PRINT & MORE ASSOCIATES, INC., Index No. 651318/11, Plaintiff,
Andrew STENZLER, Rammy Harwood, Kidville, Inc., Kidville, NY, LLC, Kidville UWS, LLC, Kidville Tribeca, LLC, Kidville Payroll, LLC, Kidville Park Slope, LLC, Kidville Media, LLC, Kidville JWT, LLC, Kidville Holdings, LLC, Kidville Franchise Company, LLC, Kidville Entertainment, LLC, and Kidville East Chelsea, LLC, Defendants. No. 651318/11.
This decision has been referenced in a table in the New York Supplement.
Edward W. Wayland, Esq., Perry, Krumsiek & Jack, LLP, Boston, MA, for plaintiff.
Barry M. Bordetsky, Esq., Law Offices of Barry M. Bordetsky, Morristown, NJ, for defendants.
BARBARA JAFFE, J.
By notice of motion dated August 1, 2011, defendants move pursuant to CPLR 3211(a)(7) for an order dismissing the complaint. Plaintiff opposes, and by amended notice of cross-motion dated October 18, 2011, moves pursuant to CPLR 3212 for an order granting it summary judgment on its breach of contract claim. Defendants oppose.
On or about November 1, 2010, plaintiff commenced the instant action with the filing of a summons and verified complaint reflecting that " [d]efendants operate a chain of high-end childcare facilities," that defendant Andrew Stenzler is Chief Executive Officer of defendant Kidville, Inc., and a principal, director and owner of the remaining Kidville defendants, and that defendant Rammy Harwood is President of Kidville, Inc., and also a principal, director, and owner of the other Kidville defendants. (EFD 23). Kidville, Inc. wholly owns the other Kidville defendants, and according to plaintiff, they are operated from the same location, their " finances and business transactions are intermingled [such that] they are effectively operated as a single entity," and they are alter egos of each other and of Stenzler and Harwood. ( Id. ).
Plaintiff alleges that on September 24, 2008, Danielle Kirsner, " Senior Director of Programming and Operations" for " Kidville," ordered Spring/Summer 2009 program guides for Kidville locations in New York and Maryland and establishing a timetable for their production and delivery. ( Id. ). It is also alleged that this " was not the first such transaction between the parties [, that] there was already a pattern and practice established between them as to the price for such materials," and that in November of 2008, defendants paid plaintiff the money they owed it for a " prior printing of guides" before the Spring/Summer 2009 guides were shipped to them. ( Id. ).
Sometime thereafter, defendants ordered Fall 2009 program guides, and in late June 2009, when Jean-Claude Joseph, plaintiff's president, and Harwood discussed payment for them, Harwood claimed that defendants were experiencing financial problems but he " personally assured" Joseph that " the outstanding invoice would be paid." ( Id. ). Between July and December 2009, defendants made a series of partial payments, and " Harwood, on behalf of all [d]efendants, repeatedly promised that the outstanding invoice would eventually be paid in full" and never challenged the legitimacy of plaintiff's invoice. ( Id. ). However, in December 2009, Stenzler informed Joseph that " no further payments would be made on any outstanding invoice," and there thus remains an outstanding invoice for $49,765.60. ( Id. ).
Plaintiff asserts claims against defendants for breach of contract, violation of the New York Consumer Protection Act, fraud, and conversion. In alleging fraud in its third cause of action, plaintiff asserts that defendants " used promises of payment to induce the shipment of merchandise and the delay of collection actions." ( Id. ).
By affidavit dated September 23, 2011 and submitted in opposition to the instant motion and in support of the cross-motion, Joseph references Kirsner's September 24, 2008 email regarding the Spring/Summer and Fall 2009 program guides and asserts that defendants paid for the guides in installments after they were shipped to them, as per prior custom and practice, and that " Stenzler and Harwood determined not to pay for the Fall 2009 guides prior to the final shipment, but continued to assure [him] of payment in order to secure that shipment and to cause delay in collection efforts." (EFD 41).
In her email, Kirsner states that " [i]t's that time again" and that " [t]he last guide was a huge success." (EFD 42). She also expressed an expectation that they be produced according to an attached timeline. ( Id. ). Emails from Kirsner from March, April, May, and July 2009 reflect that she instructed Joseph as to the content, production, and shipping of the Fall 2009 guides. ( Id. ). Also attached is email correspondence between Joseph and Harwood wherein Joseph repeatedly requested payment for the guides, Harwood sent small payments and promised future ones, and eventually advised Joseph that he could no longer do business with him or pay the outstanding balance. (EFD 43). As are invoices from plaintiff addressed to " Kidville." (EFD 44).
On April 25, 2012, oral argument was held before the justice previously presiding over this part, during which he declined to convert defendants' motion to dismiss to a motion for summary judgment. He stated that the parties would receive notice if he subsequently decided to do so. (EFD 52).
A. Breach of contract