United States District Court, S.D. New York
May 13, 2004.
NYC MANAGEMENT GROUP INC., LA MODEL MANAGEMENT, LA LOOK MODEL INC., and HEINZ HOLBA, Plaintiffs, -against- MICHELE BROWN-MILLER, INTERNATIONAL MODEL MANAGEMENT, Defendants
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
Plaintiffs NYC Management Group, Inc., L.A. Model Management, and
Heinz Holba, a principal of both corporate plaintiffs, (collectively "NY
Models"), brought suit against defendants Michele Brown-Miller ("Miller")
and International Model Management ("IMM"), alleging tortious
interference with contract, tortious interference with prospective
economic relations, breach of contract, breach of implied covenant of
good faith and fair dealing, defamation, unfair competition, and
misrepresentation. Defendants move for summary judgment as to all claims
advanced by plaintiffs. For the reasons set forth below, defendants'
motion is granted in its entirety and plaintiffs' complaint is dismissed.
The events giving rise to this action began in March 2002, when
defendant Miller, in her capacity as principal of defendant IMM, a
Canadian modeling agency, brought with her to New York City several of
the models represented by Miller and IMM. The apparent purpose of the trip was to secure agency representation
for those models within the New York market. The parties appear to agree
that it is not an unusual arrangement for one agency with a primary
relationship with a model-a "mother agency"-to contract with a second
agency for the management of that model in a particular market or region.
Such a contract is called a "mother agency agreement."
On that trip, Miller introduced defendant N.Y. Models to Jessica Stam
("Stam"), then a relatively unknown young model whom Miller sought to
place. N.Y. Models was interested in Stam, and entered her in a modeling
contest that it was sponsoring with a first-place prize of a two-year
contract with a guarantee of $100,000 against the winner's modeling
earnings during that period. (Aff. of Erin Lundgren in Opp. to Defs.'
Mot. for Summ. J. ("Lundgren Aff"), Ex. A.) On or about July 15, 2002,
Miller and N.Y. Models entered into an agreement ("the Mother Agency
Agreement") according to which Stam would be represented by N.Y. Models "in
New York, N.Y. ONLY." (Decl. of Michele Brown-Miller ("Miller Decl."), Ex.
A.) Under the terms of the Mother Agency Agreement, EMM would receive ten
percent of Stam's earnings (to be computed prior to N.Y. Model's deduction
of its own commissions)*fn1 from modeling jobs booked by N.Y. Models. The
Mother Agency Agreement by its terms would remain in force "until the
date [Stam] is no longer represented by [NY Models]." (Id.) On or about September 5, 2002, Stam won the modeling contest. (Lundgren
Aff. ¶ 25.) In September 2002, an agreement entitled "L.A. Models/New
York Model Management Agreement" ("Stam Agreement") was executed by Stam,
N.Y. Models employee Marion Smith, and Debbie Stam, Stain's mother.
(Lundgren Aff. Ex. A.) Debbie Stain's signature was required because Stam
was 16 years old when she signed the Stam Agreement, which read:
In the event the CONTESTANT is under 18 years of
age, your parent or guardian is required to
execute this agreement on your behalf.
Id. In a separate undated signed document, Debbie Stam
consented to Stam's participation in the Stam Agreement. Id.
The Stam Agreement sets forth the terms governing contest prizewinners,
including a provision stating:
During the term of the modeling contract you agree
to be represented by L.A. MODELS/NEW YORK MODEL
MANAGEMENT and its affiliates throughout the
world. You agree that L.A. MODELS/NEW YORK MODEL
MANAGEMENT shall be your exclusive representative
as a print, television, runway model or otherwise
on an exclusive basis except in a market where a
mother agency agreement with L.A. MODELS/NEW YORK
MODEL MANAGEMENT exists.
After only a few months, however, relations soured between Stam and N.Y.
