Kagan v. K-Tel Entertainment, Inc.
| Decision Date | 23 April 1991 |
| Docket Number | K-TEL |
| Citation | 568 N.Y.S.2d 756,172 A.D.2d 375 |
| Parties | Russell J. KAGAN and International Program Consultants, Inc., Plaintiffs-Respondents, v.ENTERTAINMENT, INC., Defendant, and Hal Roach Entertainment, Inc., Metro-Goldwyn-Mayer/United Artists Entertainment Company and Earl Glick, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and ROSENBERGER, ELLERIN, KASSAL and RUBIN, JJ.
Order of the Supreme Court, New York County (William Davis, J.), entered December 22, 1989, which denied defendant Metro-Goldwyn-Mayer/United Artists Entertainment Company's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, and the complaint dismissed, without costs. The Clerk is directed to enter judgment in favor of said defendant dismissing the complaint as to it.
Plaintiffs International Program Consultants, Inc. ("IPC") and its principal shareholder, officer and director, Russell J. Kagan, were engaged by defendant K-Tel Entertainment, Inc. ("K-Tel") to place a pilot and locate a distributor for a successful television series entitled "Kids, Incorporated." Plaintiffs placed the series with defendant Metro-Goldwyn-Mayer/United Artists Entertainment Company ("MGM/UA") which entered into a written agreement with K-Tel dated February 8, 1984 pursuant to which MGM/UA agreed to pay certain fixed amounts for each episode.
It does not appear that the agreement between K-Tel and plaintiffs was ever reduced to writing. However, IPC was paid $15,000 for the sale of the pilot by K-Tel, which also paid a $10,000 advance towards sums due on the first eight programs in the series. K-Tel had produced only those eight episodes when it fell into financial difficulty. MGM/UA thereupon notified K-Tel that it intended to remove it as producer of the series pursuant to paragraph 12 of their agreement. At this time, MGM/UA had paid K-Tel all monies due under the written agreement.
In an attempt to cure its default under the contract with MGM/UA, K-Tel assigned its rights and obligations thereunder to Hal Roach Entertainment, Inc. ("Roach"). MGM/UA was not a party to the assignment agreement but, in a separate agreement signed by K-Tel, Roach and MGM/UA, it agreed to the substitution of Roach as producer in K-Tel's stead. On October 25, 1984, K-Tel filed a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code (11 USC). Plaintiffs, in their brief, state that Roach has now also filed a similar petition.
In this action, plaintiffs seek to recover from MGM/UA the amount allegedly agreed to be paid to them by the producer (K-Tel and, later, Roach), that is, 10 percent of the amount paid by MGM/UA for the entire series of some 26 episodes. While plaintiffs purport to state six causes of action, the gravamen of their complaint is that MGM/UA received the benefits associated with being the distributor for the series and should therefore be held liable to plaintiffs for their 10 percent fee on a theory of unjust enrichment.
Plaintiffs' claim is without merit. As reflected in the common law of the various states, to recover under a theory of quasi contract, a plaintiff must demonstrate that services were performed for the defendant resulting in its unjust enrichment (Kapral's Tire Svc. v. Aztek Tread Corp., 124 A.D.2d 1011, 1013, 508 N.Y.S.2d 777). It is not enough that the defendant received a benefit from the activities of the plaintiff (Armstrong v. I.T.T.S. Corp., 10 A.D.2d 711, 198 N.Y.S.2d 641); if services were performed at the behest of someone other than the defendant, the plaintiff must...
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...prove that performance was rendered for the defendant, resulting in its unjust enrichment."62 As the First Department stated in Kagan v. K-Tel Entertainment, "[a]s reflected in the common law of the various states, to recover under a theory of quasi contract, a plaintiff must demonstrate th......
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...Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 402, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957); Kagan v. K-Tel Entertainment, Inc., 172 A.D.2d 375, 377, 568 N.Y.S.2d 756 (App.Div. 1st Dept.1991). "Included among the duties to which this rule has reference is the duty to arbitrate." Lachmar, 7......
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...583 N.Y.S.2d 497, 498 (2d Dep't 1992)) (emphasis added). Here that critical element is lacking. In Kagan v. K-Tel Entertainment, Inc., 172 A.D.2d 375, 568 N.Y.S.2d 756 (1st Dep't 1991), the First Department As reflected in the common law of the various states, to recover under a theory of q......
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