Jacoby v Lopez-Balboa 2024 NY Slip Op 34323(U) December 9, 2024 Supreme Court, New York County Docket Number: Index No. 161830/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 161830/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/09/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 161830/2023 ROBERT JACOBY, MOTION DATE 07/23/2024 Plaintiff, MOTION SEQ. NO. 003 -v- TAYLOR LOPEZ-BALBOA, ALAN E SASH DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Upon the foregoing documents, defendant/counter-plaintiff’s motion is granted.
Background
In September 2023, plaintiff Robert Jacoby II (“Plaintiff”) and defendant/counter-
plaintiff Taylor Lopez-Balboa (“Defendant”) entered into a settlement agreement (“Stipulation”)
to resolve pending matters in Family Court and Criminal court related to the alleged submission
of certain photographs of Lopez-Balboa to the internet. According to the Stipulation, Plaintiff
would deposit the sum of $50,000 into an escrow account. The Stipulation stated that the escrow
funds would be returned to Plaintiff “if, and only if, within 60 days [. . . ] he successfully
(directly or through a third-party vendor) causes the permanent deletion of the Images on any
and all online platforms.” The Stipulation went on to say that should Plaintiff “fail[] to fully and
timely comply with this paragraph, the Injunctive Amount shall be immediately released to
[Defendant] at escrowee’s sole and absolute discretion.”
It is not in dispute that despite the Plaintiff’s efforts, not all images of Defendant have
been removed from the internet. After the 60 days expired and a search turned up images of 161830/2023 JACOBY II, ROBERT vs. LOPEZ-BALBOA, TAYLOR ET AL Page 1 of 5 Motion No. 003
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Defendant on various sites, Defendant’s counsel informed Plaintiff that he was in breach of the
Stipulation and therefore the escrow funds would be accordingly turned over to her. Plaintiff
objected, stating that he had done best efforts to remove the images, an argument that Defendant
did not accept.
In December of 2023, Plaintiff filed the underlying suit, alleging that Defendant is liable
for breach of the Stipulation for failing to accept his best efforts to comply with the terms. He
requests that the escrow funds, along with attorneys’ fees and costs and disbursements, be turned
over to Plaintiff. Defendant opposed and pled two counterclaims, one for breach of the
Stipulation and one requesting a declaratory judgment that Defendant is entitled to the escrow
funds. Defendant brings the present motion for summary judgment on the counterclaims and to
dismiss the amended complaint.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
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Ultimately, for the reasons that follow, there are no triable issues of fact here. Plaintiff
argues that the Stipulation language is ambiguous, but the words “if, and only if, within 60 days
[. . .] he successfully (directly or through a third-party vendor) causes the permanent deletion of
the Images on any and all online platforms.” The images in question must have been
permanently deleted from all online platforms within 60 days, and there is no dispute that this
did not happen. Plaintiff breached the terms of the Stipulation when he failed, either through his
own efforts or those of a third-party vendor, to permanently remove the images from the internet.
Plaintiff also argues that the doctrine of impossibility operates here as a defense to this
breach, but the doctrine is inapplicable here. The doctrine of impossibility has a narrow
application, and it excuses performance “only when the destruction of the subject matter 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.” Kapur v. Stiefel, 264 A.D.2d 602,
606 (1st Dept. 1999)(emphasis in original); see also Matter of Reed Found., Inc. v. Franklin D.
Roosevelt Four Freedoms Park, LLC, 108 A.D.3d 1, 7 (1st Dept. 2013).
Here, the extreme difficulty involved in removing the images permanently from any and
all online platforms cannot be said to be an unforeseeable obstacle. The language of the
Stipulation explicitly addresses the use of third-party vendors to aid in removing the images.
Plaintiff’s own third-party vendor states in his affidavit that he informed Plaintiff before his
services were engaged that there was no certainty of permanently removing the images from all
online platforms. Therefore, a modern understanding of the nature of the Internet aside, a simple
consultation with the third-party vendors referred to in the Stipulation would have revealed that
permanent deletion cannot be guaranteed. By agreeing to pay Defendant $50,000 should the
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images in question not be permanently removed from the Internet within 60 days, Plaintiff must
now allow the escrow funds to be released to Defendant because the images have not been
permanently removed. The language of the Stipulation (which Plaintiff’s counsel were actively
involved in the drafting of) is clear, and the doctrine of impossibility does not excuse
performance under these facts. Accordingly, it is hereby
ADJUDGED that defendant/counter-plaintiff’s motion to dismiss the complaint is
granted; and it is further
ADJUDGED that defendant/counter-plaintiff’s motion for summary judgment on their
counterclaims is granted; and it is further
ADJUDGED and DECLARED that defendant/counter-plaintiff is entitled to the $50,000
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Jacoby v Lopez-Balboa 2024 NY Slip Op 34323(U) December 9, 2024 Supreme Court, New York County Docket Number: Index No. 161830/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 161830/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/09/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 161830/2023 ROBERT JACOBY, MOTION DATE 07/23/2024 Plaintiff, MOTION SEQ. NO. 003 -v- TAYLOR LOPEZ-BALBOA, ALAN E SASH DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Upon the foregoing documents, defendant/counter-plaintiff’s motion is granted.
