Question

Case 16.3

Kolodin v. Valenti

New York Supreme Court, Appellate Division, 115 A.D.3d 197, 979 N.Y.S.2d 587 (2014).

Can severe disagreement within a couple render a personal services contract impossible to perform?

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BACKGROUND AND FACTS Hilary Kolodin, a jazz singer, was personally involved with John Valenti, the sole shareholder and president of Jayarvee, Inc. Jayarvee manages artists, produces recordings, and owns and operates a jazz club in New York City. Kolodin contracted professionally with Jayarvee for recording and management services. After Kolodin and Valenti’s personal relationship deteriorated, Kolodin asked a New York state court to issue a temporary protection order against Valenti, alleging domestic abuse.

The stipulation specified that “no contact shall include no third party contact, excepting counsel.” Later, Kolodin filed a suit in a New York state court against Valenti, alleging breach of her Jayarvee contracts and seeking their rescission.

The court declared the contracts between Kolodin and Jayarvee terminated. Valenti appealed.

IN THE WORDS OF THE COURT …

ACOSTA, J.P. [Judge Presiding]

* * * *

Impossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract. [Emphasis added.]

In this case, performance of the contracts at issue has been rendered objectively impossible by law, since the stipulation destroyed the means of performance by precluding all contact between plaintiff and Valenti except by counsel.

Because of Valenti’s central role in the operation of Jayarvee, performance of the contracts would necessarily require his input and, consequently, a violation of the stipulation. The recording and management contracts are for personal services, so they require substantial and ongoing communication between plaintiff and Jayarvee. * * * Jayarvee is a relatively small organization, with approximately 40 employees, and Valenti concedes that he “oversees the employees in their day-to-day activities for the corporation.” Of course, employees of Valenti’s company are third parties who fall within the ambit [realm] of the stipulation’s “no contact” provision. For Jayarvee to perform the contracts—or, for that matter, for plaintiff to perform—the company’s employees would need to serve as conduits for communications to plaintiff that originated with Valenti. That result would clearly violate the stipulation’s prohibition of third-party contact.

Nor * * * was it foreseeable at the time of contracting that plaintiff and Valenti would enter into an agreement to bar contact between each other. Valenti argues that the breakdown of his relationship with plaintiff constituted the grounds of impossibility on which plaintiff relies, and that the breakdown was foreseeable. Rather, the stipulation is what makes performance of the contracts impossible. Absent the stipulation (and the temporary order of protection that preceded it), Jayarvee and plaintiff could have lawfully performed the contracts despite plaintiff and Valenti’s strained relationship * * *. Even if plaintiff could have foreseen that her relationship with Valenti would continue to deteriorate, it was not foreseeable that she and Valenti would enter into the stipulation.

Question A:   Do you agree or disagree with the Court's decision? Fully explain

Question B: Should Kolodin’s role in bringing about the “no contact” stipulation through her request for a protection order have rendered the doctrine of impossibility inapplicable? Fully explain

Answer 1

A. We agree with the Courts' decision, because of the Kolodin bringing ‘no contact’ stipulation prohibiting any third party except by counsel.

And in this case, the employees of Valenti’s company with whom the plaintiff has to work are third parties who fall within the ambit of the stipulations ‘no contract’ provision. Also, doing so will violate the stipulation’s prohibition of third-party contact.

Moreover, as far as the foreseeability is concerned. Even if plaintiff could have foreseen that her relationship with Valenti would continue to deteriorate, it was not foreseeable that she and Valenti would enter into the stipulation.

Therefore, the court’s decision on Doctrine of Impossibility on performance of the contract is absolutely valid and fair.