Models, due in large part to undisputed conflicts among Stam, her
parents, and her agencies. The first point of contention centered on
whether Stam should participate in the Paris "ready-to-wear" fashion
shows in Fall 2002. Stam and Miller were excited by the prospect of doing
the shows as both thought it would be a boost to Stam's career and
provide her with valuable exposure. (Miller Decl. ¶ 10; Affidavit of
Jessica Stam ("Stam Aff") ¶ 5.) George Speros, Stam's booking agent
at N.Y. Models ("Speros"), opposed the idea and did not think that the Paris shows would be a "good move"
for Stam. (Aff. of George Speros in Opp. to Defs.' Mot. for Summ. J.
("Speros Aff") ¶ 26). Speros ultimately relented but maintained that
the shows were a disappointment and that Stam only received a couple of
small jobs as a result. (Id. at ¶ 28). On the other hand,
Miller felt that Stam performed very well in Paris, and Stam herself felt
that the shows "turned out to be a great success for me." (Miller Decl.
¶ 11; Stam Aff. ¶ 6.)
After returning to New York, Stam's relationship with N.Y. Models
continued to deteriorate. Stern was having personal difficulties at home
and did not want N.Y. Models to have any communication with her parents
without her permission. Speros, however, received a call from Stam's
father and they discussed Stam's career, including whether she should do
upcoming shows in New York in 2003. This apparently led to a family
disagreement with Stam's father yelling at her. (Speros. Aff. ¶¶
66-76.) Stam was infuriated by Speros' conversation with her father and
began questioning whether she wanted to stay with N.Y. Models. (Stam. Aff.
¶ 9; Speros Aff. ¶ 70.) Stam had developed a friendship with
another model from her hometown in Canada who worked for another New York
agency, IMG, and Stam began considering a move to IMG. (Stam Aff. ¶
10; Miller Decl. ¶ 16.)
Toward the end of 2002, Stam began talking to Miller about leaving N.Y.
Models. Miller advised Stam that she should stay with N.Y. Models, that it
had a good reputation and that she could have a successful career there.
(Miller Decl. ¶ 20; Stam Aff. ¶ 11.) Miller further suggested
that Stam meet with Speros to ease the friction between them.
(Id.) Stam declined this advice and in or around January 2003
sent Miller a handwritten note expressing her unhappiness with N.Y. Models
and her desire to end her relationship with the agency. (Miller Decl. ¶ 22 & Ex. B.) The note, a
copy of which has been put in the record, reads as follows:
On a day to day basis I'm not happy here.
New York Models does not agree with my other
agencies on countless decisions and is causing too
much commotion at this point in my career.
They are pushing me too fast and do not seem to
have my best interests in mind. For example, I
feel they do not care that returning to school at
age 16 is a top priority for me.
This unnecessary pressure is putting stress on
me and is making everything much too complicated.
It is because of this that I wish to no longer
be involved with the New York Model Management.
(Miller Decl. Ex. B.) On January 29, 2003, Miller, concerned that
Stam might also leave Miller's agency if she stood in the way of Stam's
decision, acceded to Stam's request and wrote a letter to N.Y. Models
demanding a written release of Stam. (Miller Decl. Ex. C.) Thereafter
Stam executed a written statement dated February 21, 2003, disaffirming
"any agreement that I may have entered into, or which may have been
entered into on my behalf, with New York Model Management." (Decl. of
Edward H. Rosenthal ("Rosenthal Decl."), Ex. I.) This lawsuit followed.
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." R.B. Ventures,
Ltd. v. Sham, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.
R. Civ. P. 56(c)). In reviewing the record, the district court must
assess the evidence in "a light most favorable to the nonmoving party"
and resolve all ambiguities and "draw all reasonable inferences" in its
favor. Am. Cas. Co. v. Nordic Leasing, Inc.,
42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
An alleged factual dispute between the parties will not by itself
defeat a motion for summary judgment, since "the requirement is that
there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48 (emphasis in original). In order to
defeat such a motion, the non-moving party must affirmatively set forth
facts showing that there is a genuine issue for trial. Id. at
256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue of fact is genuine `if
the evidence is such that a jury could return a verdict for the nonmoving
party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.
2002) (quoting Anderson, 477 U.S. at 248). A fact is material
when "it `might affect the outcome of the suit under the governing law."
