Monday, November 26, 2007
This decision by Judge Sylvia Ash (NY Supreme, Kings County) in Andreani v. Romeo Photographers & Video:
Defendant is a professional photography and video studio, owned and operated by Frances Romeo. On December 31, 2005, Plaintiff entered into a contract with Defendant for Defendant to photograph and videotape his wedding. The contract price was $5,400 which Plaintiff paid in full. Pursuant to the terms of the contract, Defendant was obligated to provide 3 professionals to photograph and videotape the wedding and provide 70 pictures for the wedding album.
Plaintiff testified that on the day of his wedding, April 9, 2006, only 2 professionals showed up, a photographer and a videographer. Plaintiff states that while 360 pictures were taken of the wedding, most of the photos were duplicates; that there were no individual table or group photos; no photos of the guests dancing; no photos of the bride's family; no black and white photos; no special effects shots; no collage shots; no photos of the groomsmen; no photos taken during the cocktail hour; minimal shots of the guests toasting the bride; minimal shots of the wedding guests; and incomplete shots of the bridal party. Plaintiff further asserts that the pictures taken at his wedding were not representative of the pictures shown to him in the Defendant's sample wedding albums. He argues that the pictures produced for his wedding album were unacceptable in that they were amateur with respect to positioning, poses, and lighting and that the pictures failed to adequately commemorate his wedding. He testified that while he was satisfied with the video, he was not satisfied with the wedding pictures.
Frances Romeo testified that the contract did not provide for any special effects, collage or black and white photos, nor did the contract stipulate a specific number of photos to be taken. The contract provided that the wedding album would consist of 70 photos selected from the total number of photos taken. A total of 360 photographs were taken. Mrs. Romeo further testified that she has been in the photography business for over 25 years, is personally involved in all final products and that she is happy with the final pictures in Plaintiff's wedding album.
Defendant's witness, Joseph Romeo, testified that he is the spouse of Frances Romeo and has been a professional photographer for over 40 years. Mr. Romeo testified that he has operated Defendant's photography and video studio for the past 7 years and photographs approximately 90 weddings per year. He stated that he has received specific training from the equipment manufacturers on how to operate Defendant's photo lab equipment and machines. He further stated that he reviews proofs, correct proofs color, is familiar with color coordination, and that he personally supervised the color printing of the pictures in Plaintiff's wedding album.
Defendant's second witness, Isaka Baribon, testified that he has been the Senior Photographer at Defendant's studio for the past 14 years and takes pictures for over 100 weddings per year. Mr. Baribon stated that he was the photographer for Plaintiff's wedding, that the third person who did not show up on the date of Plaintiff's wedding was the helper who carries the studio lights. That the pictures taken were not affected by the failure of the helper to show up because he personally took care of the lighting equipment himself. Mr. Baribon further stated that there were no pictures taken of the bride and her family because the bride told him she did not have time to take those pictures and that the bride also told him to only take large group shots.
BREACH OF CONTRACT ACTION
It is well settled that a party entering into a contract to retain another to perform services can expect performance with the reasonable care, skill and diligence owed generally by practitioners in that particular trade (Milau Associates v. North Ave. Development Corp., 42 NY2d 482, 486; Bialo v. Walter Lowlier, Inc., 160 AD2d 559). In the case at bar, although there was no provision in the contract specifying how the photos were to be taken, New York recognizes an implied promise in a contract to perform the contract in a skillful and workmanlike manner (Bialy v. Walter Lowlier, Inc., supra; Mohawk Overall Co. v. Brown, 163 AD157). A party undertaking to perform work is charged with a common law duty to exercise reasonable care and skill according to standard practices in the trade. (International Fidelity Ins. Co. v. Gaco Western Inc., 229 AD2d 471, 474). The failure to comply with this implied duty to perform in a skillful and workmanlike manner may entitle the other party to damages resulting from said failure (Mohawk Overall Co., supra; Pitcherello v. Moray Homes, LTD., 150 AD2d 860; DeLuca v.Wahl, 140 AD2d 956).
