GRIFFIN AMIEL v. FRANK TERRIS ORCHESTRAS (1998)

THE WEDDING SINGER

The plaintiff, Bridget Griffin-Amiel [“Bridget”], and Michael Amiel [“Michael”], began planning their wedding nearly a year in advance.   Of particular importance was the selection of a wedding singer to perform at their reception.

The Wedding Showcase

The defendant, Frank Terris Orchestras Ltd. [“Terris”], provides musicians and singers for weddings and other functions.   Terris advertises widely and encourages prospective brides and grooms to attend its wedding showcase ¹ [the “Showcase”] which features a five or six piece orchestra and seven or eight singers.   Typically, couples will select one or two singers to perform along with the orchestra.   Bridget and Michael attended several of Terris' Showcases and liked the style and melodious sounds of the singer Paul Rich [Pl.Ex. 1].

The Wedding Singer Contract

Bridget met with Terris' sales representative, Kathleen Caucci [“Caucci”], to discuss her wedding plans.   Bridget informed Caucci that she and Michael liked Paul Rich and wanted him to be their wedding singer.   After Caucci guaranteed that Paul Rich would sing at her wedding Bridget signed a Terris' contract providing for a five piece orchestra and two singers, Paul Rich and Gloria Carpenter, in consideration for the payment of $3,275.00, of which Bridget gave Caucci a deposit of $1,275.00 [Pl.Ex. 2].

The Disclaimer Of Liability

The contract contained the following disclaimer of liability:

“4. Performance:  Frank Terris Orchestras, Ltd. agrees to provide the musical services set forth above but shall be free without liability to cease services [due] to act(s) of God or circumstances beyond its control.”

The Wedding Singer Doesn't Show

The wedding was scheduled to begin at 6:30 PM on March 14, 1998.   At 5:30 PM a five piece Terris orchestra showed up along with the singer Gloria Carpenter.   However, the melodious Paul Rich, the centerpiece of Bridget's plans for her wedding reception and the primary reason why she hired the defendant, failed to appear.   Instead of Paul Rich, Terris substituted the wedding singer, Tony Avena, of whom Bridget and Michael had never heard.

The Magic Is Missing

The Terris' musicians played and the singers sang but the magic that Bridget and Michael expected Paul Rich to bring to their wedding reception was noticeably absent.   Some weeks later they filed a complaint with Terris.

“I am writing to request a partial refund of $1637.50 ․ I also want to let you know that your business practices stink ․ I contracted ․ for Paul Rich ․ to perform at my wedding ․ On the day of my wedding, a different person showed up ․ At the very least, you owed me a phone call to tell me that Paul was no longer with you and that he would not be performing ․ At the time of booking, I specifically asked how could you guarantee me that particular singer so far in advance ․”.

Terris Blames Rich

In a written response [Pl.Ex. 4], and later at trial through the testimony of Tony Avena, Terris blamed Paul Rich for refusing to perform [“Mr. Paul Rich had not indicated to our office that there was a problem fulfilling his obligations ․ However, last minute difference could not be corrected”], proclaimed the wedding a success nonetheless [“Mr. Tony Avena and Gloria Carpenter along with their fine musicians confirmed your evening was a great success”] and offered a $1,000.00 refund [Pl.Ex. 5] [“find enclosed a reasonable refund check ․ for any misunderstanding caused by Mr. Rich”].

The Lawsuit

After Terris refused to refund additional sums [Pl.Ex. 6] Bridget commenced this lawsuit seeking the return of the full contract price minus the partial refund or $2,275.00 because “they sent a substitute.”

DISCUSSION

Based upon the foregoing, the Court finds that the plaintiff has stated cognizable causes of action for (1) breach of contract (2) negligent misrepresentation and (3) violation of General Business Law § 349 [misleading and deceptive business practices].

