Nelkin v. Wedding Barn At Lakota's Farm, LLC

• Decision Date: 29 June 2020
• Docket Number: 012448/2020
• Citation: 72 Misc.3d 1086,152 N.Y.S.3d 216
• Parties: Emily NELKIN and Brian Farr, Plaintiff, v. WEDDING BARN AT LAKOTA'S FARM, LLC, Defendant.
• Court: New York Civil Court

72 Misc.3d 1086

152 N.Y.S.3d 216

Emily NELKIN and Brian Farr, Plaintiff,

v.WEDDING BARN AT LAKOTA'S FARM, LLC, Defendant.

012448/2020

Civil Court, City of New York, Queens County.

Decided on June 29, 2020

Plaintiff's Counsel: Chesney, Nicholas & Brower LLP, 485 Underhill Blvd., Suite 308, Syosset, NY 11791

Defendant's Counsel: Kelly & Sellar Ryan, PLLC, 18 Gray Avenue, Greenwich, NY 12834

David M. Hawkins, J.

For the following reasons, Plaintiffs’ motion for summary judgment is granted in the amount of $7,750.00.

In this action, Plaintiffs seek $11,625.00 for reimbursement upon rescission of contract, breach of contract, and unjust enrichment. Plaintiffs claim that the Parties entered into a contract (the Contract)¹ to rent a venue for a wedding (the Wedding). After the Governor of the State of New York issued Executive Orders banning people from congregating because of the COVID-19 virus, Plaintiffs sought a refund based upon a force majeure provision of the Contract. Defendant refused. Plaintiff now moves for summary judgment and Defendant opposes.

Plaintiffs, Emily Nelkin and Brian Farr, state that on November 6, 2018, they entered into the Contract with the Defendant, Wedding Barn at Lakota's Farm, LLC (Wedding Barn), to rent the venue for October 10, 2020. The rental fee was $15,500.00, which included an initial $3,875.00 booking fee. Plaintiffs state that as of May 2020, Ms. Nelkin's parents paid $11,625.00 (on Plaintiffs’ behalf), with the final payment due sixty days before October 10, 2020. Plaintiffs state that in May of 2020, they decided to cancel the October 10, 2020 wedding due to the COVID-19 pandemic and the restrictions placed upon gatherings. Plaintiffs had previously planned on having one-hundred-and-fifty guests at their wedding,

Plaintiffs state that on or about May 15, 2020, Ms. Nelkin informed Kimberly Finney, a member of Wedding Barn, that they were cancelling the Wedding. They state that Ms. Finney suggested that the Wedding be postponed a year, but Plaintiffs did not agree to do so. Plaintiffs state that Ms. Finney refused to refund any of the money already paid on the Contract. Plaintiffs state that they entered the contract and dealt with the Defendant in good faith.

Plaintiffs submit the following in support of the motion:

a copy of the Contract;

an email from Plaintiffs’ attorney to the Defendant, dated May 28, 2020, indicating that they wished to cancel the wedding due to the COVID-19 pandemic and requesting a refund;

a letter from Plaintiffs’ attorney to Ms. Finney dated June 2, 2020, requesting a refund due to the impossibility of having the wedding on October 10, 2020 due to the COVID-19 pandemic; and

a decision by the United States District Court for the Northern District of New York, referencing Executive Order 202: Bill & Ted's Riviera, Inc. v. Cuomo , 494 F. Supp. 3d 238 [2020]

Defendant argues in opposition that the Plaintiffs have failed to meet their burden for summary judgment. Defendant argues that in March of 2020, by executive order, all non-essential businesses were shut down and gatherings in excess of ten people were prohibited. It further argues that the State of New York was separated into regions and that Defendant was located in the "Capital District Region". Defendant argues that in May of 2020, the Capital District Region was in "Phase III" of reopening, which permitted gatherings of twenty-five people, and that by July 1, 2020, gatherings of fifty people were permitted. (Defense Counsel's Affirmation in Opposition paragraph 6) Defendant further argues that it offered to either continue to hold the wedding with a reduced number of people or reschedule the event for the following year.

Defendant argues that Plaintiff unilaterally chose to breach the contract and that Defendant would have been able to provide the venue on October 10, 2020, with a reduced number of guests. Defendant further argues that the number of guests was not a material term of the agreement, and that, as of October 10, 2020, the New York City COVID-19 guidelines permitted gatherings of fifty people.

Kimberly Finney states that on November 6, 2018, the Parties entered into the Contract to rent the venue for October 9 and 10 of 2020. Ms. Finney states that the total fee was $15,500.00, including a non-refundable $3,875.00 booking fee. She states that the $15,500.00 was not due until sixty days before the event and that Plaintiffs had paid a total of $11,625.00 as of May 2020.

