UPDATE: Official Ruling Released for Nathan Currier's Lawsuit Against Brooklyn Philharmonic

Decided on May 6, 2013
Supreme Court, Kings County

7661/2009

Plaintiff's Attorney: Rollo C. Baker, Morgan Edwards, Elizabeth R. Fisher; Quinn Emanuel Urquhart & Sullivan, LLP; 51 Madison Avenue, NY, NY 10010

Defendant's Attorney: Harvey S. Mars; Law Office of Harvey S. Mars, LLC; 322 West 48th Street, NY, NY 10036

David Schmidt, J.

Defendant Brooklyn Philharmonic Symphony Orchestra, Inc. (BPO) moves, pursuant to CPLR 3212, for an order dismissing the complaint in this action. The complaint asserts two causes of action against BPO, for breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff Nathan Currier, d/b/a C & I Music Productions (Currier) opposes. For the following reasons, the motion is granted in part and denied in part.

I.Background

Between 1998 and 2003, Currier composed and completed an original work of music, an oratorio, he entitled Gaian Variations. Affirmation of Harvey S. Mars, dated December 17, 2012 (Mars aff.), Ex. 1 (complaint), 7- 8. The composition was based upon the Gaia theory, which conceives of the earth as a single living entity. Id., Ex. 1, 8. In or around 2002, Currier started looking for venues and producers to perform his work. Id., Ex. 3 (Currier Dep. Tr.) at 19.

On August 8, 2003, Currier entered into a Letter of Agreement with BPO for "one performance of Gaian Variations at Avery Fisher Hall." Id., Ex. 10 (Agreement). Currier signed on behalf of himself d/b/a C & I Music Productions,^[FN1] and Cathy Cahill (Cahill), then CEO of [*2] BPO, signed on behalf of BPO. Id. As set forth in the Agreement, the "Type of Service" for which BPO was engaged was "one Concert (3 hours or under) + rehearsals as detailed below." Id. The Agreement further provides for three rehearsals in advance of the Concert and a Concert to take place on April 21st at Avery Fisher Hall, described as an "8.00 p.m. concert (under 3 hrs)." Id. Pursuant to the Agreement, Currier agreed to pay BPO a total fee of $72,200.00, a sum that was subject to a final settlement of expenses 10-14 days after the event. Id.

Both parties had additional responsibilities under the Agreement. Among other things, Currier was responsible for: (1) "[a]rranging, contracting, and paying for the performance space (Avery Fisher Hall) and all related aspects of the concert including but not limited to all production, marketing, and PR expenses"; (2) "[a]rranging and paying for separate rehearsal space"; (3) "[p]aying Brooklyn Philharmonic for all orchestra fees relating to [the] event"; (4) "[e]ngaging and paying for soloists, choirs and conductor"; (5) "[p]aying for all equipment rentals, piano tunings, etc."; and (6) "[p]aying and arranging for music performance rights and orchestral parts." Id.

BPO, meanwhile, was responsible for, inter alia: (1) "[e]ngaging all musicians"; (2) "[f]iling the Union contract with Local 802"; (3) "[a]cting as a payroll company for and running the musicians payroll"; and (4) "[p]roviding a production manager to assist at rehearsal and concert." Id.

The Agreement between BPO and Currier was also "subject to the rules and regulations established by the American Federation of Musicians, Associated Musicians of Greater New York, Local 802, and the Brooklyn Philharmonic's Collective Bargaining Agreement with Local 802" (the CBA). Id. In addition, the Agreement provided that "any change to the type of service, event schedule, instrumentation, or dates, that project costs will be revised in accordance with the rules and regulations of the Associated Musicians of Greater New York, Local 802, and paid for by C & I Music Productions." Id.

Two provisions of the CBA are especially relevant to this litigation. First, Article 8 (Wages and Other Compensation), Section A(1) states that the wage rate for a performance taking place between September 2003 and September 2004 that is 2 ½ hours or less is $200.00 per musician. Id., Ex. 13 (CBA). The same section provides that "[s]ingle works of up to three (3) hours may be performed at the above performance rate [$200.00/hr]." Id. Section A(1) also provides that overtime before midnight is to be calculated at "one and one half (1½) times the above hourly rate in segments of fifteen (15) minutes or fraction thereof." Id.

