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ROSOFF v. MOUNTAIN LAUREL CENTER FOR THE PERFORMING ARTS

May 13, 2004.

ELLIOT ROSOFF, Plaintiff, -against- MOUNTAIN LAUREL CENTER FOR THE PERFORMING ARTS, et ano., Defendants


The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

Plaintiff, a concert violinist and world music figure, hoped to foster development of a summer performing arts center in the Poconos Mountains of Pennsylvania. As the project began to take shape, he envisioned himself as artistic director with substantial compensation. Various discussions took place with others involved in the project. Plaintiff ultimately brought this action to recover compensation that, he claims, is owed by the center, now known as Mountain Laurel Center for the Performing Arts (the "Center"), and its chairman, Harry Kiesendahl. Defendants move for summary judgment dismissing the amended complaint (the "Complaint").

 Facts

  The Center's origin may be traced to 1997, when plaintiff and others formed a predecessor known as The Keystone Center for the Performing Arts ("Keystone"), apparently in the hope of attracting orchestras and symphonies to the area during summers.*fn1 For reasons that are neither explained nor material, Keystone somehow gave way to the Center, which was incorporated in February 2000.*fn2 The events critical to this case began at about that time.

  On February 3, 2000, the board of directors of the future Center adopted a resolution appointing plaintiff artistic director.*fn3 At that time, plaintiff distributed a document listing what he believed would be the duties of the artistic director.*fn4 Nevertheless, plaintiff agrees that there was no discussion at that meeting of whether plaintiff would receive any compensation or benefits, how long he would serve, or the circumstances in which he might be terminated.*fn5

  In August 2000, plaintiff submitted to the Center a document characterized in the Rule 56.1 statements as a "proposed employment contract," but which in fact is merely a term sheet proposing a salary of $150,000 per annum, a duration of five years, certain benefits, and a number of other terms.*fn6 The document specified that plaintiffs duties were to be "non-exclusive" and that he would "devote such time [to the Center] as [might be] necessary to complete duties." While it referred to an attached description of duties, no attachment has been produced on this motion.*fn7

  On November 16, 2000, the Center's management committee decided that the artistic director would be selected by a yet-to-be hired chief executive officer ("CEO") and that it would not then offer plaintiff a contract, although it would support plaintiff's candidacy if the CEO ultimately decided that an artistic director should be appointed.*fn8 The committee nonetheless awarded plaintiff a $100,000 honorarium to be paid 90 days after the Center received certain approval from the Commonwealth of Pennsylvania and anticipated bank financing based upon it.*fn9 On the following day, Kiesendahl wrote to plaintiff, summarizing these decisions.*fn10 Plaintiff, after speaking with Kiesendahl,*fn11 responded with a memorandum dated December 1, 2000 headed "Suggested revision to your letter." The suggested revisions in the key passage are indicated here with additions underlined and deletions struck out:
"To summarize our conversation at the meeting, all agreed that your vision, pioneering spirit and hard work kept this project alive. We also felt that a decision on a the financial details of your contract as Artistic Director before hiring the CEO would be inappropriate and not be in the best interests of the Center or yourself, nor would it make good business sense. Once a CEO is appointed, the Management Committee will strongly support your proposal for the position of Artistic Director seek input on those financial terms from the CEO and make a final decision. The final decision as to those terms will, however, remain with the Board."*fn12
  On December 5, 2000, Kiesendahl sent plaintiff "a revised letter, per [plaintiff's] input" and asked that he sign and return a copy. Plaintiff did so*fn13 and resumed work with the Center. The signed letter incorporated all of plaintiffs proposed changes.

  In mid-2001, plaintiff bought a house in the Poconos near the proposed site of the Center. At his request, the Center's project manager sent a letter to plaintiff's mortgage broker that stated that plaintiff "will be brought onto the project in a salary capacity at the beginning of December 2001 and will continue in that capacity well past our grand opening Memorial Day Weekend 2003."*fn14

  In the winter of 2001, plaintiff submitted for the Center's consideration a second term sheet, this one calling for a salary of $ 135,000, an unspecified "incentive program," a duration of six years and benefits among other things.*fn15 This proposal was not accepted.*fn16

  The Center finally obtained financing in early 2002 and hired a CEO who decided that it neither needed nor could afford a salaried artistic director.*fn17 It never hired plaintiff, who thereupon brought this action.*fn18

  The Complaint contains four claims for relief:
• Breach by the Center of an alleged oral agreement to offer him a contract to serve as its artistic director once it received funding.*fn19
• Recovery against the Center in quantum meruit for services rendered by plaintiff.*fn20 • Recovery against the Center on a theory of promissory estoppel based on an alleged promise of a salaried position as artistic director.*fn21
• Negligent misrepresentation against both the Center and Kiesendahl based on an alleged statement that plaintiff "would receive a salaried position and employment contract as Artistic Director when the center received funding. "*fn22
Discussion

 A. Breach of Contract

  The contract claim in the Complaint is that the Center breached an alleged oral agreement to offer plaintiff an employment contract once it received funding.*fn23 Plaintiff, however, appears to have abandoned that theory. His memorandum now asserts that his August 2000 proposal for a five year, non-exclusive employment contract at $150,000 per year plus other benefits should be regarded as an offer and that the Center accepted that proposal by its letters of November 17 and December 5, 2000, or, at least, that a jury could so infer.*fn24 Regardless of whether New York or Pennsylvania law controls, however,*fn25 this contention is without merit.

  The Court assumes that plaintiff's August 2000 communication was an offer to enter into a five year employment contract on the terms there stated. Taking plaintiff's revision of the November 17, 2000 letter that Kiesendahl signed on December 5, 2000 as an acceptance, the parties agreed on no more than the propositions that (1) plaintiff would be the artistic director for five years, (2) resolution of the financial terms would await appointment of a CEO, (3) the final decision on those terms would be that of the board, (4) ...


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