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CLOAK WARDROBE INC., Plaintiff, v. Maher JRIDI, Defendant.
Maher Jridi, Plaintiff, v. Wilhelmina Models, Inc., Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were read on this motion for SUMMARY JUDGMENT.
This case arises out of a dispute between third-party plaintiff Maher Jridi (plaintiff) and third-party defendant Wilhelmina Models, Inc. (defendant), over allegedly unpaid stylist fees and expenses.
Plaintiff is a stylist who provides fashion and styling services to performers and public figures. Defendant became his talent agent in February 2017. (See NYSCEF No. 73.) Under the parties' agreement, defendant was to arrange for plaintiff to provide stylist services to third parties in exchange for a percentage of his fees. (See id. at ¶ 2.) Plaintiff was mostly assigned to jobs working for recording artist Nicki Minaj. (See NYSCEF No. 93.)
The agreement provided that plaintiff's fees for his services (and reimbursements for his expenses) would be collected by defendant and then transferred to plaintiff, minus a 20% commission. (See NYSCEF No. 73 at ¶¶ 2, 4.) The agreement made defendant plaintiff's attorney-in-fact with regard to these transactions. (Id. at ¶ 2.) It further provided that all claims for payment would belong to defendant, not plaintiff, and that defendant would take "all reasonable steps" to collect fees on plaintiff's behalf. (Id.)
Plaintiff, claiming that defendant failed to pay various invoices, is seeking recovery on breach-of-contract and account-stated theories. Defendant now moves for summary judgment under CPLR 3212 on both these causes of action.
A party moving for summary judgment under CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of a material issues of fact." (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 .) If the movant makes that prima facie showing, the burden shifts to the non-movant to produce sufficient evidentiary proof to raise material issues of fact requiring a trial. (Id.) In evaluating the parties' respective showings, the "evidence should be analyzed in the light most favorable to the party opposing the motion." (Martin v. Briggs, 235 AD2d 192, 196 [1st Dept 1997].)
I. Account Stated
Defendant's motion for summary judgment as to plaintiff's account-stated claim is granted.
An account-stated claim is based on an implied or express agreement between the parties to treat a statement of account as correct—thus evidencing an obligation on the part of one party to pay the other the amounts given in the statement. (See Jim-Mar Corp. v. Aquatic Constr., Ltd., 195 AD2d 868, 869-870 [3d Dept 1993].) That is, this claim "assumes that there exists some indebtedness owing between the parties" as set forth in the statement(s) at issue. (Gurney, Becker & Bourne, Inc. v. Benderson Dev. Co., 47 NY2d 995, 996 .) An account stated "cannot be used to create liability where none otherwise exists." (Ryan Graphics, Inc. v. Bailin, 39 AD3d 249, 251 [1st Dept 2007] [emphasis added].)
Here, the agreement between plaintiff and defendant provided that "monies owed to [plaintiff] from clients ․ including ․ expenses ․ will be paid to you when payment is received by Wilhelmina." (NYSCEF No. 73 at ¶ 2 [emphasis added].) The indebtedness upon which plaintiff could base an account-stated claim thus would not arise until a given bill was collected. And when asked whether he believed that defendant had collected fees on his behalf, but not distributed his share to him, plaintiff said, "No. I believe [Minaj] didn't send the money to [defendant] and of course [defendant] ․ can't wire me ․ money that [it] didn't receive." (NYSCEF No. 70 at 80.) In these circumstances, evidence that defendant retained invoices sent to it by plaintiff for services plaintiff rendered to Minaj is not enough, without more, to raise a dispute of fact on plaintiff's account-stated claim. (See M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 AD2d 515, 516 [2d Dept 1998] [holding that plaintiff could not state an account-stated claim based on allegations that "plaintiff sent the appellant copies of invoices, the originals of which had been directed to the codefendants, to solicit the appellant's assistance in obtaining payment" from codefendants].)
II. Breach of Contract
Defendant's motion for summary judgment as to plaintiff's cause of action for breach of contract is granted in part and denied in part.
The elements of a breach-of-contract claim are "the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages." (Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].)
It is effectively undisputed that defendant, consistent with their contract passed along to plaintiff the fees that Minaj paid for plaintiff's stylist services (minus defendant's 20% cut). (See NYSCEF No. 93 at 7.) Plaintiff contends instead that defendant breached the contract by failing to take reasonable steps on plaintiff's behalf to collect unpaid stylist fees from Minaj, as the contract required. As defendant points out, though, plaintiff's complaint did not allege any such failure. The complaint alleged only that defendant failed to pay plaintiff directly for invoiced stylist fees (see NYSCEF No. 14 at ¶¶ 14, 25); and, as discussed above, defendant was not obligated to make those payments without first having received payment from Minaj.
This court agrees with defendant that a material difference exists between claims that (i) defendant failed to pay over to plaintiff fees it received from Minaj, and (ii) defendant failed to take reasonable steps to collect plaintiff's fees from Minaj. Allowing plaintiff to rely on the latter claim at summary judgment thus would impermissibly prejudice defendant under CPLR 3013. (See Scholastic Inc. v. Pace Plumbing Corp., 129 AD3d 75, 80 [1st Dept 2015] [discussing prejudice for CPLR 3013 purposes].) Defendant is entitled to summary judgment on plaintiff's breach-of-contract claim as it relates to unpaid invoices.
This court reaches a different conclusion with respect to plaintiff's contention that defendant breached the contract by failing to take reasonable steps to ensure that Minaj returned apparel that plaintiff had rented for particular stylist jobs. The complaint alleges that Minaj's failure to return the apparel had exposed plaintiff to substantial liabilities to entities like Cloak, a clothing library that is the first-party plaintiff in this action. (See NYSCEF No. 14 at ¶¶ 5-6, 15-17, 25.) And the complaint expressly alleges that despite requests from plaintiff, "Wilhelmina has refused to secure return of the apparel" from Minaj.1 (Id. at 18-19.)
This court concludes that these allegations sufficed to put defendant on notice of plaintiff's apparel-related contract claim under CPLR 3013; and that under plaintiff's contract with defendant, plaintiff's potential liabilities to Cloak and similar entities due to Minaj's asserted failure to return apparel could constitute work-related expenses that defendant was obligated to attempt to recoup for plaintiff from Minaj. The court further concludes that a material dispute of fact exists about whether defendant took "all reasonable steps to collect the amounts due" from Minaj for unreturned apparel, as it was contractually required to do. (NYSCEF No. 73 at ¶ 2.) Defendant contends the evidence reflects that it "undertook substantial efforts to secure ․ return of any garments." (NYSCEF No. 95 at 3.) This court disagrees: Each piece of record evidence that defendant cites for this proposition pertains to plaintiff's stylist fees—not extra apparel-related costs that plaintiff was forced to incur for nonreturned garments.
Accordingly, it is
ORDERED that the branch of defendant's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's account-stated claim is granted; and it is further
ORDERED that the branch of defendant's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's breach-of-contract claim with respect to unpaid stylist fees is granted; and it is further
ORDERED that the branch of defendant's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's breach-of-contract claim with respect to expenses incurred due to unreturned apparel is denied.
1. Defendant's contention on reply that "Jridi did not raise [an] allegation in his pleading" about seeking recovery of apparel from Minaj is incorrect. (NYSCEF No. 95 at 3.)
Gerald Lebovits, J.
Response sent, thank you
Docket No: 650442/2018 and 595466/2018
Decided: November 24, 2020
Court: Supreme Court, New York County, New York.
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