Opinion
30296/08.
Decided August 3, 2010.
Carl Belgrave, Esq., Brooklyn, NY, Attorney for Plaintiff.
Scott Lukowski, Esq., Colwell, Colwell Petroccione, LLP, Albany, NY, Attorney for Defendant.
Upon the foregoing papers, in this action by plaintiff Carlton Springer (plaintiff) for breach of an alleged oral contract, defendants Linden Seventh Day Adventist Church (the Linden Church) and David Glover (collectively, defendants) move for summary judgment dismissing plaintiff's complaint as against them on the basis that there is no substantial issue of fact in this case or, alternatively, for an order dismissing this action, pursuant to CPLR 3211 (a) (10), 1003, and 1001, based upon the ground that the court should not proceed in the absence of an entity that should be a party to this action.
The Linden Church is an unincorporated association which is governed by its own Church Board. David Glover, who is an ordained minister of the Seventh Day Adventist movement and is employed by the Northeastern Conference of Seventh Day Adventists, was the pastor of the Linden Church and the chairperson of the Church Board. Within the Linden Church, there are many committees and subcommittees which report to the Church Board. The Higher Ground Committee is a subcommittee of the Finance Committee comprised of certain members of the Linden Church. The Higher Ground Committee's purpose was to undertake a project referred to as the Higher Ground Project. The goal of the Higher Ground Project was to increase the accessibility of the Linden Church's building for the elderly and disabled by installing an elevator and handicapped accessible restrooms.
Since the Linden Church is an unincorporated association, the Religious Corporation Law does not apply to it.
The minutes of the Church Board's meeting on January 28, 2007 reflect that Claudette Josephs a/k/a Cee Josephs (Cee Josephs) addressed the Church Board, on behalf of CJG Production Ministry, a ministry formed by her, with a proposal to benefit the Linden Church's Higher Ground Project by holding a music concert at the York College Performing Arts Auditorium featuring multiple choirs of the Linden Church and various other musical performers. The concert was to be professionally filmed and thereafter reproduced as both a CD and DVD for sale. Cee Josephs proposed that proceeds from the sale of the concert tickets, CDs, and DVDs would be donated to the Higher Ground Project after production costs were deducted. By letter dated January 29, 2007, following a presentation made in person the prior evening, Cee Josephs provided the details of her proposal to the Church Board.
Cee Josephs estimated that the cost to hold the event would be $31,700, and that the estimated revenues would be $227,320, leaving a gross profit of $195,620, out of which she or CJG Productions would receive a 10% promotion fee. Cee Josephs further requested that the Linden Church make a deposit of $1,000 in the form of a loan to CJG Productions in order to secure the auditorium. Cee Joseph's proposal was then referred to the Linden Church's Finance Committee for its comments and recommendation.
After Cee Josephs' proposal was discussed at the Finance Committee's meeting held on February 8, 2007, the Finance Committee did not recommend that the Linden Church sponsor that event as proposed due to concern that if it did so, a precedent would be set for sponsoring other for profit concerts and events, and also due to concern about risk management issues. The Finance Committee noted, however, that this did not mean that the Linden Church, its board, and its members would not be enthusiastically encouraged to support such an event. As reflected by the Church Board's minutes, on February 11, 2007, the Finance Committee presented its recommendation not to pursue Cee Josephs' proposal to the Church Board. On March 18, 2007, the Church Board, noting that the Finance Committee did not recommend that the Linden Church sponsor the event proposed by Cee Josephs, rejected Cee Josephs' proposal. The Church Board, by letter dated April 3, 2007, notified Cee Josephs of the rejection of her proposal, noting that the since a project of the type proposed by her needed much planning time and human resources, it had decided that it would not be feasible to accommodate her request on the church calendar that year.
David Glover states, in his affidavit, that Cee Josephs then told him that she would pay for the filming of a concert of the Linden Church choir entirely out of her own funds. Joan Davis, who was the chairperson of the Higher Ground Committee, also testified that Cee Josephs told her that it was her project and that she would finance it (Joan Davis' Dep. Transcript at 13). Cee Josephs denies agreeing to pay for the film, stating that while she agreed to spearhead the project, she never agreed to pay the expenses out of her own pocket (Cee Josephs' Dep. Transcript at 24).
