Motion for Entry of Default in Chris Grant Brohawk Films v. Digital Seven, Llc, Brendan Cochrane| Trellis.Law

On November 14, 2019 a Order was filed involving a dispute between Chris Grant Brohawk Films, and Brendan Cochrane, Digital Seven, Llc, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

CHRIS GRANT BROHAWK FILMS, :
Plaintiff, :
: INDEX NO. 656790/2019
v. :
:
DIGITAL SEVEN, LLC and BRENDAN :
COCHRANE, :
:
Defendants. :

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF CHRIS GRANT
BROHAWK FILMS’ RENEWED MOTION FOR DEFAULT JUDGMENT AND
SUMMARY JUDGMENT OR JUDGMENT ON THE PLEADINGS AGAINST
DEFENDANTS

FOX ROTHSCHILD LLP
101 Park Avenue, 17th Floor
New York, New York 10178
(212) 878-7986
(212) 692-0940 (fax)
Attorneys for plaintiff Chris Grant Brohawk
Films

On the Brief:

Daniel M. Rosales, Esq.

107035370.v3

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2

A. PARTIES AND EMPLOYMENT. ......................................................................... 2

B. THE PROJECT. ...................................................................................................... 3

C. THE DEFENDANTS’ COMPLETE FAILURE TO PERFORM. ......................... 3

LEGAL ARGUMENT .................................................................................................................... 4

POINT I THIS MOTION SATISFIES THE DEFAULT JUDGMENT
STANDARD ............................................................................................... 4

POINT II PLAINTIFF IS ENTITLED TO DEFAULT JUDGMENT
AGAINST DIGITAL SEVEN ON ALL FIVE COUNTS IN THE
COMPLAINT ............................................................................................. 5

POINT III PLAINTIFF IS ENTITLED TO JUDGMENT ON THE
PLEADINGS AGAINST DEFENDANT COCHRANE ON COUNTS
II, IV, AND V IN THE COMPLAINT ASSERTED AGAINST
DEFENDANT COCHRANE ..................................................................... 6

CONCLUSION ............................................................................................................................. 11

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TABLE OF AUTHORITIES

Page(s)

Cases

Carter v Castle Elec. Contr. Co.
26 AD2d 83 (2nd Dep’t 1966) .....................................................................................6, 7, 9, 10

Dalton v. Educ. Testing Serv.,
663 N.E.2d 289 (N.Y. 1995) ................................................................................................9, 10

Govt. Employees Ins. Co. v Sheerin,
65 AD2d 10 (2nd Dep’t 1978) .....................................................................................6, 7, 9, 10

Michael Reilly Design, Inc. v. Houraney,
835 N.Y.S.2d 640 (2nd Dep’t 2007) ......................................................................................4, 5

Reif v. Nagy,
106 N.Y.S.3d 5 (1st Dep’t 2019) ...............................................................................................8

Rokina Optical Co., Inc. v. Camera King, Inc.,
469 N.E.2d 518 (N.Y. 1984) ......................................................................................................4

Schroeder v. Pinterest Inc.,
17 N.Y.S.3d 678 (1st Dep’t 2015) .............................................................................................7

Seidler v. Knopf,
61 N.Y.S.3d 94 (2nd Dep’t 2017) ..........................................................................................4, 5

Other Authorities

CPLR 320.........................................................................................................................................5

CPLR 3018.........................................................................................................................6, 7, 9, 10

CPLR § 321(a) .............................................................................................................................4, 5

CPLR § 3212..................................................................................................................................11

CPLR § 3212(a) ...............................................................................................................................4

CPLR § 3212(b) ...............................................................................................................................4

CPLR § 3212(e) ...............................................................................................................................4

CPLR § 3215(a) .....................................................................................................................3, 5, 10

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PRELIMINARY STATEMENT

Plaintiff Chris Grant Brohawk Films (“Grant”), by its attorneys, Fox Rothschild LLP,

submits this Memorandum of Law in support of its renewed motion for default judgment against

defendant Digital Seven, LLC (“Digital Seven”) and its motion for summary judgment or

judgment on the pleadings against defendant Brendan Cochrane (“Cochrane”).

