fees contractually owed to them, aggrieved persons may sue to enforce their contract rights and may invoke class action procedures in proper cases. If in a given case, there is no contract, a cause of action in quasi contract may be available. If advertisers fail to obtain and pay for Usage extension rights, remedies may be available to aggrieved persons under the New York Civil Rights Law and under the common law.
Accordingly, it is hereby
ORDERED that the motions of defendants Publicis, Saatchi, and Saatchi North America, Inc. (motion sequence no. 004) and Gamier, LLC, (motion sequence no. 013) are granted and the complaint is dismissed in its entirety and with prejudice as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further,
ORDERED that the motion to dismiss the complaint as against defendant Elite Model Mgt. Corp. (motion sequence no. 002), is granted and the complaint is dismissed in its entirety and with prejudice as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further,
ORDERED that the motions to dismiss the complaint as to defendants Next Mgt. LLC (motion sequences no. 019) and Major Model Mgt., Inc. (motion sequences no. 010) is granted and the complaint is dismissed as to said defendants, and it is further
ORDERED that the motions to dismiss the complaint as against defendants McCann, L' Oreal and Maybelline (motion sequences no. 015) is granted and the complaint is dismissed as to said defendants with prejudice as to the first cause of action and without prejudice as to the sixth cause of action; and it is further
ORDERED that the complaint is hereby dismissed in its entirety sua sponte on motion of the court as against defendants MC2, Silent, Supreme, APM, 2 Model, NYC Mgt. and Laird without costs and disbursements; and it is further,
ORDERED that the motions to dismiss the complaint as against defendants IMG (motion sequence no. 001), Men Women (motion sequence no. 003), 1 Model (motion sequence no. 005), Red (motion sequence no. 006), DNA (motion sequence no. 007), VNY (motion sequence no. 008), Ford (motion sequence no. 011), Trump (motion sequence no. 012), Fusion (motion sequence no. 018), S Model (motion sequence no. 020), Wilhelmina (motion sequence no. 021), and Click (motion sequence no. 024), are GRANTED and the complaint is dismissed in its entirely with prejudice (except the second cause of action which is dismissed without prejudice) as against said defendants with costs and disbursements to said defendants as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further,
ORDERED that the motions to dismiss the complaint as against defendants Kirshenbaum (motion sequence no. 016), Leo Burnett (motion sequence no. 022), Revlon (motion sequence no. 014), Sephora (motion sequence no. 017), Aveda (motion sequence no. 023) are GRANTED and the complaint is dismissed with prejudice as to the first cause of action and without prejudice as to the sixth cause of action without prejudice with costs and disbursements to said defendants as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further
ORDERED that those branches of the motions that seek sanctions are denied.
This constitutes the decision and order of the Court.
ENTER,
_________________
O. PETER SHERWOOD, J.S.C.