Second, Article 13 (Service Conditions), Section D (Rest Breaks), subsection (2) states that "[n]o break shall be for less than ten (10) minutes away from the stand. Breaks in performance shall be no less than twenty (20) minutes away from the stand without permission of the Orchestra Committee." Id.

As originally structured, Gaian Variations comprised three acts. Id., Ex. 3 at 20. Currier indicated to BPO that from start to finish Gaian Variations would take about 2 hours and 5 minutes to perform. Id., Ex. 17 at 1-2.^[FN2] [*3]

With respect to the length of rest breaks during the performance of Gaian Variations, Currier testified that in an April 15th meeting prior to the performance, Stephanie Yeh (Yeh), BPO's production assistant for the performance, had indicated to him that it would be fine for him to schedule two 12-minute rest breaks during the performance. Id., Ex. 3, p. 170. This testimony is consistent with an e-mail prepared after the performance in which Yeh acknowledged that she had told Currier about a week before the performance that two 12-minute intermissions would be fine. Id., Ex. 15 at 222 ("I thought that since [BPO] generally [had] a 20 minute intermission that two 12-minute intermissions would suffice since that is 22 minutes [sic]").

In addition, Yeh testified that she understood section D(2) of Article 13 to mean that musicians were owed at least twenty minutes in breaks over the course of a three-hour performance, and that it was at the producer's discretion whether to schedule the required break time over one intermission or two, subject to the additional constraint that no individual break "shall be for less than ten (10) minutes away from the stand." Id., Ex. 6 at 154-55, 162-63, 173-74. In contrast, Jonathan Taylor (Taylor), the personnel manager of BPO, testified that he understood section D(2) to require any break in a performance to be at least twenty minutes in length and, therefore, a performance with two intermissions would provide for a minimum of 40 minutes of rest breaks for the orchestra. Id., Ex. 5 at 99-104. At no time, however, was Currier informed of Taylor's belief that taking two intermissions would entitle the orchestra to 40 minutes of rest breaks. Id., Ex. 5 at 109 (noting that Taylor never corrected Yeh's alleged misinterpretation of section D[2]).

Of the three rehearsals that took place, none were full dress rehearsals and the full piece was never rehearsed from beginning to end prior to the date the Concert was to be performed. Id., Ex. 3 at 201-06.

The premiere of Gaian Variations took place on April 21, 2004 at Avery Fisher Hall. The concert commenced at 8:05 p.m. Although Avery Fisher Hall has approximately 2,800 seats, there were only several hundred people in the audience. Id., Ex. 3 at 320.^[FN3] What followed, according to Currier, was a concert lasting 159 minutes, during which time BPO played for 130 minutes and was given 29 minutes of rest break. Id., Ex. 7 at 2.

Act I of the concert was played with slower tempi than in Currier's composition and lasted 58 minutes, finishing around 9:03 p.m. Id. Immediately prior to the first intermission, Taylor learned that Currier had scheduled shortened intermissions. Id., Ex. 5 at 75. As per [*4]Article 13, Section D(2) of the CBA, the orchestra committee was consulted and they agreed to the shortened breaks so long as it would not be used to evade overtime, since the 2-hour 5-minute estimate of performance time plus two 20-minute intermissions would still be well within the 11:00 p.m. cut-off by 15 minutes. Id., Ex. 5 at 74-75; Ex. 15 at 218-19. Thus, as Cahill and Taylor understood it (but not Currier), the balance of rest time owed the musicians would be subtracted from the total performance time at the end of the concert to make up for the shortened breaks. Id., Ex. 5 at 84-86.

Though scheduled for 12 minutes, Currier's log showed that the first intermission was approximately 15 minutes long. Id., Ex. 7 at 2 (the logged times for each of the three Acts and two intermissions were purportedly provided by Lincoln Center). During this intermission, no employee of BPO approached the conductor to express any concern about potential overtime. Id., Ex. 4 at 71. Act II was also played with slower tempi, and concluded around 10:12 p.m. Id., Ex. 7 at 2. The second intermission followed Act II and was also scheduled to last 12 minutes, but was delayed by an emergency meeting between Currier and BPO officials. Id., Ex. 3 at 297. It was during this emergency meeting that Cahill explained, for the first time, that pursuant to union rules, Currier faced significant overtime costs if he wanted to have his piece played as written. Id., Ex. 3 at 299; Ex. 7 at 7. Cahill further informed Currier that, consistent with her interpretation of the rest-break provision of the CBA, he faced significant overtime costs unless he made major cuts to his piece.^[FN4] Id. Currier informed Cahill that he did not have the funds to pay overtime. Id., Ex. 3 at 347; Ex. 7 at 7. In an attempt to salvage the situation, Currier cut three movements (movements 34-36) from the middle of Act III, thereby ensuring the finale of Gaian Variations would be played (movements 37-40) . Id., Ex. 3 at 349.

