Opinion
Index No. 657103/2020 Motion Seq. No. 003
11-03-2023
SKYHORSE PUBLISHING, INC., Plaintiff, v. CONNOR BLAKLEY, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
VERNA L. SAUNDERS, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 27,28, 29,30, 31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 68 were read on this motion to/for DISMISS
This matter involves an alleged breach of a publishing agreement for which plaintiff seeks damages. Plaintiff alleges that on March 6, 2019, the parties allegedly executed a publishing agreement ("agreement"), whereby defendant granted plaintiff the sole and exclusive right to produce, publish, license, and sell a book authored by defendant, tentatively titled "F*ck College" ("the Work") (NYSCEF Doc. No. 1 ¶ 3, summons and complaint). Pursuant to the agreement, defendant was required to comply with certain preconditions before plaintiff would be obligated to pay him "$10,000.00 as an advance against prospective royalties from sales of the [w]ork." (NYSCEF Doc. No. 1 ¶ 4). Defendant allegedly reneged on his obligation to comply with these preconditions and informed plaintiff that he would be publishing the book independently. (NYSCEF Doc. No. 1 ¶ 5).
On December 17, 2020, plaintiff commenced this breach of contract action by summons and complaint and, despite being served with the pleadings on December 31,2020 (NYSCEF Doc. No. 2), defendant failed to interpose an answer or otherwise appear. Thereafter, plaintiff moved for a default judgment. (NYSCEF Doc. No. 3). Defendant opposed the motion and cross-moved to compel plaintiff to accept his untimely answer. (NYSCEF Doc. No. 12). The unopposed cross-motion was granted. (See NYSCEF Doc. No. 18, decision and order).
On the instant motion (Mot. Seq. 003), defendant moves the court seeking to dismiss the complaint and for summary judgment. Plaintiff cross-moves for an order dismissing defendant's counterclaims and seeks judgment in its favor in the amount of $33,680.00, together with prejudgement interest. While the motion and cross-motion were pending, defendant's counsel moved to withdraw. Said application was granted, without opposition, and a 45-day stay was ordered to permit defendant to retain substitute counsel. (See NYSCEF Doc. No. 65, decision and order). To date, no counsel appears on behalf of defendant who is deemed to proceed pro se, and there have been no responsive papers filed to the pending cross-motion. Given same, this motion is now ripe for disposition.
Defendant moved for dismissal and summary judgment arguing that the subject publishing agreement fails due to lack of consideration and is illusory, that plaintiff failed to assert actual recoverable damages, and that in the event the agreement is found to be enforceable, plaintiff suffered no loss.
Plaintiff opposed the motion arguing that the publishing agreement is binding on defendant as the implied duty to write and publish the book at issue here constitutes consideration such that an enforceable agreement was created; that defendant's repudiation of the contract caused plaintiff to suffer compensable loss; and that defendant's counterclaims fail to state a cause of action and should be dismissed. Plaintiff seeks judgment in the amount of $33,680.00, representing the guaranteed purchase of 4,000 copies of the Work pursuant to the publishing agreement.
In a motion for summary judgment, the movant bears the initial burden of presenting affirmative evidence of its prima facie entitlement to summary judgment, producing sufficient evidence to demonstrate the absence of any material issue of fact. (See Sandoval v Leake &Watts Servs., Inc., 192 A.D.3d 91, 101 [1st Dept 2020]; Reif v Nagy, 175 A.D.3d 107, 124-125 [1st Dept 2019]; Cole v Homes for the Homeless Inst., Inc., 93 A.D.3d 593, 594 [1st Dept 2012].) "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003].) "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." (Anderson v Liberty Lobby, Inc., 477 U.S. 242, 247-48 [1986].)
In order to form a valid agreement, there must be an offer, acceptance, consideration and a mutuality of intent to be bound. (See Icahn v Lions Gate Entertainment Corp., 31 Misc.3d 1205[A], [Sup Ct, NY County 2011]); Ovsyannikov v Monkey Broker, LLC, 2011 NY Slip Op 33909(U).)
"[A]n illusory contract-that is, '[a]n agreement in which one party gives as consideration a promise that is so insubstantial as to impose no obligation'-is 'unenforceable'" (Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 N.Y.3d 675, 684 [2018], quoting Black's Law Dictionary 370 [9th ed 2009]). "Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]" (Nassau County v New York State Urban Dev. Corp., 157 A.D.3d 805, 807 [2nd Dept 2018] [internal quotation marks omitted], citing Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 N.Y.3d 675, 684 [2018]).
"Legally sufficient consideration does not necessarily entail a benefit flowing to the promisor" (Weston v Smith, 38 A.D.3d 1224, 1224-1225 [4th Dept 2007]); instead, "[a] 'promisee who has incurred a specific, bargained for legal detriment may enforce a promise against the promisor, notwithstanding the fact that the latter may have realized no concrete benefit as a result of the bargain'" (id at 1225, quoting Holt v Feigenbaum, 52 N.Y.2d 291, 299; see Weiner v McGraw-Hill, Inc., 57 N.Y.2d 458, 464 [1982]). Indeed, "[t]he detriment suffered or the thing promised need not benefit the promisee or a third party, or be of substantial value to anyone" (Nassau County v New York State Urban Dev. Corp., 157 A.D.3d at 807-808; Toobian v Golzad, 193 A.D.3d 778, 783-784 [2nd Dept 2021]).
Here, defendant's promise to create the Work and publish same in exchange for plaintiffs promise to take on the promotion and marketing of the Work ostensibly to realize greater profit and benefit than defendant could conceivably obtain on his own behalf, through his own efforts is sufficient to establish that consideration exists here. Indeed, "[t]he detriment suffered or the thing promised need not benefit the promisee or a third party, or be of substantial value to anyone." (See Nassau County v New York State Urban Dev. Corp., 157 A.D.3d at 807-808; Toobian v Golzad, 193 A.D.3d 778 at 783-784.) But here, where defendant decided to move forward independently shows that at some point, he believed his independent efforts could gain him a greater benefit than compliance with the agreement between the parties. Thus, defendant's claim that that the agreement was illusory lacks merit. And plaintiffs contention that the publishing agreement presupposes that there would be a creation to publish, here, the Work, is correct. It is clear that without the Work there would exist no predicate for performance of the balance of the agreement. Defendant's claim that the promises made herein by plaintiff to write/edit or publicize the book were insubstantial so as to essentially impose no obligation to perform is unavailing. Here, there was a mutuality of obligation and plaintiff did not possess a unilateral right to cancel his performance under the agreement. (Dorman v Cohen, 66 A.D.2d 411,415 [1st Dept 1979]).
Thus, defendant's motion for summary judgment is denied. Plaintiffs cross-motion for summary judgment is granted inasmuch defendant failed to raise an issue of fact as no opposition to the motion was filed. However, the portion of the motion seeking damages due, if any, is referred to a special referee to hear and determine.
The remaining arguments are either without merit or need not be addressed given the findings above. Therefore, in accordance with the foregoing, it is hereby
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that plaintiffs cross-motion for summary judgment is granted, without opposition; and it is further
ORDERED that defendant's counterclaims are dismissed; and it is further
ORDERED that, within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for plaintiff shall serve a copy of this decision and order, with notice of entry, upon defendant; and it is further
ORDERED that counsel for plaintiff shall, within twenty (20) days after this decision and order is uploaded to NYSCEF, serve a copy of this order with notice of entry, together with a completed Information Sheet, upon the Special Referee Clerk in the General Clerk's Office (Room 119), who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date; and it is further
ORDERED that service upon the Clerk of the Court and the Special Referee Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of this court.