Id. (quoting Anderson, 477 U.S. at 248).
Affidavits submitted in support of or in opposition to a motion for
summary judgment must "be made on personal knowledge," and must "set
forth such facts as would be admissible in evidence" at trial.
Fed.R.Civ.P. 56(e). Hearsay contained in such affidavits, in the absence of a
sworn statement by the alleged declarant, cannot provide support for or
opposition to a summary judgment motion. Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999);
H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991).
B. Tortious Interference Claims
Plaintiffs claim that defendants tortiously interfered both with Stam's
existing contract with N.Y. Models, and with plaintiffs' prospective
expectation of income from their future bookings of Stam with clients
requesting her services.
1. Tortious Interference with Contract
To prove tortious interference with contract under New York law,
plaintiffs must show "(a) that a valid contract exists; (b) that a `third
party' had knowledge of the contract; (c) that the third party
intentionally and improperly procured the breach of the contract; and (d)
that the breach resulted in damage to the plaintiff." Albert v.
Loksen, 239 F.3d 256, 274 (2d Cir. 2001). As to the first two
elements, plaintiffs have put forth sufficient evidence to show that the
contract at issue, the Stam Agreement, is valid, and that defendants had
knowledge of the contract. With respect to the third element, the Court
must first determine whether the disaffirmance of a contract by a minor
constitutes a breach sufficient to support a tortious interference claim.
If the answer to this question is affirmative, the Court must then
determine whether there are genuine issues of material fact relating to
question of whether Miller intentionally and improperly procured the
Stam undisputedly disaffirmed the contract, which, under California
law, minors are entitled to do.*fn2 Such a disaffirmance functions to
rescind the contract. Warner Bros. Pictures v. Brodel, 31 Cal.2d 766, 192 P.2d 949,
3 A.L.R.2d 691 (1948), cert. denied, 335 U.S. 844, 69 S.Ct. 67,
93 L.Ed. 394 (1948). The ability of a child to disaffirm a contract is
grounded in the principle, well settled in our jurisprudence, that adults
contract with children at their peril. See, e.g., Ballard v.
Anderson, 4 Cal.3d 873, 878-79 (Cal. 1971) ("The right of the
infant to avoid his contracts is one conferred by law for his protection
against his own improvidence and the designs of others. The policy of the
law is to discourage adults from contracting with an infant and they
cannot complain if as a consequence of violating the rule they are
injured by the exercise of the right of disaffirmance vested in the
infant.") (citation and internal punctuation omitted).
Certain exceptions to this right and power of disaffirmance nonetheless
exist. For example, a minor performer may not disaffirm a contract he or
she has entered into "if the contract has been approved by the superior
court in any county in which the minor resides or is employed or in which
any party to the contract has its principal office in this state for the
transaction of business." CAL. FAM. CODE § 6751 (West 1994). While
one court has found models to be covered by this statute, see Faloona
by Fredrickson v. Hustler Magazine, Inc., 607 F. Supp. 1341,
1355 n.45 (D.C. Tex. 1985), no such approval has apparently been
obtained for the instant contract, so the applicability of this statute
to the Stam Agreement need not be determined.
Further, in certain circumstances a minor may not disaffirm a contract
that a parent or guardian has entered into on the minor's behalf.
Doyle v. Giuliucci, 62 Cal.2d 606, 609, 43 Cal.Rptr. 697,
401 P.2d 1 (1965); Hohe v. San Diego Unified Sch. Dist.,
224 Cal.App.3d 1559, 1565, 274 Cal.Rptr. 647, 649 (Cal. Ct. App. 1990). The
Stam Agreement clearly indicates that if the model is under 18, the
parent or guardian "is required to execute this Agreement on [her] behalf."