Weddings Are Special

Weddings are unique and, hopefully, once in a lifetime events.   Equally important is the wedding reception where family and friends celebrate and congratulate the newly married couple.   Notwithstanding some judicial skepticism² [In Re Anonymous, 44 Misc.2d 38, 39, 252 N.Y.S.2d 946, 947 (1964) (“There is little reason to believe that the permanency or happiness of a marriage bears any relation to the amount spent on the wedding.”) ], brides, grooms and parents spend extraordinary sums and expect the wedding and the reception to be magical and memorable in every respect.   Generally, the Courts agree [see e.g., Levin v. Halston, 91 Misc.2d 601, 602, 398 N.Y.S.2d 339, 340-341 (1977) (“A daughter's wedding is a milestone event in a parent's life ․”);  Esposito-Hilder v. SFX Broadcasting, Inc., 171 Misc.2d 286, 654 N.Y.S.2d 259, 264 (1996), aff'd 236 A.D.2d 186, 665 N.Y.S.2d 697 (3d Dept.1997) (“Plaintiff was demeaned and injured by the speech and conduct of defendants (during a radio show ‘ “routine” ․ called the “Ugliest Bride Contest ³ ” ’), not only as a woman, but as a bride, and a human being at what ought to be one of the most beautiful and memorable occasions of life”);   Grather v. Tipery Studios, 334 So.2d 758, 761 (La.App.1976) ( “bride and groom (were) deprived of the full enjoyment, which they can rightfully expect, of pictures commemorating their wedding”);  Mitchell v. Shreveport Laundries, 61 So.2d 539, 541 (La.App.1952) (“Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste”) ].

Wedding Lawsuits Are Special Too

Besides magic and memories weddings often spawn litigation involving ill fitting, soiled, missing or stolen wedding clothes [see e.g., Ross v. Kirkeby Hotels, Inc., 8 Misc.2d 750, 160 N.Y.S.2d 978 (1st Dept.1957) (honeymoon clothing stolen from car during wedding);  Sagnia-Blythe v. Gamblin, 160 Misc.2d 930, 611 N.Y.S.2d 1002, 1004-1005 (1994) (two hour delay in the delivery of ill-fitting bridesmaids' dresses);  Levin, supra (“custom-made designed dress ․ was totally a disaster”);  Mitchell, supra (groom forced to marry and honeymoon in “soiled suit”) ];  no show wedding bands [see e.g., Deitsch v. The Music Company, 6 Ohio Misc.2d 6, 7, 453 N.E.2d 1302, 1303 (1983) (wedding band failed to appear at reception;  “after much wailing and gnashing of teeth ․ some stereo equipment (provided the music)”) ];  unprofessional wedding photos [see e.g., Grather, supra, at 761 (“less than professional quality of the wedding pictures”) ];  payment disputes [see e.g., Nakash v. Hilton Hotel Corp., 184 A.D.2d 218, 584 N.Y.S.2d 800 (1992) (bride's father sues hotel for fraud in overcharging $31,925 for reception);  Bruno v. Guerra, 146 Misc.2d 206, 549 N.Y.S.2d 925 (1990) (bride's father sues former fiance for $28,000 pre-paid expenses of canceled wedding) ];  and accidents arising from excessive alcohol consumption [see e.g., Dynarski v. U-Crest Fire District, 112 Misc.2d 344, 447 N.Y.S.2d 86 (1981) (14 year old waitress dies after being fed excessive quantities of alcohol by wedding guests)];  fights [see e.g., Pulitano v. Suffolk Manor Caterers, Inc., 245 A.D.2d 279, 664 N.Y.S.2d 480 (2d Dept.1997) (fight between guests at two different wedding receptions) ];  and slips and falls [see e.g., Lee v. Durow's Restaurant, Inc., 238 A.D.2d 384, 385, 656 N.Y.S.2d 321 (1997) (bridesmaid “tumbled to the dance floor” after collision with participants in “human wheelbarrow race”);  West v. United States Fidelity & Guaranty Company, 405 So.2d 877 (La.App.1981) (handicapped person injured attempting to dance the “cha-cha”) ].

Breach Of Contract

 The defendant entered into a contract providing that a five piece orchestra and two singers, Paul Rich and Gloria Carpenter, would perform at plaintiff's wedding reception.   The plaintiff attended defendant's Showcases before selecting Paul Rich to be her wedding singer.   The defendant even guaranteed that Paul Rich would sing at plaintiff's wedding reception.   The plaintiff relied upon defendant's promises, paid the agreed upon price and was disappointed, humiliated and embarrassed when Paul Rich failed to appear.   The substituted wedding singer, Tony Avena, was by no means equivalent to Paul Rich.