After Plaintiff Grant filed a Complaint, Cochrane appeared pro se and filed an Answer. As

a limited liability company, Digital Seven may only be represented by an attorney admitted to

practice before this Court. Therefore, Digital Seven is in default and has not responded to the

allegations contained in the Complaint. Plaintiff Grant is entitled to Default Judgment against

Digital Seven.

Pro se Defendant Cochrane has failed to deny any of the material allegations contained in

Plaintiff Grant’s Complaint. Therefore, the allegations in the Complaint are deemed admitted.

Because Defendant Cochrane has not disputed any of the material allegations contained in the

Complaint, there is no genuine dispute of material fact, and Plaintiff Grant is entitled to Judgment

on the Pleadings or Summary Judgment against Cochrane.

Plaintiff submitted its Motion for Default and Summary Judgment or Judgment on the

Pleadings and all supporting motion papers against Defendants on February 12, 2020. Doc. Nos.

9-14. Counsel for Defendants entered their appearance following the appearance date in Plaintiff’s

Motion for Default Judgment and Summary Judgment or Judgment on the Pleadings. Doc. No.

15. The Court denied Plaintiff’s Motion for Default and Summary Judgment or Judgment on the

Pleadings without prejudice and granted Plaintiff automatic leave to amend to include an

affidavit/verification from Plaintiff. Doc. No. 17.

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Counsel for Plaintiff contacted counsel for Defendants and provided a settlement offer.

Counsel for Defendant provided no response. Further, despite entering an appearance on behalf

of its clients, even before the global COVID-19 pandemic, counsel for Defendant took no action

to remedy Defendant Digital Seven’s default, or address the inadequacies in the pro se Answer

filed by Defendant Cochrane. Based on the grounds set forth herein and the accompanying

affirmations and evidence, default judgment is proper against Defendant Digital Seven, and

Summary Judgment or Judgment on the Pleadings is proper against Defendant Cochrane.

FACTUAL AND PROCEDURAL BACKGROUND

A. PARTIES AND EMPLOYMENT.

Plaintiff is a company with an address at 50 West 72nd Street, New York, New York 10023.

Compl., ¶ 1. Defendant Cochrane is an adult individual residing at 178 East 117th Street Apt 7B,

New York, New York 10034. Compl., ¶ 2. Defendant Digital Seven is a New York Limited

Liability Company with, upon information and belief, an address of 340 Madison Avenue, 19th

Floor, New York, New York, 10171 and 50 West 72nd Street, New York, New York, 10023.

Compl., ¶ 3. On or about August 2019, Plaintiff entered into negotiations with Defendants for the

production of a short film currently entitled “Never Can Say Goodbye” (the “Project”). Compl. ¶

6. During the course of negotiations, Defendant Cochrane presented himself to have extensive

experience producing a wide variety of films for various clients, and specifically, considerable

experience working on productions with small budgets. Compl., ¶ 7. Defendant Cochrane

presented his wholly owned company Digital as a full-service production company catering to all

budgets and clients. Compl., ¶ 8. See also Ex. A to Compl. On August 7, 2019, Plaintiff met

Defendant Cochrane and explained his idea for the Project and the specific needs and small budget,

which would be required for successful production of the Project. Compl., ¶ 9. On or about August

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14, 2019, Plaintiff and Digital entered into an agreement (the “Agreement”) under which Digital

agreed to provide certain services in connection with the Project. Compl. ¶ 11. See also Ex. B to

Compl. Pursuant to the terms of the Agreement, on or about August 19, 2019, Plaintiff transferred

an amount of Twenty Thousand Dollars ($20,000) to Defendant Cochrane to be used solely to fund

the production of the Project (“Project Funds”). Compl., ¶ 12. The invoice provided to Plaintiff

by Defendants for the Project Funds describes the amount as a “Production Budget Deposit.”

Compl., ¶ 12. See also Ex. C to Compl.

B. THE PROJECT.

Throughout the pre-production period of the Project, Defendants repeatedly refused to

disclose any accountings or budget allocations regarding the Project Funds. Compl., ¶ 13.