(Rosenthal Dec. Ex. H (emphasis added).) However, it is not clear that
this language precludes Stam from disaffirming the contract. In Doyle
v. Giuliucci, the issue was whether the right of a minor to
disaffirm extended to a contract her parent had entered into to provide
medical services to the minor. The contract included an arbitration
clause, and the minor sought to disaffirm the contract because it bound
her to arbitrate any malpractice claims. The court held that the law
providing for disaffirmance "applies to contracts of minors and protects
them from their own improvidence in assuming contractual obligations. It
does not apply to contracts between adults and is therefore not
controlling on the question of a parent's power to bind his child to
arbitrate by entering into a contract of which the child is a third party
beneficiary." Doyle, 62 Cal.2d at 609. In Hohe v.
San Diego Unified School District, the minor plaintiff sought to
disaffirm a liability release form she and her father had signed relating
to a hypnotism performance at her school during which she was injured.
The court found that the release could not be disaffirmed, again because
the law "was not intended to affect contracts entered into by adults on
behalf of their children." Hohe, 224 Cal.App.3d at 1564.
The agreements in Doyle and Hohe were unambiguously
agreements entered into by the minors' parents, and the object of those
agreements was to alter or limit the legal liabilities among the parties
and the minor. The minor is a beneficiary of such an agreement because it
is only her parent's execution of that agreement that enables the minor
to obtain some benefit-e.g., medical services or participation
in a performance which would be unavailable to her if the provider of
the benefit were not able to limit its liability. No performance is
required of the third-party beneficiary under such agreements. Allowing a minor to disaffirm such agreements would
make providers of benefits less willing to provide them to minors, since
they would not be able contractually to control their liability. Such an
outcome would be undesirable from a policy standpoint. See, e.g.,
Doyle, 62 Cal.2d at 609-10 ("If minors were always free to disaffirm
arbitration awards [pursuant to agreements entered into on their behalf]
. . . they would be effectively denied the benefits of arbitration, for
few adults would agree to submit minors' claims to arbitration.")
The Stam Agreement presents a different situation. The agreement
contains no release from liability, but rather resembles a standard
service contract spelling out the performance required of each party to
the contract-namely, of Stam and the modeling agencies. It is clear that
while the contract requires Stam to perform as a model, no performance is
required of Debbie Stam, who by signing merely signals her assent to her
daughter's entry into the agreement without assuming any obligation of
her own. Such indications of parental approval are not enough to override
the right of the child to disaffirm her own contracts. Indeed, under
California law, if both the minor and the parent sign a contract under
which both are contractually bound to perform, the minor may disaffirm
without affecting the parent's contractual obligation. Raden v.
Laurie, 120 Cal.App.2d 778, 783, 262 P.2d 61, 65 (Cal. Ct. App.
1953). Other jurisdictions have spoken even more unequivocally to the
question: see Bombardier v. Goodrich, 110 A. 11, 11 (Vt. 1920)
("The assent of the father adds nothing to the binding force of an
infant's promise."); Hines v. Cheshire, 36 Wn.2d 467, 474,
219 P.2d 100, 104-05 (Wash. 1950) ("[T]he law seems to be settled that an
infant is not precluded from disaffirming by reason of the fact that an
adult joined with him in signing the contract. The fact that the adult assuming such joint liability happened to be the minor's
father would be immaterial.") (citing cases); Schmidgall v.
Engelke, 81 Ill. App.2d 103, 224 N.E.2d 590 (Ill.App. 1967) ("A
minor's right to disaffirm his contract is not affected by parental
approval, and a parent by his relationship to minor is without authority
to enter into contracts binding on a minor."); Hogue v.
Wilkinson, 291 S.W.2d 750, 755 (Tex.Civ.App. 1956) ("Even if the
mother and grandfather had signed the written contracts as agents of the
minor plaintiff, such contracts would not have bound the minor if he
wished to disaffirm."). There is nothing about the Stam Agreement, in
short, that appears to take it outside the statutory rubric allowing a
minor to disaffirm her contract.
The Stam Agreement, in light of the foregoing, was clearly voidable as
a contract entered into by a minor. Consequently, the disaffirmance of
such a contract does not literally constitute a breach and, therefore, an
essential element of a claim for tortious interference with contract
would appear to be missing. New York courts, however, appear to permit
tortious interference claims to proceed where there is a disaffirmance of
a voidable contract that is procured by wrongful means, unlawful
restraint of trade, or lack of competitive motive. Guard-Life
Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183,
193-94, 406 N.E.2d 445, 428 N.Y.S.2d 628 (1980); Cent. Sports Army
Club v. Arena Assocs. Inc., 952 F. Supp. 181, 190 (S.D.N.Y. 1997).