Weddings are a special time of celebration and happiness filled with special moments that mark the beginning of a new family and a life together. Weddings are unique and, hopefully, once in a lifetime events. (Griffin-Amiel v. Frank Terris Orchestras, 178 Misc.2d 71, 677 N.Y.S.2d 908, 1998 N.Y. Slip Op. 98502). Weddings have endured the passage of time which is why they are still celebrated today. " . . . brides, grooms and parents spend extraordinary sums and expect the wedding and the reception to be magical and memorable in every respect. Generally, the Courts agree" (Griffin-Ameil v. Frank Terris Orchestras, supra; Levin v. Halston, 91 Misc.2d 601; 398 N.Y.S.2d 339 (1977)). Every culture has and cherishes its own wedding traditions. The wedding album is a time capsule which memorialize those special moments and traditions to be enjoyed over and over again from generation to generation. The preparation and production of the wedding album is crucial since there are no second chances to capture a once in a lifetime moment. The wedding album typically consists of pictures of not only the bride and groom and their family and guests, but also traditional events, such as cutting the wedding cake, toasting the bride and groom, throwing the bridal bouquet and removal of the bride's garter belt. The wedding album is a book that depicts the story of the people in attendance and the events that happened at the wedding. To this end, most bride and groom hire the services of a professional photographer to ensure that their wedding story is adequately captured and memorialized on film.
The Court finds that Plaintiff has stated a cause of action for breach of contract (Farkas v. Picker, 2002 WL 32001248 (NY Sup. App Term), 2002 N.Y. Slip Op. 50588U)). The Plaintiff asserts that the quality of the pictures were unacceptable as to color, lighting, poses, positioning and events. An examination of the photos by the Court supports Plaintiff's assertions. The majority of the photos depicts dark and grey backgrounds and very poor lighting. The colors were clearly distorted, for example, there were pictures taken outdoors where the sky appeared to be purple instead of blue or gray; pictures where the grass and trees appeared to be brown instead of green and pictures where the lake appeared to be blue in some shots and brown in other shots. The majority of the indoor pictures were dark, blurry and unfocused. There were very few shots of the bride and groom with the bridal party and with both sides of their families. There were also photos of the bride and groom which included staff workers in the background. Overall, the photos appeared to be amateurish and not of a professional nature. Defendant's witnesses testified that they were satisfied with the final pictures. However, it is clear from a lay person's point of view, that the pictures were not skillfully taken and do not comport with the reasonable standards and practice in the trade of professional photography. Expert testimony is not necessarily required to establish unworkmanlike work (Naccarasto v. Salamone, 157 AD2d 888; Caceci v. DiCanio Const. Corp., 132 AD2d 591). Given the cumulative years of experience of the Defendant in the photography business, it was reasonable for the Plaintiff to expect photographs of a professional, skillful and workmanlike nature. When photographs are less than professional quality, the bride and groom are deprived of the full enjoyment, which they can rightfully expect, of pictures commemorating their wedding and reception (Grather v. Tipery Studios, 334 So2d 758 (La.App.1976). The Court concludes that the Defendant breached the contract in a material respect in that the photographs were less than professional.
Plaintiff seeks damages in the amount of $2,700.00. He contracted for a video and a wedding photo album for a total cost of $5,400.00. Plaintiff expressed no dissatisfaction with the video and is therefore seeking half of the contract price. The parties did not itemize the bill, nor was there testimony that one part of the job was more costly than the other. However, the amount of damages need only be establish with reasonable certainty under the Facts of the case. This rule does not require mathematical accuracy, absolute certainty or exactness but prohibits undue speculation (see, 36 NY Jur.2d Damages §15;see also E.W. Bruno Co. v. Friedberg, 28AD2d 91, affd. 23 NY2d 798 and Reichman v. Warehouse One, Inc., 173 AD2d 250).
Here, the Court has taken into consideration the contract price, the value of the photos to the Plaintiff, the fact that the photos cannot be replaced or corrected, and Plaintiff's satisfaction with the video. Based on the above, the Court hereby awards damages to the Plaintiff in the amount of $2,700.00 or half the contract price.
This constitutes the Decision and Order of the Court.
Here's a link, though a subscription to the NYLJ is required.
[Meredith R. Miller]