Defendants further failed to provide production services for the Project as contemplated by the

Agreement. Compl., ¶ 14. As of September 27, 2019 Defendants failed to provide any documents

setting forth the actual budget for the Project pursuant to which the Project Funds were to be

allocated by Defendants. Compl., ¶ 15. Following a phone conversation with Plaintiff, Defendants

provided a one-page budget that was wholly inadequate pursuant to customary industry standards,

and contained inaccuracies which included unauthorized and improper amounts, including

increased producer fees, equipment rentals, insurance charges and locations that were impossible

to shoot. See Ex. D to Compl.

C. THE DEFENDANTS’ COMPLETE FAILURE TO PERFORM.

On September 28, 2019, Plaintiff discovered that, contrary to Defendants’ representations

prior to entering into the Agreement, Defendants had a troubling record both personally and in

connection with past productions. Compl., ¶ 16. Among other things, Plaintiff discovered that

Defendant Digital is a one-person “operation” and was not the full service company with an

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experienced production team as represented to Plaintiff prior to entering into the Agreement.

Compl., ¶ 17. On October 8, 2019, Plaintiff suggested to Defendants that the Defendants’ budget

for the Project be amended in order to re-allocate funds for the production of the Project. Compl.,

¶ 18. Rather than negotiate in good faith, and in direct response to Plaintiff’s request, Defendant

Cochrane demanded an additional $3,000 and stated that unless his demands were met, Defendant

Cochrane would not perform, and would not refund the $20,000 already in his possession. Compl.,

¶¶ 20-21. Defendant Cochrane specifically stated “We need to pull the plug and you will forfeit

your funds due to inability to comprehend we cannot accomplish the production you wish to

undertake . . . . ” Compl., ¶ 21. Defendants have not returned the funds or performed any services

under the Agreement. Compl., ¶ 22.

LEGAL ARGUMENT

POINT I

THIS MOTION SATISFIES THE DEFAULT JUDGMENT STANDARD

Pursuant to CPLR § 3215(a), “when a defendant has failed to appear, plead or proceed . . .

the plaintiff may seek a default judgment against him.” A defendant “whose answer is stricken

as a result of a default admits all traversable allegations in the complaint, including the basic

allegation of liability, but does not admit the plaintiff’s conclusion as to damages.” Rokina Optical

Co., Inc. v. Camera King, Inc., 469 N.E.2d 518, 520 (N.Y. 1984). However, if “the plaintiff’s

claim is for a sum certain or for a sum which can by computation be made certain, application may

be made to the clerk within one year after the default.”

Pursuant to CPLR § 321(a), a corporation or association may defend a civil action only

through an attorney. See Michael Reilly Design, Inc. v. Houraney, 835 N.Y.S.2d 640, 641 (2nd

Dep’t 2007) (“An LLC, like a corporation or voluntary association, is created to shield its members

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from liability and once formed is a legal entity distinct from its members. Accordingly, like a

corporation or a voluntary association, the LLC may only be represented by an attorney and not

by one of its members who is not an attorney admitted to practice in the State of New York.”)

(citation omitted). See also Seidler v. Knopf, 61 N.Y.S.3d 94, 96 (2nd Dep’t 2017) (affirming

default judgment entered against LLC where individuals controlling LLC purported to appear pro

se and answer on behalf of the LLC). Defendant Digital Seven is a New York Limited Liability

Company, and has not retained an attorney to represent its legal interests in this proceeding.

Defendant Digital Seven has failed to respond to Plaintiff’s Complaint on or before the date

required. Therefore, default judgment against Defendant Digital Seven is appropriate.

Pursuant to CPLR § 3212(a), any party may move for summary judgment in any action

after issue has been joined. Summary judgment is appropriate where, as here, “upon all the papers

and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court

as a matter of law in directing judgment in favor of any party.” CPLR § 3212(b). The Court may

also grant summary judgment as to one or more causes of action, or part thereof. CPLR § 3212(e).