Plaintiff has not alleged unlawful restraint of trade or lack of
competitive motive; in fact, a competitive motive is explicitly pleaded
in the complaint. (Compl. ¶¶ 113, 125, 127, 130, 132, 134, 136.)
Therefore, in order to succeed on their tortious interference with
contract claim, plaintiffs must show that Miller procured Stam's
disaffirmance of her contract by wrongful means. "Wrongful means" are
defined to include "physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic
pressure; they do not, however, include persuasion alone although it is
knowingly directed at interference with the contract." NT
Bancorp. Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614,
624, 664 N.E.2d 492, 497, 641 N.Y.S.2d 581, 586 (1996) (quoting
Guard-Life, 50 N.Y.2d at 191).*fn3
Plaintiffs' claim here is that Miller procured Stam's disaffirmance
through fraud and misrepresentation. Specifically, plaintiffs claim that
Miller provided "misinformation" to Stam about N.Y. Models. (Speros Aff.
¶ 103; Pls.' Mem. at 15.) The evidence offered to support this claim
consists of statements allegedly made by Miller to Stam's parents that
were allegedly reported by Stam's parents to N.Y. Models. The alleged
misinformation included statements that N.Y. Models was "not a top agency";
that models at a competing agency, IMG, made more money; and that N.Y.
Models "is only good for the beginning of a career." (Speros Aff. ¶
104; Smith Aff. ¶¶ 51-52). Plaintiffs also claim that similar
disparaging remarks were made by Miller to Stam which were repeated to
her boyfriend and her boyfriend's mother, who in turn reported them to
Speros at N.Y. Models. (Speros Aff. ¶¶ 91-92, 98.)
The obvious problem with all of plaintiffs' assertions about Miller's
alleged dishonesty and disparagement is that they are not supported by
any admissible evidence. The opposing affidavits offered by plaintiffs
contain numerous unsupported assertions that Miller "clearly and
blatantly interfered with our relationship with Stam causing her to leave
New York Models" (Smith Aff. ¶ 50), that Miller "lied to us on a
number of occasions" (Speros Aff. ¶ 39), and that Stam was "being given
misinformation" by Miller (Id. at ¶ 123). Yet the only
evidentiary support for these assertions comes from inadmissible hearsay,
in that none of the declarants-Stam's parents, Stam's boyfriend, nor
Stam's boyfriend's mother-swore out statements or were deposed. Moreover,
Stam states in her own affidavit that Miller never made any negative or
disparaging remarks about N.Y. Models and, in fact, told her that N.Y. Models
was a good and competent modeling agency. Plaintiffs chose not to depose
Stam and have no evidentiary basis to contest her statement.*fn4
Plaintiffs contend that their allegations of misrepresentations are
supported by the undisputed fact that Miller told them in January 2003
that Stam did not intend to participate in the New York Fashion Week
Runway Shows in February 2003, but Stam subsequently participated in the
shows. (Speros Aff ¶¶ 64, 109.) This fact, in itself, is not evidence
of misrepresentation. As plaintiffs concede, Miller told them Stam did
not plan to participate only after plaintiffs "repeatedly" asked Miller
and Stam to decide whether she would do the shows or return to school,
and "required a straight answer." (Id. at ¶¶ 49-57, 63-64.)
No evidence has been adduced to suggest that Miller lied, and even
plaintiffs' account of events suggests that Stam remained undecided about
her immediate future at the time plaintiffs wanted a decision. Indeed,
one of the subjects of the controversial telephone conversation between Speros and Stam's
father was whether or not Stam would appear in the New York shows.
(Speros Aff. ¶ 66.) Even if it is assumed, arguendo, that
Miller made a misrepresentation, it was not made to Stam to induce her to
breach or disaffirm her contract. To the contrary, it was (allegedly)
made to N.Y. Models. Any dispute regarding this event cannot support
plaintiffs' tortious interference claim.
