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BURZYNSKI v. TRAVERS

March 10, 1986

LESZEK BURZYNSKI, Plaintiff,
v.
THOMAS TRAVERS, TERENCE O'LEARY and MIAM PRODUCTIONS, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

THOMAS C. PLATT, D.J.

 THE NATURE OF THE CASE

 The alleged breach of a contract to direct a television movie precipitated this action which came on for a bench trial on November 12, 1985. The Court's jurisdiction arises under 28 U.S.C. § 1332(a)(2), as plaintiff is a citizen of the United Kingdom, defendants are citizens of the State of New York and the amount in controversy exceeds $10,000.

 FACTUAL BACKGROUND

 The parties to this litigation were collaborators in the production of a television film, entitled, "Miracle in a Manger." Defendant Thomas Travers (Travers) wrote the screenplay; defendants Miam Productions, a New York limited partnership and Terence O'Leary *fn1" (O'Leary) were responsible for the financing of the production.

 When the project was first conceived in the summer of 1984 Travers selected Leszek Burzynski (Burzynski), a British director with both BBC and American television credits, to direct the picture. Burzynski and Travers signed a letter agreement dated August 22, 1984. (Pl's Ex. 1). The agreement provided that Burzynski's services would be exclusively available from August 22 through September 15, 1984 for a stated fee of $25,000 payable in two installments, plus reimbursement of reasonable pre-production and production period expenses and 5% of the net profits of the film. If defendants were unable to obtain financing prior to September 15, the parties agreed that Burzynski would "be offered first refusal to direct." Pl's Ex. 1.

 Travers was ultimately unable to obtain financing by the September 15 deadline. In October 1984 O'Leary, a practicing attorney in Walton, New York, became a general partner in Miam Productions and spearheaded the fund-raising efforts. Apparently by mid-November defendants had obtained sufficient backing to proceed with production and by letter dated November 12, 1984 defendants offered plaintiff the position of director. (Pl's Ex.2).

 The terms of the offer were $15,000 payable weekly, purportedly reflecting offers the defendants had received from "other persons." Pl's Ex. 2. Following Travers' signature at the end of the letter was an acceptance clause with a blank signature line.

 In a reply dated November 20, 1984, Burzynski wrote that he was "thrilled to hear . . . that financing of ,Miracle in A Manger' [was] progressing steadily," and he indicated that the "offer of a $15,000 fee [was] acceptable . . . in consideration of the sacrifices [Travers was] personally making to see this film become a reality." Pl's Ex. 3. Burzynski did suggest that the method of payment be in two installments as per the original agreement and that a points participation arrangement be retained. He did not sign the November 12 letter agreement, but drafted a new signature page incorporating his suggested changes. (Pre-Trial Order Ex. B-4).

 Deeming these variations from the terms of the offer to be a counteroffer whose terms were unacceptable, see Pl's Ex. 4, defendants proceeded to secure the services of another director -- in this instance, Mr. Travers, himself.

 Subsequently, on March 5, 1985 Burzynski sued the defendants for breach of contract. In their answer and at trial, defendants' first affirmative defense was that they had complied with the terms of the original agreement because the $15,000 offer to Burzynski was a bona fide offer to direct, and when Burzynski rejected it he terminated his right of first refusal and extinguished the letter agreement.

 DISCUSSION

 A. Contract ...


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