The curtain rose on Act III at approximately 10:27 p.m. Id., Ex. 7 at 2. According to the written score and demo recordings generated by Currier and provided to BPO, Act III was considerably shorter than the two preceding acts, and would take approximately 35 minutes to play in its entirety. Id., Ex. 7 at 1. With the cuts agreed to by Currier, the piece could have been concluded by 11:05 p.m.^[FN5] At 10:44 p.m., after the conclusion of variation no. 33 (Gaian Variations contained 40 variations [Id., Ex. 14]), Taylor signaled the conductor to end the concert - at that point the conductor took a bow, left the podium and the performance concluded. Id., Ex. 4 at 89; Ex. 5 at 115-18. According to Currier, it would have taken less than 14 minutes to complete the finale. Id., Ex. 7 at 3.

After the concert, Currier received a reconciliation statement from Lincoln Center. The event settlement indicated that box office receipts totaled $3,065. On March 10, 2009, Currier commenced this action. Discovery having been completed, the instant motion followed.

II.Discussion [*5]

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

In support of its motion to dismiss Currier's breach of contract claim, BPO contends that the record demonstrates that it met all its contractual obligations under the Agreement and that Currier has not met his burden of establishing that BPO breached any of its commitments.

However, even assuming that BPO has established a prima facie case, significant issues of fact bar the court from granting the requested relief. As an initial matter, Currier bargained for "one Concert (3 hours or under)." Exactly what was owed to Currier as a result remains a matter of dispute. The record demonstrates a sharp disagreement, even among the employees and officials of BPO engaged in producing Gaian Variations (Yeh, Taylor and Cahill), over the proper interpretation of the "rest break" provision in the CBA. As Currier points out, even under the calculation of time most favorable to BPO, i.e., that there was supposed to be 40 minutes of break time allocated to the 2 intermissions, the concert was still terminated 10 minutes prematurely. Whether the breach was more substantial, as Currier contends (consistent with Yeh's understanding that the musicians were only owed 20 minutes over the three hour performance), is an issue of genuine factual dispute. The record is also clear that at the April 15th meeting, Yeh never explained to Currier that shorter intermission times would have to be made up and would be deducted from the contracted for 3-hour performance.

Nevertheless, BPO argues that Currier's misapplication and misunderstanding of the CBA was his own fault and cannot be attributed to BPO. This argument must be rejected. As already noted, the employees and executives of BPO (who it cannot be denied had more frequent occasion to review and apply the various provisions of the CBA than did Currier) could themselves not agree as to the proper interpretation to be given to the "rest break" provision. Indeed, as the court observed during oral argument, even if Currier had reviewed the CBA, nothing in Section D(2) would have alerted him to the fact that in the event the orchestra committee agreed to a shortened intermission, the missing time would still have to made up elsewhere during the 3-hour performance. See Tr. at 31. Moreover, Article 13 is completely silent as to what effect break times have on calculating overtime.

Finally, as acknowledged by BPO's counsel during the hearing on the motion (see Tr. at 34), there is nothing in the record that indicates that during the emergency meeting with Currier, Cahill or any other BPO official explained to Currier that the overtime charges they were warning him about (which Currier told them he could not pay) would begin accruing at 10:44 (using the 12 minute intermission time originally scheduled), rather than after 11:05 - which was when Currier understood overtime would start running as a result of the language in the Agreement indicating that the "Type of Service" he bargained for was a "Concert (3 hours or under)." Mars aff., Ex. 10. [*6]