More to the point, the uncontroverted evidence shows that Stam was
unhappy, that tensions between her agencies and with her family were
causing her stress, and that she articulated her dissatisfaction and
distress as the reason for ending her relationship with plaintiffs. (Stam
Aff. ¶¶ 7-9, 12; Miller Decl. Ex. B.) It is also uncontroverted that
Miller did not attempt to persuade Stam to leave N.Y. Models. In fact, the
only admissible evidence establishes that she, in fact, attempted to
persuade Stam to stay with N.Y. Models and work out the problems with
Speros. (Stam Aff. ¶ 11; Miller Decl. ¶ 20.) This evidence
radically undermines the contention that Stam would not have disaffirmed
the contract but for the interference of Miller.*fn5 This "but for"
showing is required in order to prevail on a claim of tortious
interference with contract. The inducement element requires the plaintiff
to establish that but for the allegedly tortious conduct of the
defendant, the third party would not have breached her contract.
Michele Pommier Models, Inc. v. Men Women N.Y. Model Mgmt., Inc.,
14 F. Supp.2d 331, 335 (S.D.N.Y. 1998) (citing Sharma v. Skaarup
Ship Mgmt. Corp., 916 F.2d 820, 828 (2d Cir. 1990). Based on the
admissible evidence in the record, no reasonable juror could conclude
that defendants improperly or intentionally procured Stam's
disaffirmance of the Stain Agreement, much less that wrongful means were
used, and plaintiffs' tortious interference with contract claim therefore
cannot survive summary judgment.
2. Tortious Interference with Prospective Economic Relations
Plaintiffs claim that when defendants caused Stam to terminate her
business relationship with N.Y. Models and LA Models, those agencies lost
the economic expectancy that they had in future bookings of Stam with
clients who requested her services. They claim that defendant knew about
that expectancy and that she interfered with it willfully.
In order to prove tortious interference with business relations,
plaintiffs must show (1) business relations with a third party; (2) the
defendant's interference with those business relations; (3) that the
defendant acted with the sole purpose of harming the plaintiff or used
dishonest, unfair, or improper means; and (4) injury to the relationship.
Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994) (citing New
York and Second Circuit cases); Oxyn Telecomms, Inc. v. Onse
Telecom, No. 01 Civ. 1012, 2003 U.S. Dist. LEXIS 17371 (S.D.N.Y.
Sept. 30, 2003).
The court accepts for the sake of argument the reasonable notion that
plaintiffs' clients who had developed an interest in Stam would likely
have booked jobs for her through N.Y. Models had Stam not terminated the
contract, and that this pre-existing client interest constituted a
business relation that was harmed by Stam's disaffirmance. Even if this
notion holds up, the claims are untenable for essentially the same
reasons that plaintiffs' allegations of tortious interference with
contracts fail. Plaintiffs have not satisfied the third prong of the test
by showing that Miller either acted with the sole purpose of harming plaintiffs, or that dishonest, unfair, or
improper means were used. The court has been pointed to no piece of
evidence demonstrating malicious intent or willfulness on Miller's part;
plaintiffs case on this point consists of conclusory allegations. As the
Second Circuit has noted, this will not suffice to defeat a motion for
summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985) ("The summary judgment rule would be rendered sterile . . . if the
mere incantation of intent or state of mind would operate as a talisman
to defeat an otherwise valid motion."). Likewise, as discussed
supra, plaintiffs have failed to marshal any competent evidence
indicating dishonest, unfair, or improper means. These claims, then, may
not go forward.
C. Breach of Contract Claims
Plaintiffs claim that Miller and EMM breached the Mother Agency
Agreement, and violated the covenant of good faith and fair dealing
implied in a contractual relationship, when Miller allegedly interfered
with Stam's relationship with plaintiffs, allegedly avoided plaintiffs,
and allegedly made misrepresentations to Stam and/or plaintiffs.*fn6 The
elements of breach of contract are (1) the existence of a contract; (2)
breach; and (3) damages resulting from the breach. The Mother Agency
Agreement embodied an arrangement in which N.Y. Models would be allowed to
represent Stam in New York City, and would be entitled to commissions on
its bookings of Stam there. The contract, by its terms, would remain in
force "until the date [Stam] is no longer represented by [NY Models]."