Ms. Finney further states that in May of 2020, Ms. Nelkin informed her that she was terminating the Contract. She states that she advised Ms. Nelkin that it was more than five months until the Wedding, but Ms. Nelkin insisted on cancelling. Ms. Finney states that Plaintiffs’ Counsel (Ms. Nelkin's father) also contacted her during May of 2020 and refused to change the date or modify the Wedding plans. She informed him that she would not refund the deposits paid.

Ms. Finney argues that the Defendant did not breach the contract and was "ready, willing, and able to perform the contract to the fullest extent of NYS law." She further states that the Defendant was willing to change the date of the event and that the Plaintiffs unilaterally chose to terminate the Contract. Ms. Finney further states that on July 1, 2020, the "Capital Region" was designated in "Phase IV" of re-opening, which allowed gatherings of up to fifty people, and that it remained so designated on October 9 and 10 of 2020. She states that the Defendant was injured by the Plaintiffs’ breach, and that Plaintiffs owe the remaining unpaid $3,875.00 and $6,000.00 in attorney's fees.

" ‘The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.’ " ( Ferrigno v. Jaghab, Jaghab & Jaghab, P.C. , 152 A.D.3d 650, 652, 59 N.Y.S.3d 115 [2nd Dept. 2017]quoting Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ) The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." ( Mazurek v. Metropolitan Museum of Art, 27 A.D.3d 227, 228, 812 N.Y.S.2d 12 [1st Dept. 2006]citing Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ) If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. ( Rotuba Extruders, Inc. v. Ceppos , 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] )

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach." ( Riccio v. Genworth Fin., 184 A.D.3d 590, 591, 124 N.Y.S.3d 370 [2nd Dept. 2020] [internal quotation marks omitted ])

Force majeure clauses are to be interpreted in accord with their function, which is to relieve a party of liability when the parties’ expectations are frustrated due to an event that is "an extreme and unforeseeable occurrence," that "was beyond [the party's] control and without its fault or negligence". When the event that prevents performance is not enumerated, but the clause contains an expansive catchall phrase in addition to specific events, "the precept of ejusdem generis as a construction guide is appropriate"--that is, "words constituting general language of excuse are not to be given the most expansive meaning possible, but are held to apply only to the same general kind or class as those specifically mentioned."

( Team Mktg. USA Corp. v. Power Pact, LLC , 41 A.D.3d 939, 942-943, 839 N.Y.S.2d 242 [3rd Dept. 2007]citing 30 Lord, Williston on Contracts § 77:31 [4th ed]; 8-31 Corbin on Contracts § 31.4 [2006]; United Equities Co. v. First Natl. City Bank , 41 N.Y.2d 1032, 395 N.Y.S.2d 640, 363 N.E.2d 1385 [1977]affg 52 A.D.2d 154, 383 N.Y.S.2d 6 [1st Dept. 1976] ; Macalloy Corp. v. Metallurg, Inc. , 284 A.D.2d 227, 227, 728 N.Y.S.2d 14 [1st Dept 2001] ); Kel Kim Corp. v. Central Mkts. Inc. , 131 A.D.2d 947, 950, 516 N.Y.S.2d 806 [1987], affd 70 N.Y.2d 900, 524 N.Y.S.2d 384, 519 N.E.2d 295 [1987] ).

Following the Governor's Executive Orders banning people from congregating, multiple lower courts have reiterated the purpose of contractual force majeure clauses. (See e.g. 1877 Webster Ave. v. Tremont Ctr., 2021 N.Y. Slip Op. 21113, 72 Misc..3d 284, 148 N.Y.S.3d 332 [Sup. Ct., 2021] ["Force majeure clauses excuse non-performance only where the reasonable expectations of the parties have been frustrated due to circumstances beyond the control of the parties"] Sanders v. Edison Ballroom LLC, 2021 N.Y. Slip Op. 30900(U), 2021 WL 1089938 [Sup. Ct., New York County, March 22, 2020] ["Courts have interpreted force majeure clauses according to their function of relieving a party from its obligations when expectations are frustrated due to an event that is an extreme or unforeseeable occurrence and beyond the parties’ control and without its fault or negligence"]; 98-48 Queens Blvd LLC v. Parkside Mem. Chapels, Inc. , 70 Misc. 3d 1211(A), 137 N.Y.S.3d 679 [Civ. Ct., 2021] ["[O]nly where the force majeure clause specifically includes the event that actually prevents a party's performance will that party be excused."]

Here, the Contract contains a force majeure provision, which specifically includes "government regulations" and "disasters":

28. IMPOSSIBILITY:

The performance of this Agreement is subject to termination without liability and refund of all refundable deposits upon the occurrence of any circumstances beyond the control of either party — such as acts of God, war, acts of terrorism, government regulations (including zoning ordinance), disaster, strikes (except those involving employees or agents of the party seeking the protection of this clause), civil disorder, or

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