The defendant has breached its contract in a material respect by failing to produce Paul Rich [see e.g., Deitsch, supra, 6 Ohio Misc.2d 6, 453 N.E.2d at 1303 (wedding band), Sagnia-Blythe, supra (bridesmaid dresses), Grather, supra, 334 So.2d at 761 (wedding photos) ] and by failing to verify and confirm that Paul Rich would and could honor defendant's contractual promises to the plaintiff [see e.g., Oxman v. Amoroso, 172 Misc.2d 773, 659 N.Y.S.2d 963, 967-968 (1997) (failure to verify au pair's work experience);  Pellegrini v. Landmark Travel Group, 165 Misc.2d 589, 628 N.Y.S.2d 1003 (1995) (failure to verify or confirm tour operator's refund provisions) ].

Disclaimer Void

 To the extent defendant relies upon language in its contract [“shall be free without liability to cease service [due] to act(s) of God or circumstances beyond its control”] to absolve itself of liability its reliance is not well founded.   To enforce this disclaimer would encourage defendant to promise its most popular singer to everyone and then substitute lesser performers with impunity [see e.g., Note, New York Creates A Private Right Of Action To Combat Consumer Fraud:  Caveat Venditor, 48 Brooklyn L.R., 509, 558, N. 207 (1982) ( “ ‘Bait advertising’ is the advertising of merchandise without the bona fide intention of selling it in order to lure consumers into the sales environment and switch the consumer to a different item which is more expensive or better serves the seller's purposes”);  Kozlowski v. Sears, New York Law Journal, November 6, 1997, p. 27, cols. 3, 4 (Yks.Cty.Ct.) (“such a clause is overreaching and unconscionable if for no other reason than it encourages sloppy and careless installation of Sears' windows”) ].

Defendant's disclaimer clause is unconscionable [see e.g., Hertz Corp. v. Attorney General, 136 Misc.2d 420, 424, 518 N.Y.S.2d 704, 707 (1987) (“The concept has been employed primarily in the area of consumer protection, in an attempt to deal with the ‘neverending stream of consumer gypsters and fraudulent operators ․’ ”) ] and null and void as striking at the heart of the bargain contracted for, i.e., producing Paul Rich to perform at plaintiff's wedding reception [see e.g., Walker v. Winks, 168 Misc.2d 265, 269, 640 N.Y.S.2d 428 (1996) (disclaimers void);  Oxman, supra (refund policy null and void) ].

Negligent Misrepresentation

 The defendant promised and guaranteed that Paul Rich would sing at plaintiff's wedding reception.   The plaintiff relied upon this representation, signed defendant's contract and paid defendant $3,275.00.   This amounts to negligent misrepresentation for which defendant is liable [see e.g. White v. Guarente, 43 N.Y.2d 356, 362-363, 401 N.Y.S.2d 474, 478, 372 N.E.2d 315 (1977) (“․ a negligent statement may be the basis for recovery of damages, where there is carelessness in imparting words upon which others were expected to rely and upon which they did act ․”);  Pellegrini, supra, 165 Misc.2d at 594-595, 628 N.Y.S.2d 1003 (travel agent misrepresented tour tickets as being refundable when they were not);  C.T.V., Inc. v. Curlen, New York Law Journal, December 3, 1997, p. 35, col.   1 (Yks.Cty.Ct.) (cancellation rights misrepresented) ].

All of the elements of negligent misrepresentation are met herein including the existence of a special relationship between the plaintiff and defendant.   The defendant is liable for all appropriate damages arising from its negligent misrepresentation.

Violation Of G.B.L. § 349

 New York State General Business Law § 349 [“GBL § 349”] is a broad, remedial statute [see e.g., Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995);  see also Note:  New York Creates A Private Right Of Action To Combat Consumer Fraud:  Caveat Venditor, op.cit.] directed towards giving consumers a powerful remedy.   The elements of a violation of GBL § 349 are (1) proof that the practice was deceptive or misleading in a material respect and (2) proof that plaintiff was injured [see Givens, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 19, General Business Law § 349, p. 565;  McDonald v. North Shore Yacht Sales, Inc., 134 Misc.2d 910, 513 N.Y.S.2d 590 (1987);   Geismar v. Abraham & Straus, 109 Misc.2d 495, 439 N.Y.S.2d 1005 (1981) ].   There is no requirement under GBL § 349 that plaintiff prove that defendant's practices and acts were intentional, fraudulent or even reckless.   Nor does plaintiff have to prove reliance upon defendant's deceptive practices.