Significantly, no affidavit has been submitted by plaintiff in opposition to defendants' motion nor has plaintiff submitted a Statement of Material Facts to contest defendants' version of the facts, leaving defendants' representations as to the facts undisputed and deemed to be admitted, pursuant to Rule 19-a of the Commercial Division of the Supreme Court ( see 22 NYCRR 202.70). Plaintiff has only submitted the affirmation of his attorney, who has no personal knowledge of the facts. Plaintiff's attorney's affirmation lacks evidentiary value ( see Zuckerman v City of New York, 49 NY2d 557, 563).
According to plaintiff's deposition testimony (which was submitted by defendants), Cee Josephs approached him in October 2007 with the idea of making a documentary film of the musical journey of the Linden Church, and Cee Josephs contracted with him to make this film (Plaintiff's Dep. Transcript at 16). Plaintiff admitted that he did not speak to the Church Board, but he stated that he spoke to both Joan Davis and David Glover about making the film, and claimed that the Higher Ground Committee approved the contract ( Id. at 16,18-19, 23). Plaintiff testified, at his deposition, that David Glover had told him to do whatever he needed to do to help the Linden Church raise funds for the Higher Ground project, and that, after he was finished, he would be compensated ( Id. at 18). It is undisputed, however, that (as attested to by David Glover in his affidavit) David Glover, at no time, discussed any terms of any contract with plaintiff, that he did not ask plaintiff to make a film, and that he did not agree to pay plaintiff for his services in connection with the filming of the concert.
According to Cee Josephs, David Glover, as the chairperson of the Church Board, said he discussed it with the Church Board, and gave his approval, and she also believed that the Church Board gave its approval (Cee Josephs' Dep. Transcript at 46-47, 50). However, Cee Josephs admitted that she did not get approval directly from the Church Board, and that the Church Board never said that it would pay plaintiff $93,000 ( Id. at 46). While plaintiff testified, at his deposition, that Cee Josephs told him that she had received approval from the Linden Church and that Joan Davis told him that the Linden Church had given him the "go-ahead" as to the film, he conceded that he made the contract with Cee Josephs and that he never spoke to the Church Board for approval (Plaintiff's Dep. Transcript at 22-23).
Plaintiff admitted that he did not discuss price or give an estimate of how much it would cost to make the film, but claimed that he did not do so because he did not yet know the amount that these costs would total ( Id. at 19, 22). According to Cee Josephs, compensation for plaintiff was never discussed with David Glover or the Church Board, and she only had spoken to David Glover about plaintiff being compensated from the monies that would be received from the sales of DVDs of the film (Cee Josephs' Dep. Transcript at 37).The minutes of the Church Board meeting held on December 16, 2007 reflect that the Church Board voted to allow the concert to be performed in the lower sanctuary of the Linden Church. On December 22 or 29, 2007, the Church Board voted to approve moving the concert to the main sanctuary of the Linden Church. There is no mention of any commitment to pay the costs of filming and the $1,000 deposit initially requested was not paid.
In January 2008, plaintiff began filming the documentary film called Rocking Jerusalem at the Linden Church, which included the filming of the concert at the Linden Church. The Rocking Jerusalem film was completed by May 2008. There was an advance screening of the Rocking Jerusalem film on April 5, 2008, followed by a second screening on May 24, 2008. On June 17, 2008, there was a private screening in David Glover's office with members of the Higher Ground Committee present. On June 21, 2008, plaintiff met with David Glover to discuss his payment, and, when he asked for payment of $93,000, he was told by David Glover that the Linden Church was not going to approve of paying him the amount of money he spent on making the film because a lot of members of the Church Board said that they did not approve it (Plaintiff's Dep. Transcript at 38).
According to Cee Josephs, although she thought the film was "fantastic," the Higher Ground Committee rejected it, commenting that they did not like how the Linden Church and some of the groups were portrayed, the way that plaintiff filmed some of the choirs, and how some of the members looked in it (Cee Josephs' Dep. Transcript at 26-29). Joan Davis stated that she did not like the film or how she came out in it (Joan Davis' Dep. Transcript at 26-27). David Glover stated that he did not want the film to be released to the public because he believed that it was not an accurate or flattering depiction of the members of the Linden Church.
