Decision and Order After Inquest Intervenor Plaintiffs Barbara Niven, Barbara Niven Enterprises, Inc., Sue Melke and Melke Branding moved for default judgment against Defendants Nicole Conn LLC, and Nicole Conn. By a decision and Order dated December 17, 2019, this Court granted Intervenor Plaintiffs’ motion for default judgment against Nicole Conn LLC. (NYSCEF Doc. No. 137). The case against Nicole Conn is currently stayed due to a Notice of Bankruptcy Case Filing in the United States Bankruptcy Court, Central District of California. (NYSCEF Doc. No. 35). Intervenor Plaintiffs assert breach of contract, fiduciary duty, and conversion claims. Intervenor Plaintiffs seek to recover the sum of $190, 279.00 plus points on the backend and costs and interest from July 15, 2019. (NYSCEF Doc. No. 133). Background This matter originates from a breach of contract action by Nicole Conn LLC and Nicole Conn against Defendants Weathervane Production, Inc., Jason Van Eman, A&R Media Fund, Revelation Studios Pty LTD, Patrick Creamer, Gregory L. Davis, Charles M. Fries, and Trans Pacific Entertainment (hereinafter “Underlying Action”). Plaintiffs in the Underlying Action allege defendants breached several agreements arising from the financing and distribution of a motion picture titled “Nesting Doll” (hereinafter the “Picture”). Under Index Number 653434/2018, Intervenor Plaintiffs Barbara Niven, Barbara Niven Enterprises, Inc., Sue Melke and Melke Branding (hereinafter “Intervenor Plaintiffs”) commenced an action against Nicole Conn LLC and Nicole Conn (Plaintiffs in the underlying action). Intervenor Plaintiffs allege that Defendants “fundamentally and unilaterally changed the Picture to a product that was not originally agreed upon.” (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 52). Intervenor Plaintiffs assert breach of contract, fiduciary duty, and conversion claims. On August 12, 2018, the honorable Andrew Borrok consolidated this matter with the Underlying Action. (NYSCEF Doc. No. 25). Following this Court’s decision granting default judgement against Nicole Conn LLC, an inquest was scheduled for September 10, 2021. Counsel for Intervenor Plaintiffs offered the testimony of Barbra Niven and Sue Melke. A screenwriter’s agreement, producer agreements, and a financing memorandum were submitted into evidence to corroborate each witnesses’ testimony. Defendant, Nicole Conn LLC failed to appear. Intervenor Plaintiffs failed to meet their burden of proof at inquest and failed to demonstrate that they are entitled to judgment against Defendant. The evidence submitted fails to establish the existence of a contract between the parties. The Court finds the testimony of Barbra Niven and Sue Melke unpersuasive and lacking in credibility. No judgment can rest entirely on hearsay evidence. (See Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.d.2d 77, 83, 626N.Y.S.2d 74). Discussion First Cause of Action, Breach of Contract: Screenwriters Agreement Intervenor Plaintiffs allege the parties entered into a screenwriters’ agreement and fulfilled their duties by “spending numerous hours writing, rewriting, and editing, the screenplay for the Picture.” (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 49-50). Defendant allegedly caused the breach of the screenwriter’s agreement when she “unilaterally decided to revise the screenplay and add elements that were not agreed upon by the parties.” (Id., 52). The necessary elements of breach of contract claim are (1) the existence of a contract, (2) plaintiffs performance under the contract, (3) defendant’s breach of the contract, and (4) resulting damages (See Second Source Funding, LLC v. Yellowstone Capital, LLC, 144 AD3d 445 (1st Dept. 2016); Harris v. Seward Park Housing Corp., 79 AD3d 425 (1st Dept. 2010). The screenwriter’s agreement submitted at the inquest fails to establish that a contract existed between the parties. The screenwriter’s agreement only credits Intervenor Plaintiff’s as screenwriters to the Picture and fails to identify Intervenor Plaintiffs’ performance under the contract. (NYSCEF Doc. No. 150). The agreement states, “the letter will serve as evidence of Writers Shares for the feature film Nesting Doll.” The agreement fails to identify which elements were agreed upon by the parties in writing the screenplay for the Picture. Intervenor Plaintiffs failed to establish that Defendant breached any obligations under the screenwriter’s agreement as necessary to sustain a judgment for its breach of contract claim. Accordingly, Intervenor Plaintiffs failed to meet their burden on the first cause of action. Second Cause of Action, Breach of Contract: Niven Actor Agreement Intervenor Plaintiffs allege that that Barbra Niven and Defendant “entered into an actor agreement for the Picture.” (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 