Cochrane’s Answer does not deny any of the material allegations of the substantive elements of

Plaintiff’s causes of action, so summary judgment against Cochrane is appropriate.

Therefore, Plaintiff is entitled to judgment by default against Defendant Digital Seven and

Plaintiff is entitled to judgment on the pleadings against Defendant Brendan Cochrane.

POINT II

PLAINTIFF IS ENTITLED TO DEFAULT JUDGMENT AGAINST DIGITAL SEVEN
ON ALL FIVE COUNTS IN THE COMPLAINT

Plaintiff filed its Complaint against Defendant Digital Seven on November 11, 2019. Doc.

No. 1. Defendant Digital Seven’s first responsive pleading was due on or before December 17,

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2019. CPLR 320. Defendant Cochrane appeared pro se on his own behalf and purportedly on

behalf of Digital Seven and filed an Answer on December 17, 2019. Doc. No. 2.

Under established New York law, a corporation or association may defend a civil action

only through an attorney. CPLR § 321(a). This rule has been extended to apply equally to Limited

Liability Companies. Michael Reilly Design, Inc., 835 N.Y.S.2d at 641; Seidler, 61 N.Y.S.3d at

96. Defendant Cochrane is not an attorney licensed to practice law in the state of New York.

Therefore, Defendant Cochrane may not represent Digital Seven in this action. Because Defendant

Cochrane may not represent Digital Seven in this action, Digital Seven has failed to enter an

appearance and file a pleading in response to Plaintiff’s Complaint. Therefore, pursuant to CPLR

§ 3215(a), Defendant Digital Seven is in default and Plaintiff is entitled to default judgment against

Digital Seven.

Plaintiff requests that this Court enter default judgment against Digital Seven. Plaintiff’s

claims for Breach of Contract, Quantum Meruit/Unjust Enrichment, and Breach of the Duty of

Good Faith and Fair Dealing are for the sum certain of $20,000 that Plaintiff paid to Defendant

Digital Seven. Plaintiff requests the Court or the Court Clerk enter judgment in this amount against

Defendant Digital Seven on Plaintiff’s First Two Counts by default.

Plaintiff requests that the Court enter default judgment as to liability against Digital Seven

for Plaintiff’s Third and Fourth Counts, for Fraudulent Inducement, and Conversion, respectively.

Plaintiff requests the Court order an inquest into the issue of damages that Plaintiff may be entitled

to recover in addition to the $20,000 Plaintiff is entitled to on its other claims by default.

POINT III

PLAINTIFF IS ENTITLED TO JUDGMENT ON THE PLEADINGS AGAINST
DEFENDANT COCHRANE ON COUNTS II, IV, AND V IN THE COMPLAINT
ASSERTED AGAINST DEFENDANT COCHRANE
6

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Defendant Cochrane appeared pro se and filed an Answer to Plaintiff’s Complaint on

December 17, 2019. Doc. No. 2. Defendant’s Answer fails to deny any of Plaintiff’s material

allegations in the Complaint. See Doc. No. 2. It is well-settled in New York that a failure to deny

allegations in a complaint, the defendants admit its truth. CPLR 3018; Carter v Castle Elec. Contr.

Co. 26 AD2d 83, 84 (2nd Dep’t 1966); see also Govt. Employees Ins. Co. v Sheerin, 65 AD2d 10,

11 (2nd Dep’t 1978) (ruling that failure to deny allegations or state that defendant lacks knowledge

or information sufficient to for a belief as to the allegations means “defendant . . . is deemed to

have admitted the foregoing allegations . . . .”). A cursory comparison between the allegations in

Plaintiff’s Complaint against Defendant Cochrane’s Answer reveals that Plaintiff is entitled to

judgment on the pleadings, or summary judgment, as Defendant has not placed any material issue

in dispute.1 As a general matter, Defendant’s Answer reads more like attempts at Counterclaims

rather than denials of the material facts in the Complaint. See Doc. No. 2.