In July 2008, after the film was already made, plaintiff first met with the Church Board, and some of them told him that they had no knowledge of the project (Plaintiff's Dep. Transcript at 39). The Linden Church refused to pay plaintiff any compensation for the services provided by him. No DVDs of the film were ever made, and plaintiff has conceded that the Linden Church has received no benefits from the film, and that the film did not raise any funds for the Higher Ground Project ( Id. at 22).
On November 6, 2008, plaintiff brought this action against defendants, alleging that the Linden Church, through its representatives, entered into an oral agreement with him for the production of the Rocking Jerusalem film, and that it agreed that upon completion of the film, he would be paid for his work. Plaintiff asserts that he has made demands for payment, but defendants have refused to pay him for the services provided by him. Plaintiff seeks recovery of $93,000. Defendants have interposed an answer to plaintiff's complaint, and discovery has been completed, including the taking of the depositions of plaintiff, Cee Josephs, and Joan Davis.
In support of their motion, defendants initially argue that plaintiff has failed to properly join and serve the Linden Church. Specifically, defendants contend that pursuant to General Association Law § 13, an unincorporated association must be joined in an action by personally serving an officer. Defendants assert that since David Glover is an employee of the Northeastern Conference of Seventh Day Adventists and has never been an officer of the Linden Church, no personal jurisdiction has been obtained over the Linden Church.
Defendants' argument must be rejected. While David Glover is not the president or treasurer of the Linden Church, where an unincorporated association fails to timely raise the defense of lack of personal jurisdiction by failing to assert it within the time parameters of CPLR 3211 (e), it is waived ( see Hura v Mitchell, 100 AD2d 780, 780). Here, the Linden Church has waived its defense of lack of personal jurisdiction by not moving for judgment on that ground within 60 days after service of its answer ( see CPLR 3211 [e]; Garcea v Battista , 53 AD3d 1068 , 1070; Aretakis v Tarantino, 300 AD2d 160, 160; DeSeno v HIP Hosp., 258 AD2d 555, 555).
Defendants additionally contend, as a basis for dismissal of plaintiff's action, that Cee Josephs and CJG Productions (which, as noted above, is Cee Josephs' ministry) are necessary parties to this action, and that since plaintiff has failed to join them, this action should be dismissed pursuant to CPLR 3211 (a) (10) on the basis that the court should not proceed in the absence of persons who should be parties. Defendants further rely upon CPLR 1003, which provides that the "[n]onjoinder of a party who should be joined under [CPLR] 1001 is a ground for dismissal of an action without prejudice unless the court allows the action to proceed without that party under the provisions of that section." CPLR 1001 (a) provides that necessary parties are "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action."
Here, as discussed above, plaintiff has conceded that he had entered into the alleged oral contract with Cee Josephs (Plaintiff's Dep. Transcript at 22). It is also undisputed that the Church Board did not have any contractual discussions with plaintiff until after the film was made. Thus, there was no privity of contract between plaintiff and defendants, but only an alleged oral contact between plaintiff and Cee Josephs, who was one of the Linden Church's parishioners. Additionally, the Church Board only interacted with CJG Productions, through Cee Josephs, regarding the project and never discussed it with plaintiff or entered into any contract directly with plaintiff. Consequently, Cee Josephs and CJG Productions would be necessary parties to this action, and plaintiff's failure to join them necessitates the dismissal of this action ( see CPLR 1001,1003; 3211 [a] [10]).
In any event, dismissal of this action is mandated on the basis that no contract ever existed between the parties to this action. A court's determination of whether a contract exists centers on the parties' intent, and whether there was a meeting of the minds regarding the material terms of the deal ( see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109; Brands v Urban, 182 AD2d 287, 290). "To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" ( see Matter of Express Indus. Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589). There must also be privity of contract ( see La Barte v Senaca Resources Corp., 285 AD2d 974, 975; M. Paladino, Inc. v Lucchese Son Contr. Corp., 247 AD2d 515, 515; Vogel v Lyman, 246 AD2d 422, 423). These issues are generally questions of law, appropriate for disposition on a summary judgment motion ( see Brands, 182 AD2d at 290; Gupta v University of Rochester, 57 AD2d 731, 731).