The defendant has violated GBL § 349 in the following respects:

 First, the defendant's misrepresentation that it would produce Paul Rich to sing at plaintiff's wedding was false, misleading and deceptive [see e.g., Rossi v. 21st Century Concepts, Inc., 162 Misc.2d 932, 618 N.Y.S.2d 182, 186-187 (1994) (misrepresented pots and pans);  BNI New York Ltd d/b/a Business Network Int'l v. David J. DeSanto, 177 Misc.2d 9, 675 N.Y.S.2d 752 (misrepresented referral organization);  C.T.V., Inc., supra (misrepresented “Beat The System” certificates) ].

Second, the defendant's guarantee that it would produce Paul Rich at plaintiff's wedding reception was false, misleading and deceptive [see e.g., Giarratano v. Midas Muffler, 166 Misc.2d 390, 630 N.Y.S.2d 656, 661-662 (1995) (Midas Warranty Certificate misleading and deceptive) ].

The defendant's misleading and deceptive practices in marketing its services to the general public “have a broad impact on consumers at large” [New York University v. Continental Ins. Co., 87 N.Y.2d 308, 320, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995) ].

DAMAGES

The Court awards the following damages to the plaintiff.

 First, damages will include one half of the full contract price of $3,275.00 or $1,637.50 [see Sagnia-Blythe, supra;  Deitsch, supra, 6 Ohio Misc.2d 6, 453 N.E.2d at 1304;  Grather, supra, 334 So.2d at 761;  Mitchell, supra, 61 So.2d at 540].

 Second, damages will also include $500.00 for the disappointment, humiliation and annoyance suffered by the plaintiff [see Deitsch, supra ($750.00);  Lewis v. Holmes, 109 La. 1030, 34 So. 66, 68 ($575.00);  Grather, supra ($125.00);  Mitchell, supra ($350.00);  Kupferman v. Pakistan Int'l Airlines, 108 Misc.2d 485, 438 N.Y.S.2d 189, 193 (1981) ( $1,355.34);  Yochim v. Mount Hope Cemetery, 163 Misc.2d 1054, 1058-1059, 623 N.Y.S.2d 80 (1994) ($300.00) ].

 Third, pursuant to GBL § 349(h) the Court finds that defendant wilfully violated GBL § 349.   Although the Court would like to treble plaintiff's actual damages of $2,137.50, this amount exceeds the maximum $1,000.00 permissible [see Hart v. Moore, 155 Misc.2d 203, 587 N.Y.S.2d 477, 480 (1992) ].

FOOTNOTES

1.   Besides wedding showcases prospective brides may attend other bridal expositions featuring household items.   See e.g., Rossi v. 21st Century Concepts, Inc., 162 Misc.2d 932, 933, 618 N.Y.S.2d 182, 184 (1994) (“The plaintiff, soon to be a new bride, attended the Great Bridal Expo. The Bridal Expo featured exhibitors displaying a broad spectrum of goods and services, typically purchased by recently engaged young women eager to possess all that a modern American bride should possess ․ Royal Prestige ․ displayed a variety of knives, china, glassware, water filters and cookware.”).

2.   For a delicious spoof of a wedding reception see the movie “The Wedding Singer ” as discussed in Goldschmidt, “ ‘The Wedding Singer’ Is Genially Goofy”, New York Law Journal, February 13, 1998, p. 5, cols. 2, 3 (“In the best scene, Robbie, still reeling from being dumped, sabotages a gig by snarling the J. Geils song ‘Love Stinks' at the bewildered happy couple, and then gets punched out by the bride's outraged father”).

3.   Esposito-Hilder v. SFX Broadcasting, Inc., 171 Misc.2d 286, 288, 654 N.Y.S.2d 259, 261 (1996), aff'd 236 A.D.2d 186, 665 N.Y.S.2d 697 (3d Dept.1997) (“During the ‘Ugliest Bride Contest’, the (disc jockeys) referred to the bridal pictures appearing in the local newspapers published weekly, and invited their listening audience to vote for the ‘Ugliest Bride’ of the brides so pictured”).

THOMAS A. DICKERSON, Judge.