Nor is BPO's argument that Currier has not proven his damages a sufficient reason to grant BPO summary judgment to dismiss this claim. See Hirsch Elec. Co. v Community Services, Inc., 145 AD2d 603, 605 (2d Dept 1988) ("[I]t is a well-settled tenet of contract law that even if the breach of contract caused no loss or if the amount of loss cannot be proven with sufficient certainty, the injured party is entitled to recover as nominal damages a small sum fixed without regard to the amount of the loss, if any.") (citation omitted).^[FN6]

Moreover, given the record, the court's view is that the damages suffered by Currier are more than just nominal and that Currier's failure to articulate what they consist of at his deposition does not defeat his claim. "Difficulty in proof of damages is not a ground for dismissing a complaint on a motion for summary judgment. Proof of damages is essentially an issue of fact. The function of summary judgment is issue finding, not issue resolution." A.W. Fiur Co. v Ataka & Co., 71 AD2d 370, 375 (1st Dept 1979); see also Northway Mall Assoc. v Bernlee Realty Corp., 90 AD2d 739, 739 (1st Dept 1982) ("The point of CPLR 3212 . . . is precisely to determine all issues except damages on a motion where, as here, it is reasonable to infer that there probably are damages from the breach."). Even when damages must be proved, their precise quantity need not be certain. See Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 NY2d 99, 105-06 (1966) ("[W]hen it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain") quoting Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205, 209 (1886).

Consequently, to the extent that BPO moves for judgment in its favor to dismiss the breach of contract claim, the motion is denied.

However, a cause of action alleging breach of the implied covenant of good faith and fair dealing must be dismissed if it is merely duplicative of a breach of contract claim. See Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913, 915 (2d Dept 2011). Here, Currier alleges in conclusory fashion that BPO breached the covenant without stating facts to distinguish this cause of action from his breach of contract cause of action. Significantly, the conduct of which he complains is also the predicate for his breach of contract claim and alleges the same damages.

Moreover, there is no evidence in the record that would show that BPO had terminated the concert in bad faith as a scheme to deprive Currier of the benefit of a full performance of the Gaian Variations - circumstances under which such a claim may stand on its own. See Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc.,41 AD3d 269, 270 (1st Dept 2007). Indeed, the record shows that BPO was seeking to protect Currier from incurring overtime costs he represented he could not afford to pay. Consequently, the cause of action for breach of the implied covenant of good faith and fair dealing, is dismissed.

Accordingly, it is ORDERED that Brooklyn Philharmonic Symphony Orchestra, Inc.'s motion for [*7] summary judgment to dismiss the complaint is denied to the extent that it seeks dismissal of the breach of contract claim, and is otherwise granted.

Dated: May 6, 2013

ENTER:

_______________________

J.S.C.

Footnote 1: C & I Music Productions is Currier's solely owned proprietorship.

Footnote 2: Currier timed the piece two different times, the first time (where he personally played the piece from beginning to end on a keyboard) resulting in a duration of 2 hours, 4 minutes and 54 seconds, and the second time (where a computer program performed the piece) resulting in a duration of 2 hours, 2 minutes and 2 seconds. Mars aff., Ex. 3 at 179-82; and Ex. 7 at 1.

Footnote 3: Among other problems plaguing the performance, a publicity company hired by Currier failed to ensure that an advertisement for the concert appeared in the classical music section of the New York Times. Mars aff., Ex. 3 at 32 1-23. Upon hearing that the advertisement was being placed in the theater section rather than the classical music section, Currier decided to pull the advertisement altogether and run a radio advertisement instead. Id., Ex. 3 at 323. Currier testified that because the Times advertisement had not run "it was going to be hard to get people into the hall." Id., Ex. 3 at 321.

Footnote 4: Ms. Cahill's understanding, like Taylor's, was that each break was required to be 20 minutes, such that two breaks would require 40 minutes of intermission. Mars aff., Ex. 15 at 217.

Footnote 5: It is Currier's position that he was entitled to this additional 5 minutes because BPO musicians were not in place to begin the concert promptly at 8:00 p.m. In this regard, there is evidence in the record that Ms. Yeh held the curtain until 8:05 p.m., "because not everyone [in the orchestra] was in their places on time." Mars aff., Ex. 15 at 222.

Footnote 6: Currier does not dispute that he has waived entitlement to emotional distress (non-economic) damages. See Mars aff., Ex. 22 (item no. 3 in May 14, 2012 e-mail).