In the case at bar, there was never a meeting of the minds between defendants and plaintiff on the terms of the alleged contract since there was no discussion between the Church Board and plaintiff regarding the contract. As set forth above, all of the Church Board's interactions regarding the project were with CJG Productions through Cee Josephs, and not directly with plaintiff. Significantly (as noted above), some members of the Church Board had no knowledge of the project until after the film was completed, and David Glover never had any contractual discussion with plaintiff regarding his payment until after he finished filming the documentary. There was no privity of contract between plaintiff and defendants ( see La Barte, 285 AD2d at 975; M. Paladino, Inc., 247 AD2d at 515; Vogel, 246 AD2d at 423).
David Glover had no authority to bind the Linden Church since it was governed by a Church Board, and only the Church Board could bind it. While David Glover is the pastor of the Linden Church, he (as discussed above) is employed by the Northeastern Conference of Seventh Day Adventists, a not-for-profit religious corporation. David Glover is not an officer of the Linden Church, which is an unincorporated association.
While plaintiff was permitted to use the Linden Church facilities to make the film, this does not constitute approval of the contract, but merely a license to use such facilities. There is no evidence of any binding agreement between plaintiff and defendants.
Notably, there was no written agreement despite the fact that this is the type of agreement that would normally be put into writing ( see Ciaramella v Reader's Digest Assn., Inc., 131 F3d 320, 323 [2d Cir 1997]; R.G. Group, Inc. v Horn Hardart Co., 751 F2d 69, 74 [2d Cir 1984]). Plaintiff admitted, at his deposition, that he normally would have a written contract in such a situation (Plaintiff's Dep. Transcript at 17). Moreover, the Church Board had a process for approving any proposals brought before it, which involved first bringing the proposal to the Finance Committee and then bringing the proposal before the Church Board for final approval. This process would necessitate some written agreement being put forth and the approval of the Church Board, and there was no such written agreement.
Furthermore, plaintiff acknowledged that no material terms of the contract (including payment) were ever stated, defined, or agreed upon, and that the Church Board never agreed to pay him (Plaintiff's Dep. Transcript at 19, 22). There was no agreement as to the details of what type of film would be made, the starting or ending date of such production, and no price terms were discussed between plaintiff and defendants. Thus, plaintiff cannot sustain his claim for breach of contract ( see Matter of Express Indus. Term. Corp., 93 NY2d at 589).
Plaintiff's attempt, in his attorney's affirmation, to raise claims of equitable estoppel and quantum meruit, must be rejected. These claims were not pleaded in plaintiff's complaint, and are improperly raised, after discovery has been completed, for the first time in plaintiff's opposition to defendants' motion for summary judgment, In any event, such claims could not be sustained as they are not viable.
In order to allege a viable claim for quantum meruit based on services rendered, the defendant must have derived some benefit which resulted in its unjust enrichment ( see Stephen Pevner, Inc. v Ensler, 309 AD2d 722, 723; Heller v Kurz, 228 AD2d 263, 264). Here, plaintiff has admitted that the Linden Church did not receive any benefit from the film since no funds were raised from it (Plaintiff's Dep. Transcript at 22).
Plaintiff also cannot assert a claim for equitable estoppel since such a claim requires "a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would reasonably induce reliance, and reliance by the party seeking estoppel to his or her detriment" ( CCLF, Inc. v Bonin , 24 Misc 3d 1221[A], 2009 NY Slip Op 51537[U], *10 [Sup Ct, Kings County 2009]; see also Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 81-82). In this case, defendants could not have induced reasonable reliance by plaintiff nor could plaintiff have reasonably relied upon any misrepresentation by defendants since, by plaintiff's own admissions, he did not get approval from the Church Board for the project, there was never an agreement on the price of his services before he commenced work on the project, and he did not meet with the Church Board until after the film was already made (Plaintiff's Dep. Transcript at 17-19, 22, 39).
Accordingly, defendants' motion for summary judgment dismissing plaintiff's complaint as against them is granted.
This constitutes the decision, order, and judgment of the court.