(Miller Decl. Ex. A.) The Mother Agency Agreement did not create or identify any other obligations to N.Y. Models in
defendants beyond sharing commissions with N.Y. Models; it did not even
restrict defendants from allowing another agency simultaneously to
represent Stam in New York City or elsewhere. The essence of plaintiffs'
claim is that Miller took the actions described above in an effort to end
Stam's relationship with plaintiffs, so that Miller's contractual
obligation to N.Y. Models would end as well. Since the factual allegations
underlying these claims of bad faith essentially duplicate those of the
foregoing claims, which the court found to be inadequately supported in
the record, these claims too must fail.
D. Defamation Claims
Plaintiffs assert that Miller defamed and disparaged N.Y. Models when she
allegedly made the above-quoted statements to Stam's parents that were
subsequently reported to plaintiffs. (Speros Aff. ¶ 104; Smith Aff
¶ 52.) Defendants argue that the alleged statements, to the extent
that they are actually false statements of fact susceptible of a
defamatory meaning (which defendants too dispute) or that they caused any
injury to plaintiffs, cannot form the basis of a defamation claim when
only inadmissible hearsay evidence is proffered to prove they were
uttered. The court agrees and finds that since there is no admissible
evidence that the alleged statements were even made, there is no need to
go further to determine whether any or all of the alleged statements are
not defamatory as a matter of fact or law. These claims must be
E. Unfair Competition Claims
Plaintiffs allege that defendants violated New York's common law of
unfair competition when they caused Stam to sever her relationship with
N.Y. Models so that defendants, rather than plaintiffs, could reap the
rewards of the money and effort expended by plaintiffs in promoting, grooming, photographing,
transporting, and otherwise providing management services for Stam.
Specifically, they allege that Miller told plaintiffs before Stam's
disaffirmance that Stam did not intend to participate in the New York
shows in February 2003, but then booked Stam for some of the shows after
her disaffirmance, thereby cutting plaintiffs out of any commissions from
"Common law unfair competition must be grounded in either deception or
appropriation of the exclusive property of the plaintiff." H.L Hayden
Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005,
1025 (2d Cir. 1989); Michele Pommier Models, Inc., 14 F. Supp.2d
at 337. Because the court has found that plaintiffs have failed to
produce evidence of deception, it must be determined whether defendants
have appropriated plaintiffs' exclusive property. If there is any
property at stake in this case, the court can only conclude that it would
consist in Stam's future performances as a model, or the investments that
plaintiffs made in increasing her appeal and marketability. Plaintiffs
have not cited any law, and the court has not unearthed any, that would
justify treating these intangibles as giving rise to a property interest.
This is particularly so where, as here, plaintiffs' only interest lies in
a voidable contract in which plaintiffs have no legal right to future
performance but only an expectancy. Guard-Life, 50 N.Y.2d at
192-93. Plaintiffs are disappointed, and understandably so, that their
investment did not yield dividends. This disappointment, without
sufficient evidence to create a genuine issue of material fact as to
defendants' wrongful actions or intent, does not present a matter for
trial. F. Misrepresentation Claim
As defendants point out (Defs.' Mem. at 22), plaintiffs'
misrepresentation claim is actually a claim for fraud, since it pleads
all the elements of common law fraud: that defendants willfully made
misrepresentations to plaintiffs, who relied on those misrepresentations
to their detriment. As the court's consideration of plaintiffs' evidence
has made clear, plaintiffs have failed to present any proper evidentiary
support for their allegations that defendants willfully made false
statements to plaintiffs upon which they relied to their detriment.
Therefore, this claim cannot succeed.
In light of the foregoing, the court grants defendants' motion for
summary judgment as to all plaintiffs' claims, and dismisses this action
in its entirety. The Clerk is directed to close the case.