New York State Court of Claims

New York State Court of Claims

BECK v. THE CITY UNIVERSITY OF NEW YORK, #2003-016-088, Claim No. 107557, Motion No. M-66925


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Melvin J. Zalel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 5, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant Peter Dean Beck's motion for summary judgment on his claim against the City University of New York ("CUNY") or, alternatively, for an order dismissing defendant's answer.[1] The claim arises from a contract under which Mr. Beck was to design the stage set and lighting for an operatic production of Moliere's Tartuffe to be presented at Hunter College's Kaye Playhouse. On May 23, 2001, claimant and CUNY entered into a written agreement under which claimant was to "design a multi-use unit set and the lighting for the opera entitled: Tartuffe (by Kirke Mechem) to be presented by The Kaye . . ."[2] In a section entitled "Compensation," it was agreed that claimant would be paid:
the all-inclusive sum of $10,000.00, payable as follows:

$3,333 - shall be paid upon the signing of this agreement

$3,333 - shall be paid upon approval of designs
$3,334 - shall be paid not later than the "half-hour" show call of the first paid public performance

In a section entitled "Pension and Welfare," it was agreed that:

. . . The Kaye will make a contribution of $1,500.00 which is equivalent to 15% of the gross wages by separate check to the United Scenic Artists Pension and Welfare Fund to be credited to the account of [claimant].

A section entitled "Abandoned or Delayed Production," provides in relevant part that:

. . . If the production is abandoned and [claimant] has not submitted work for approval, the fee adjustment shall be negotiated in good faith, but at no less than 50% of the fee listed in this agreement.

Such provision makes no explicit reference to the treatment of the $1,500 pension payment. See exhibit A to claimant's moving papers.

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The following facts are undisputed: (1) upon the signing of the agreement, claimant was paid $3,333; (2) on July 3, 2001, prior to claimant's submission of designs, he was advised by letter that the production of Tartuffe was being abandoned; and (3) claimant has been paid no sums beyond the initial $3,333 payment.

Claimant argues that pursuant to the agreement, he is entitled to no less than 50% of the total $10,000 fee (or $5,000) plus the $1,500 pension payment, for a total of $6,500. Under claimant's analysis, as he has already been paid $3,333, he is entitled to additional payment in the minimum amount of $3,167.

Defendant argues that the phrase "no less than 50% of the fee listed in the agreement" does not refer to the entire $10,000, but rather to the fee due at the time of abandonment. Defendant thus takes the position that since claimant had not submitted any designs at the time the project was abandoned, no fee was owing and he is thus entitled to no additional payments. Defendant also takes the position that it does not owe claimant the $1,500 pension payment, arguing that such payment is "only due and owing at the rate of 15% of the gross wages. Thus, if no work is performed no wages are due and owing." See ¶¶5 and 6 of the September 11, 2003 affirmation of Ellen Mendelson.
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I find that the terms of the above-detailed agreement provide that claimant is entitled to no less than one-half of the total $10,000 fee, or $5,000 (of which he has already received $3,333). A trial must be conducted to determine whether claimant is owed more than such 50%, and to determine the treatment of the $1,500 pension provision.

For the foregoing reasons, IT IS ORDERED that motion no. M-66925 be allowed to the extent that claimant is granted summary judgment on liability and otherwise be denied.

November 5, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following submissions were reviewed on this motion: claimant's notice of motion with the affidavit of Peter Dean Beck, the affidavit of Joseph Loschiavo and exhibits A-D; defendant's affirmation in opposition with the affidavit of James Nomikos and exhibit 1; and claimant's reply affidavit with exhibits A-C.
  2. [2]The agreement is on the letterhead of and signed on behalf of "the Kaye Playhouse at Hunter College." As it is undisputed that CUNY is the appropriate defendant in this case, for ease of reference, the Court will refer to the parties to the agreement as CUNY and claimant.