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, ...