Whalen v. Villegas
| Decision Date | 01 April 2013 |
| Citation | 968 N.Y.S.2d 343,2013 N.Y. Slip Op. 23107,40 Misc.3d 310 |
| Parties | Jacob WHALEN and Stephanie Whalen Nee Stephanie Spector, Plaintiffs, v. Nina Sosnicka VILLEGAS, Alex Villegas and Unique Vision Studios, Defendants. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Lisa Siano, Esq., for plaintiffs.
Steinberg & Gruber, P.C., for defendants.
Plaintiffs move for summary judgment on their first and third causes of action and/or to strike defendants answer for failure to comply with a prior order of this court directing discovery and/or to compel discovery.
“Long ago it must be, I have a photograph, preserve your memories, they're all that left you.” “Bookends” Paul Simon.
What damages can the bride and groom recover when the memories that were supposedto preserved of their wedding in photographs are not preserved?
Stephanie Spector (“Stephanie”) and Jacob Whalen (“Jacob”) (collectively “Whalen”) were married on August 20, 2011. They will never be able to fully re-live their wedding in pictures because the defendant Unique Vision Studios (“Unique”) did not properly transfer all of their wedding photographs from camera to computer.1
Jacob entered into a written agreement with Unique dated December 2, 2010 pursuant to which Unique was to provide 10 hours of photography at an unlimited number of locations, blended style photography, 300–500 high resolution color corrected and retouched images on a DVD with rights to reproduce and a password protected web gallery with option to purchase prints, two parent 8x8 photo books, an engagement photo shoot and a 16x20 canvas print.
Unique provided a photographer and photographer's assistant for Whalen's wedding who took the required photographs at all the appropriate locations.
The photographs were taken on a digital camera and were recorded on a memory card. When the photographer got back to Unique's study, the photographs were supposed to be transferred from the memory card in the camera used to photograph Whalen's wedding to Unique's computer for color correction and re-touching.
Unique believed all the photographs had been downloaded from the memory card to its computer. Unique did not check its computer to confirm the photographs had been transferred from the memory card to computer until Nina Sosnicka Villegas (“Nina”) began to look at the photographs to retouch the images and do the color corrections.
Before Nina checked the photographs, Unique had re-used the memory card used to shoot Whalen's wedding and shot over some of the pictures taken of Whalen's wedding. As result, the photographs taken at the cocktail hour, the portraits of the entire bridal party, the photographs of the bride with her maid of honor and bridesmaids and the family portraits were permanently lost.
Whalen have received the photographs of the bride and groom alone, the bridal party getting ready for the wedding, the wedding ceremony, the first dance, the bride's dance with her mother, the groom's dance with his mother and photographs of the bride and the groom cutting the cake. Whalen claims these photographs were taken by the photographer's assistant and are of inferior quality. Whalen claims these photographs do not show all subjects of the shots and were unedited. Plaintiff claims none of the photographs they received were color corrected or retouched.
Neither party indicates whether Stephanie or Jacob's parents have received their photo books, whether Whalen have received their 16x20 canvas or the photographs of the engagement photo shoot and/or if Unique posted a web gallery.
By motion submitted to the court on June 12, 2012, plaintiff previously moved for summary judgment and to compel discovery. By order dated August 21, 2012, this Court denied plaintiff's motion for summary judgment on the grounds plaintiff papers were facially defective because plaintiff had failed to attach of copy of the pleadings to the papers. The court further found the papers were insufficient as a matter of law to establish a prima facie entitlement to judgment as a matter of law. Plaintiff has not appealed from or moved to renew or reargue from the court's August 21, 2012 decision and order.
The Court's order dated August 21, 2012 also directed defendant to provide responses to Items 3, 5, 6 and 8 of Plaintiff's Notice to Produce. The order found plaintiff's demand for interrogatories and notice to admit palpably improper and vacated the demand for interrogatories and notice to admit.
Whalen moves again for summary judgment on its first and third causes of action. In the first cause of action, Whalen seeks to recover in breach of contract the money it paid Unique for the photographs together with costs incurred to rent the Vanderbilt Mansion for family and wedding party portraits, costs incurred for a limousine to transport the family and wedding party to the Vanderbilt Museum and from the Vanderbilt Museum to the reception and additional costs incurred for hair and make-up services for the bride, the bride and groom's mother and the bridal party at the Vanderbilt museum and wedding venue.