A. Quantum Meruit/Unjust Enrichment.

To state a claim for unjust enrichment, a plaintiff must allege that: (1) the defendant was

enriched, (2) a plaintiff’s expense, and (3) that it is against equity and good conscience to permit

the defendant to retain what is sought to be recovered. Schroeder v. Pinterest Inc., 17 N.Y.S.3d

678, 690 (1st Dep’t 2015).

The Complaint alleges that Plaintiff has performed its obligations and provided Cochrane

with the Project Funds. Compl., ¶ 29. The Complaint further alleges that Cochrane has obtained

and retained a valuable benefit as a result in the form of the Project Funds. Id., ¶ 30. The

1
For the same reasons that Plaintiff is entitled to Judgment on the Pleadings or Summary Judgment against
Defendant Cochrane, assuming arguendo that the Court allows Cochrane to represent Digital Seven – which it should
not – Plaintiff is entitled to Judgment on the Pleadings or Summary Judgment against Defendant Digital Seven for the
reasons set forth herein.

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Complaint further alleges that, despite repeated demands, Cochrane failed and refused to pay

Plaintiff the amount of Twenty-Thousand Dollars incurred by Plaintiff. Id., ¶ 31. The Complaint

further alleges that Cochrane’s continued failure to pay Plaintiff is unlawful and without

justification. Id., ¶ 32. These allegations are sufficient to state a claim for unjust enrichment

against Cochrane. Pinterest Inc., 17 N.Y.S.3d at 690.

The Answer does not deny any of these material allegations. In fact, the Answer admits

that Cochrane retained the Project Funds but did not ultimately deliver the services called for in

the Agreement, and does not dispute the inconsistencies and subpar budget that Cochrane produced

as alleged in the Complaint. See Doc. No. 2., ¶¶ 9-15.2 Therefore, all of the allegations in the

Complaint stating a claim for unjust enrichment are deemed admitted, and Plaintiff is entitled to

summary judgment against Cochrane for unjust enrichment. CPLR 3018; Carter, 26 AD2d at 84;

Sheerin, 65 AD2d at 11.

B. Conversion.

A conversion takes place when someone, intentionally and without authority, assumes or

exercises control over personal property belonging to someone else, interfering with that person’s

right of possession. Reif v. Nagy, 106 N.Y.S.3d 5, 15 (1st Dep’t 2019). The tort of conversion

under New York law requires a plaintiff to plead: (1) plaintiff’s possessory right or interest in the

property, and (2) defendant’s dominion over the property or interference with it, in derogation of

plaintiff’s rights. Id.

2
The pro se Answer contains 23 paragraphs that do not directly tie to the 51 paragraphs in the Complaint,
and it is difficult to determine which paragraphs of the Answer are intended to address the Complaint.In fact, at times
paragraphs in the Answer have no bearing on allegations in the Complaint. Citations to the Answer are therefore
given liberal construction, but even under a lenient standard, they fail to deny the material allegations of the Complaint.

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The Complaint alleges that Cochrane wrongfully exercised dominion over the property of

Plaintiff, without consent, at the expense of, and to the detriment of, Plaintiff by virtue of the

Project Funds that Cochrane has, upon information and belief, absconded and/or utilized for

improper and unauthorized purposes. Compl., ¶ 42. The Complaint alleges that Cochrane

improperly exercised dominion and control over the Plaintiff’s funds by, among other things,

directing the funds to be utilized for unauthorized purposes and not in connection with the

production of the project. Id., ¶ 43. The Complaint next alleges that as a direct and proximate

cause of the conversion of Plaintiff’s funds by Cochrane, Plaintiff sustained damage in the amount

of no less than twenty thousand dollars. Id., ¶ 44. Finally, the Complaint alleges that Cochrane is

liable to Plaintiff for the wrongful conversion of these funds. Id., ¶ 45. This sufficiently alleges a

cause of action for conversion. Nagy, 106 N.Y.S.3d at 15.

The Answer does not deny that Cochrane retained the funds. See Doc. No. 6. In fact, the

Answer admits that Cochrane has retained the funds and refused to return them to Plaintiff. Id., ¶

18. Rather than negotiate in good faith, Cochrane amended the draft agreement to allow himself

to freely charge overages without any disclosure of appropriations within the budget, contrary to

industry standard and the Agreement. See Ex. N to Answer. Cochrane then unilaterally executed

the revised agreement prior to discussing any changes with Plaintiff, and Plaintiff refused to sign.

