Wednesday, November 28, 2007
In his dissent in the recent contracts case, Seawright v Amer. Gen. Fin. Serv., Inc., Judge Boyce F. Martin relied on a rather unusual authority in the lone footnote to the dissenting opinion. Rather than citing to Williston or Corbin or some other learned treatise or court, Judge Martin referenced a conversation between Homer Simpson (picture, left with pink donut . . . donut, mmmmrrrrrggggghhh (slobber)) and God (pictured left, without donut).
In the case, plaintiff Seawright claimed that she was discharged by her employer in violation of state anti-discrimination law and the Family and Medical Leave Act. Defendant sought to compel arbitration, citing an arbitration agreement to which it claimed Seawright had agreed. Seawright countered that she had never signed the agreement, but the majority found that she had "signaled her assent" to the arbitration agreement "through action," in this case by continuing her employment.
The dissent found "no proof that she manifested assent to the contract." And here is where the opinion becomes animated. "Without a signal that she understands that a contract is being made," Judge Martin queried, "how is one to know if she has truly accepted?" There follows a footnote:
Homer Simpson talking to God: "Here's the deal: you freeze everything as it is, and I won't ask for anything more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done." The Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).
Hat tip to my student, Alison Preest, for pointing out the case to me.
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).