In the third cause of action, Whalen seeks to recover damages for the costs they claim they will incur to re-shoot the lost wedding photos including $4748 to rent the catering hall at which the wedding and reception were held for 4 hours and food for 50 people, $1200 for flowers, $1884 or tuxedos for the groom, groomsmen the bride's father and the ring bearer, $700 for fittings for the bridal party, $1990 for hair and make-up, $1957 for travel expenses and $2440 to pay another photographer to shoot the pictures.2 The third cause of action seeks these damages in contract and tort based upon defendants “gross breach” of the original contract and “gross negligence” in shooting and losing the wedding photographs. (See, Complaint ¶ 30).
In addition to the original agreement, the third cause of action is based upon a November 7, 2011 e-mail from Nina to Stephanie advising Stephanie some of the photos had been lost. The e-mail stated one of the memory cards had produced corrupted files. Nina stated she did not learn of this problem until she began editing the photos. The e-mail further stated Unique had never previously had this problem. Stephanie was advised Unique made efforts to recover the corrupted photos but could not. The e-mail advised Stephanie the family portraits, the photos of Stephanie and the bridesmaids and group photos of the bridal party were corrupted and unrecoverable.
The e-mail stated a second camera had been used to shoot the wedding and these photos were saved and would be provided. In this e-mail, Nina offered to re-shoot the lost photos.
On November 17, 2011, Whalen's attorney sent a letter of Unique advising Unique Whalen would accept the offer of a re-shoot provided it was done “TIME IS OF THE ESSENCE.”
Unique never re-shot the lost photos. Whalen never had the lost photos re-shot.
Whalen asserts defendant has not complied with the court's prior order directing defendant to respond to Items 3, 5, 6, and 8 of plaintiff's Notice to Produce. Defendants assert they responded by letter dated August 29, 2012 in which defendant asserts it has previously provided Whalen with a copy of the contract (Item 3), prints of all unedited photographs (Item 5), prints of all edited photographs (Item 6) and all print screens and web galleries of images of Whalen's wedding (Item 8). Defendant claims it does not have any discs, flash drives, thumb drives or any other electronic devices containing images of plaintiff's wedding other than what it has already provided to Whalen (Item 7).
Plaintiffs motion for summary judgment could be summarily denied on the grounds its papers are procedurally defective because plaintiff has failed to attach a copy of the pleadings to its motion papers. Mieles v. Tarar, 100 A.D.3d 719, 955 N.Y.S.2d 86 (2nd Dept.2012); Zellner v. Tarnell, 54 A.D.3d 329, 861 N.Y.S.2d 598 (2nd Dept.2007); and Matsyuk v. Konkapilos, 35 A.D.3d 675, 824 N.Y.S.2d 918 (2nd Dept.2006); and CPLR 3212(b). Plaintiffs motion papers do not contain a copy of the defendants answer. The defendants answer is a pleading. CPLR 3011.
Denying the motion on this basis would simply delay the final resolution of this action and would leave open the issue of what damages Whalen's is entitled to recover. Since the court clerk's file contains a copy of defendants answer, the court will consider the filed answer in deciding the motion.
Whalen's first and third causes of action are actions to recover damages for breach of contract. Plaintiff establishes a prima facie cause of action for breach of contract by establishing the contract between Whalen and the defendants, performance by Whalen, breach by the defendants and resulting damages. JPMorgan Chase v. J.H. Electric of New York, Inc., 69 A.D.3d 802, 893 N.Y.S.2d 237 (2nd Dept.2010); Furia v. Furia, 116 A.D.2d 694, 498 N.Y.S.2d 12 (2nd Dept.1986); and Sylmark Holdings Ltd. v. Silicone Zone International, Ltd., 5 Misc.3d 285, 783 N.Y.S.2d 758 (Sup.Ct. N.Y. Co.2004).
The agreement to shoot photographs at a wedding imposes a contractual obligation on the wedding photographer to shoot the photographs a skillful and workmanlike manner and to provide the bride and groom and their families with professional photographs in accordance with the terms of the agreement. The photographer is required to use reasonable skill and care in accordance with accepted industry practices. Andreani v. Romeo Photographers & Video Productions, 17 Misc.3d 1124(A), 2007 WL 3311389 (Civ.Ct. Kings Co.2007).
Since the December 2, 2010 contract was breached because defendants are unable to provide the photographs they agreed to provide, the court could grant summary judgment to Whalen on the issue of liability. However, the court cannot determine based upon the pleadings and/or the papers submitted in support of the motion for summary judgment against...
To continue reading
Request your trial