claims for punitive damages in Claims 1, 4, 7, 9 are dismissed.
Under his breach of contract claims, Claim 2 and 7, and claims
of breach of fiduciary duties, Claims 4, 5, 6, 9, and 10,
plaintiff seeks no relief other than lost profits, "actual"
damages — equivalent to the market value of the programming
contract — and punitive damages. As discussed above, plaintiff
has failed to introduce sufficient evidence in support of these
claims for damages and, therefore, the underlying claims are
dismissed for failure to show injury. See, e.g., Coastal
Aviation, Inc. v. Commander Aircraft Co., 937 F. Supp. 1051, 1060
(S.D.N.Y. 1996) (listing proof of damage to the plaintiff as an
essential element of a breach of contract claim); S & K Sales
Co., 816 F.2d at 847-48 (same in a breach of fiduciary duty
action). Likewise, under his promissory estoppel claims, Claims 3
and 8, plaintiff requests combinations of lost profits, "actual"
damages, punitive damages and damage to his business reputation.
Again, these damages claims are unprovable or barred as a matter
of law and, accordingly, the promissory estoppel claims are
dismissed for failure to show injury. See, e.g., Arcadian
Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.
1989) (listing injury to plaintiff as a necessary element of a
claim for promissory estoppel).
Plaintiff's one remaining claim is for fraud, Claim 1. To
establish a cause of action for fraud, plaintiff must prove that
the Hilliards made a materially false representation with intent
to deceive, that plaintiff reasonably relied on that assertion
and incurred some "out-of-pocket" injury from his reliance. See
CPC Int'l, Inc. v. McKesson Corp., 70 N.Y.2d 268, 285,
519 N.Y.S.2d 804, 812, 514 N.E.2d 116 (1987) (listing the elements of
a fraud action and noting that reliance must be reasonable);
Nottenberg v. Walber, 160 A.D.2d 574, 575, 554 N.Y.S.2d 217,
218 (1st Dep't 1990) (same); cf. Ostano Commerzanstalt v.
Telewide Sys., Inc., 794 F.2d 763, 766 (2d Cir. 1986) (holding
that, in a New York fraud action, a plaintiff may be awarded only
out-of-pocket rather than expectation damages).
Plaintiff has provided four witnesses who testify that the
Hilliards promised to fund the Interim Agreement and "but for"
that promise the BBC would not have signed the Interim or
December Supply Agreements. (See Schonfeld Dep. at 35;
Blumenthal Dep. at 65; Young Dep. at 73-74, 101, 188-89, 211;
Cooper Dep. at 8). Plaintiff provides evidence also that the
Hilliards' promise to fund was false and that the Hilliards
always intended to find third-party funding. (See Les Hilliard
Dep. at 106; Russ Hilliard Dep. at 223-24, 299, 315) The record
would support, therefore, a finding that the Hilliards made a
material false representation with intent to deceive and that
plaintiff relied on that representation.
As for the reasonableness of plaintiff's alleged reliance,
there is some indication that the Hilliards had the means by
which to fulfill the promise to fund — for example, each brother
owns a valuable cable company, Russ Hilliard claimed to have
purchased a $7 million plane and to own a vacation home in
Jamaica. (See Schonfeld Dep. at 69, 575; Dickinson Dep. at 244;
Young Dep. at 65-66; Cooper Dep. at 10) Whether or not this
evidence of wealth justified reliance is an issue of fact for a
jury to decide. See, e.g., Polycast Tech. Corp. v. Uniroyal,
Inc., 792 F. Supp. 244, 253 (S.D.N.Y. 1992) (holding that whether
or not a plaintiff's reliance is reasonable, is a question of
fact); Stratford Group, Ltd. v. Interstate Bakeries Corp.,
590 F. Supp. 859, 865 (S.D.N.Y. 1984) (same).
The last element of a fraud action, a showing of
"out-of-pocket" injury, deserves separate treatment. With
plaintiff's claim for the market value of the programming
contract dismissed, plaintiff's only surviving
damage claim under his fraud action is for travel expenses of
approximately $15,000. (See Schonfeld Dep. at 289-94; Pl. Mem.
in Opp'n at 102 n. 82) This is the full extent of plaintiff's
possible recovery because demands for punitive damages have been
stricken also. Nevertheless, it is irrelevant that the alleged
injury is slight, as any out-of-pocket injury is sufficient to
prevent the fraud action from being summarily dismissed.
For the reasons set forth above, defendant' motion is granted
in part and Claims 2 through 10 in plaintiff's amended complaint
are dismissed. Defendant' motion for summary judgment on
plaintiff's claim of fraud, Claim 1, is denied.