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VJK PRODUCTIONS v. FRIEDMAN/MEYER PRODUCTIONS

June 14, 1983

VJK PRODUCTIONS, INC., Plaintiff,
v.
FRIEDMAN/MEYER PRODUCTIONS, INC., Defendant



The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

 Plaintiff, VJK Productions, Inc. ("VJK"), a California corporation engaged in the business of furnishing the services of Victor J. Kemper ("Kemper"), a motion picture director of photography, commenced this action against Friedman/Meyer Productions Ltd. ("Friedman/Meyer"), a New York corporation which produces motion pictures, alleging that Friedman/Meyer breached its employment contract with VJK.

 Plaintiff alleges that, on a date between September 1980 and November 1980, VJK entered into a written employment agreement with Friedman/Meyer pursuant to which VJK agreed to furnish the services of Victor J. Kemper as Director of Photography for defendant's proposed motion picture production, "Brenda Starr" ("Kemper Contract"). Pursuant to the terms of the Kemper Contract, which was negotiated on plaintiff's behalf by Kemper's agent, Phil Gersh ("Gersh"), Kemper was to render services to defendant at a salary of $6,500 per five day work week for the longer of (1) the time required to complete the principal photography on the film or (2) a minimum period of twelve consecutive weeks commencing January 12, 1981. The Kemper Contract expressly provided that Kemper's services were retained on a "pay or play" basis, a term understood in the industry to mean that Kemper was to be paid for the minimum twelve week period whether or not the film went forward. (Trial Transcript at 17-18 ("Tr. ")).

 On March 7, 1980, prior to entering into the Kemper Contract, Friedman/Meyer entered into a written agreement with International Film Investors, L.P. ("IFI") whereby IFI agreed to provide partial financing for defendant's production of "Brenda Starr," and to assist Friedman/Meyer in obtaining the balance of the necessary financing (the "Financing Agreement"). In consideration therefor, IFI was to receive a share of the film's profits. (Plaintiff's Exhibit 7.)

 At the time it entered into the Financing Agreement, Friedman/Meyer informed IFI in writing that a federal grand jury was investigating certain of Friedman/Meyer's transactions, which transactions, while unrelated to the "Brenda Starr" production, involved its chairman, Stephen R. Friedman, and its president, Irwin Meyer (the "Indictment Letter"). In the Indictment Letter Friedman/Meyer and IFI agreed that, in the event Friedman or Meyer was indicted, IFI would have the right to assume all of Friedman/Meyer's production functions relating to "Brenda Starr." In addition, the Indictment Letter contained an irrevocable power of attorney from Friedman/Meyer permitting IFI to assign to itself all of Friedman/Meyer's rights to the motion picture, subject to the rights of any third party. (Plaintiff's Exhibit 8.)

 On November 14, 1980, a federal grand jury returned an indictment naming Friedman and Meyer as defendants in a criminal action. Ten days later, International Film Investors, Inc., managing partner of IFI, notified Friedman/Meyer that it was exercising its right under the Indictment Letter to assume the functions of the production company. Pursuant to the power of attorney granted by Friedman/Meyer, IFI executed an assignment to itself of all of Friedman/Meyer's right, title and interest to the film, including all contract rights. It thereupon ceased advancing funds to Friedman/Meyer. (Tr. at 79-81.)

 Plaintiff alleges that neither VJK nor Kemper was ever advised by Friedman/Meyer that the production would not go forward. It further alleges that, on January 12, 1981, it demanded payment of Friedman/Meyer pursuant to the terms of the Kemper Contract but that, notwithstanding Kemper's readiness, willingness and ability to perform, Friedman/Meyer wrongfully refused to make payment. (Tr. at 77-80.)

 Plaintiff commenced this action seeking $72,000 in damages, which he alleges represents an amount equal to the twelve unpaid weekly installments, plus interest on that sum from January 12, 1981. *fn1" It contends that it has made all reasonable efforts to mitigate damages. (Tr. at 26-28.)

 Friedman/Meyer first argues that its obligation to perform never accrued because Kemper and Gersh impliedly agreed to a condition precedent to the Kemper Contract, to wit, that IFI would provide funds to Friedman/Meyer for "Brenda Starr's" production costs, including the costs of employing Kemper, which condition precedent was never satisfied. As evidence of Gersh's, and through him, Kemper's implied agreement, Friedman/Meyer alleges that it told Gersh that financing for the production costs of "Brenda Starr" was being provided by IFI, and that IFI had to approve all contracts it entered into in connection with the film. *fn2" Friedman/Meyer seeks to excuse its failure to request that the alleged condition precedent be inserted in the Kemper Contract by claiming that it did not anticipate that IFI would take over the film.

 Plaintiff denies that any implied condition precedent to the Kemper Contract ever existed and argues further that, in any event, the Court may not properly consider evidence of any such implied condition precedent since it would contradict the express "pay or play" provision of the Kemper Contract. *fn3" This contention has merit.

 When parties to an agreement express their understanding in a written contract with the intention that it embody their full and final agreement, *fn4" the Parol Evidence Rule generally bars the introduction of evidence of any prior or contemporaneous understanding if that evidence would vary or contradict the terms of the writing. Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928). While one of the exceptions to the Parol Evidence Rule permits the introduction of evidence to prove an oral agreement precedent to the contract, that exception is inapplicable if the alleged condition precedent contradicts the express language of the writing. Hicks v. Bush, 10 N.Y.2d 488, 180 N.E.2d 425, 225 N.Y.S.2d 34 (1962); Tropical Leasing, Inc. v. Fiermonte Chevrolet, Inc., 80 A.D.2d 467, 439 N.Y.S.2d 566 (4th Dep't 1981). That is clearly the case here.

 Irwin Meyer, defendant's president, testified that, at the time he executed the Kemper Contract, he understood the term "pay or play" to mean that Kemper was to be paid for his services whether or not the film went forward. (Tr. at 50.) That interpretation of the contract by defendant's own president is flatly inconsistent with any alleged implied condition that Kemper's right to payment depended upon Friedman/Meyer's obtaining financing from IFI.

 Even assuming arguendo that the evidence proffered by Friedman/Meyer were properly admissible, the Court concludes that it would be wholly insufficient to prove the existence of the alleged implied condition precedent. First, the Court rejects the testimony of Irwin Meyer that he told Gersh that financing for the production costs of "Brenda Starr" was being provided by IFI and accepts as true Gersh and Kemper's testimony that they neither inquired into nor knew of the arrangements. (Deposition of Irwin Meyer at 91; Deposition of Philip Gersh at 9-12, 18-19; Testimony of Victor Kemper, Tr. at 31-32.) Secondly, even assuming arguendo that plaintiff knew of the financing arrangements, it does not follow that it agreed that receipt of such financing would be a condition precedent to the Kemper Contract. Indeed, the Court finds that, had the parties in fact agreed to such a condition, it would have been included in the Kemper Contract. Defendant's claim that it did not expect IFI to take over the film is not persuasive. The Indictment Letter, which was executed prior to the time that the Kemper Contract was made, clearly demonstrates that both the assignment to IFI and the takeover were reasonably foreseeable by Friedman/Meyer at the time that it entered into the Kemper Contract.

 Defendant next argues that, even assuming arguendo that the Kemper Contract required it to pay plaintiff whether or not it obtained financing, it still may not be found liable because the assignment to IFI (1) rendered performance impossible and (2) ...


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