See id.; Ex. M to Answer. In subsequent communications, Plaintiff refused to sign the revised

agreement. Id. Cochrane ultimately agreed to Plaintiff’s changes, but did not sign the amended

agreement. Rather, Cochrane unilaterally declared, and acted as though, his unilaterally signed

revised agreement was the operative contract between the parties. The Answer does not deny the

allegation that Cochrane improperly exercised dominion and control over the Plaintiff’s funds by,

among other things, directing the funds to be utilized for unauthorized purposes and not in

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connection with the production of the project. See id. The Answer similarly does not deny that

damages sustained by Plaintiff were a direct and proximate cause of Cochrane, nor that Cochrane

is liable to Plaintiff for the wrongful conversion of these funds. See id. Therefore, these allegations

are deemed admitted, and Plaintiff is entitled to judgment against Cochrane for conversion. CPLR

3018; Carter, 26 AD2d at 84; Sheerin, 65 AD2d at 11.

C. Breach of Duty of Good Faith and Fair Dealing.

In New York, every contract contains an implied covenant of good faith and fair dealing.

Dalton v. Educ. Testing Serv., 663 N.E.2d 289, 291 (N.Y. 1995). Where a contract contemplates

the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in

exercising that discretion. Id.

Plaintiff alleges the existence of a legally enforceable contract. Compl., ¶¶ 23-27. Plaintiff

alleges that Cochrane owed Plaintiff an implied duty of good faith and fair dealing. Id., ¶ 47.

Plaintiff alleges that the implied covenant of good faith and fair dealing provides that each party

to a contractual relationship will not do anything that will deprive the other parties of the benefits

of their bargain, and a breach of this duty gives rise to an action for damages. Id., ¶ 48. Plaintiff

alleges that Cochrane precluded Plaintiff from realizing the full benefit of its bargain by, inter alia,

providing false and misleading information and absconding with the Project Funds earmarked to

fund the production. Id., ¶ 49. Plaintiff alleges Cochrane did so under circumstances evidencing

their bad faith. Id., ¶ 50. Finally, the Complaint alleges that as a result of Cochrane’s breach of

the implied covenant of good faith and fair dealing, Plaintiff has suffered irreparable harm and

damages. Id., ¶ 51. These allegations sufficiently state a claim for breach of the duty of good faith

and fair dealing. Educ. Testing Serv., 663 N.E.2d at 291.

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In a rare exception, the Answer does specifically address paragraph 47 of the Complaint.

See Doc. No. 2, ¶ 23. However, the Answer confuses pleading in the alternative, and does not

deny the allegations of paragraph 47 of the Complaint. Id. Despite addressing the first element of

the breach of duty of good faith and fair dealing claim in paragraph 47 of the Complaint (and

failing to deny it), the Answer does not address—much less deny—any of the other allegations of

the Complaint that allege a breach of the duty of good faith and fair dealing. Id. Because a failure

to deny these allegations deems them admitted, Plaintiff is entitled to judgment against Cochrane

for breach of the duty of good faith and fair dealing. CPLR 3018; Carter, 26 AD2d at 84; Sheerin,

65 AD2d at 11.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court enter default

Judgment against Defendant Digital Seven pursuant to CPLR § 3215(a) and that this Court enter

Judgment on the Pleadings or Summary Judgment against Defendant Cochrane pursuant to

CPLR § 3212.

Dated: New York, New York Respectfully submitted,
May 4, 2020
FOX ROTHSCHILD LLP

By: /s/ Daniel M. Rosales
Daniel M. Rosales, Esq.
101 Park Avenue, 17th Floor
New York, New York 10178
(212) 878-7986
(212) 692-0940 (facsimile)
Attorney for plaintiff Chris Grant
Brohawk Films

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Order: Chris Grant Brohawk Films v. Digital Seven, Llc, Brendan Cochrane

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