55). Intervenor Plaintiffs failed to provide the Niven actor agreement at the inquest. Accordingly, Intervenor Plaintiffs failed to meet their burden on the second cause of action. Third Cause of Action, Breach of Contract: Producer Agreements Intervenor Plaintiffs allege that Niven and Melke each individually entered into producer agreements regarding the Picture. (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 59). Under the producer agreements, Intervenor Plaintiffs allege that Niven and Melke were required to “provide the industry standard producer services” and “fulfilled these duties.” (Id., 60). Defendant allegedly breached the producer agreements by “fundamentally and unilaterally changing the screenplay and the Picture to a product that was not agreed upon.” (Id., 61). At the inquest, Intervenor Plaintiffs submitted the Nesting Doll Deal Memo into evidence in support of this claim. (NYSCEF Doc. No. 152). Justice Borrok previously ruled that the Deal Memo is inapplicable to the damages section of this case because of its venue provision. (NYSCEF Doc. No. 148 P. 8 of 35 lines 10-15). The venue provision states, “any and all legal proceedings shall be exclusively subject to the State of California.” (Id., at 6). The Co-Production Agreement submitted at the inquest contains the same venue provision. (NYSCEF Doc. No. 154, 6). Accordingly, Intervenor Plaintiffs failed to meet their burden on the third cause of action. Fourth Cause of Action, Breach of Contract: Venture Operating Agreement Intervenor Plaintiffs allege that Niven and Melke entered into a venture operating agreement with Defendant. (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 65). Under the venture operating agreement, Niven and Melke were allegedly “required to manage the production and commercialization of the Picture.” (Id., 66). Niven and Melke allegedly “fulfilled the duties from the agreement prior to the agreement becoming non-operative due to the breach of Defendant.” (Id.). Defendant allegedly breached the venture operating agreement by “fundamentally and unilaterally changing the screenplay and the Picture, breaching her fiduciary duty owed to Niven and Melke, and fraudulently misrepresenting facts to investors and business partners to produce a product that was not agreed upon.” (Id., 67). Intervenor Plaintiffs failed to submit the venture operating agreement into evidence at the inquest. A Financing and Production Memorandum was submitted (NYSCEF Doc. No. 155); however, this document does not identify Intervenor Plaintiffs as signatories. The agreement only contains signatures for Revelation Studios, Nicole Conn, LLC, Weathervane Productions, Inc. and Trans Pacific Entertainment, Inc. Accordingly, Intervenor Plaintiffs failed to meet their burden on the fourth cause of action. Fifth Cause of Action, Conversion Intervenor Plaintiffs allege that Niven invested $25,000 towards the Picture. (Index No. 653434/ 2018, NYSCEF No. Doc. 1, 70). “The money was provided to the furtherance of various agreements between Niven and Defendant with the prior understanding that Defendant would produce the Picture as previously agreed by Niven.” (Id.) Conversion is established where “one who owns and has a right to possession of personal property proves that the property is in the unauthorized possession of another who has acted to exclude the rights of the owner.” (See Republic of Haiti v. Duvalier, 211 A.D.2d 379, 384, 626 N.Y.S.2d 472 [1st Dept. 1995]). Intervenor Plaintiffs failed to provide any agreement requiring a $25,000 investment or any invoices, receipts, cancelled checks, or other documents detailing this alleged transaction. Accordingly, Intervenor Plaintiffs failed to meet their burden on the fifth cause of action. Sixth Cause of Action, Breach of Fiduciary Duty Intervenor Plaintiffs allege that Defendant breached her fiduciary duty under the venture operating agreement. Since the venture operating agreement was not submitted into evidence at inquest, Intervenor Plaintiffs failed to meet their burden on the sixth cause of action. Conclusion After the inquest, Intervenor Plaintiffs failed to meet their burden of proof. The Court is unable to conclude that there was a valid enforceable contract between the parties for Intervenor Plaintiffs’ first, second third, fourth, fifth and sixth causes of action. The testimony provided by Barbra Niven and Sue Melke is unsupported by documentary evidence and is also uncredible and unpersuasive. As this Court has insufficient evidence to award any damages, after inquest, Intervenor Plaintiffs’ request for damages is denied. Accordingly, it is ORDERED that Intervenor Plaintiffs request for damages is denied. ORDERED that such service upon the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh). CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: May 4, 2022