Background
In September 2023, plaintiff Robert Jacoby II (“Plaintiff”) and defendant/counter-
plaintiff Taylor Lopez-Balboa (“Defendant”) entered into a settlement agreement (“Stipulation”)
to resolve pending matters in Family Court and Criminal court related to the alleged submission
of certain photographs of Lopez-Balboa to the internet. According to the Stipulation, Plaintiff
would deposit the sum of $50,000 into an escrow account. The Stipulation stated that the escrow
funds would be returned to Plaintiff “if, and only if, within 60 days [. . . ] he successfully
(directly or through a third-party vendor) causes the permanent deletion of the Images on any
and all online platforms.” The Stipulation went on to say that should Plaintiff “fail[] to fully and
timely comply with this paragraph, the Injunctive Amount shall be immediately released to
[Defendant] at escrowee’s sole and absolute discretion.”
It is not in dispute that despite the Plaintiff’s efforts, not all images of Defendant have
been removed from the internet. After the 60 days expired and a search turned up images of 161830/2023 JACOBY II, ROBERT vs. LOPEZ-BALBOA, TAYLOR ET AL Page 1 of 5 Motion No. 003
1 of 5 [* 1] INDEX NO. 161830/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/09/2024
Defendant on various sites, Defendant’s counsel informed Plaintiff that he was in breach of the
Stipulation and therefore the escrow funds would be accordingly turned over to her. Plaintiff
objected, stating that he had done best efforts to remove the images, an argument that Defendant
did not accept.
In December of 2023, Plaintiff filed the underlying suit, alleging that Defendant is liable
for breach of the Stipulation for failing to accept his best efforts to comply with the terms. He
requests that the escrow funds, along with attorneys’ fees and costs and disbursements, be turned
over to Plaintiff. Defendant opposed and pled two counterclaims, one for breach of the
Stipulation and one requesting a declaratory judgment that Defendant is entitled to the escrow
funds. Defendant brings the present motion for summary judgment on the counterclaims and to
dismiss the amended complaint.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
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Ultimately, for the reasons that follow, there are no triable issues of fact here. Plaintiff
argues that the Stipulation language is ambiguous, but the words “if, and only if, within 60 days
[. . .] he successfully (directly or through a third-party vendor) causes the permanent deletion of
the Images on any and all online platforms.” The images in question must have been
permanently deleted from all online platforms within 60 days, and there is no dispute that this
did not happen. Plaintiff breached the terms of the Stipulation when he failed, either through his
own efforts or those of a third-party vendor, to permanently remove the images from the internet.
Plaintiff also argues that the doctrine of impossibility operates here as a defense to this
breach, but the doctrine is inapplicable here. The doctrine of impossibility has a narrow
application, and it excuses performance “only when the destruction of the subject matter 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.” Kapur v. Stiefel, 264 A.D.2d 602,
606 (1st Dept. 1999)(emphasis in original); see also Matter of Reed Found., Inc. v. Franklin D.
Roosevelt Four Freedoms Park, LLC, 108 A.D.3d 1, 7 (1st Dept. 2013).
Here, the extreme difficulty involved in removing the images permanently from any and
all online platforms cannot be said to be an unforeseeable obstacle. The language of the
Stipulation explicitly addresses the use of third-party vendors to aid in removing the images.
Plaintiff’s own third-party vendor states in his affidavit that he informed Plaintiff before his
services were engaged that there was no certainty of permanently removing the images from all
online platforms. Therefore, a modern understanding of the nature of the Internet aside, a simple
consultation with the third-party vendors referred to in the Stipulation would have revealed that
permanent deletion cannot be guaranteed. By agreeing to pay Defendant $50,000 should the
161830/2023 JACOBY II, ROBERT vs. LOPEZ-BALBOA, TAYLOR ET AL Page 3 of 5 Motion No. 003
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images in question not be permanently removed from the Internet within 60 days, Plaintiff must
now allow the escrow funds to be released to Defendant because the images have not been
permanently removed. The language of the Stipulation (which Plaintiff’s counsel were actively
involved in the drafting of) is clear, and the doctrine of impossibility does not excuse
performance under these facts. Accordingly, it is hereby
ADJUDGED that defendant/counter-plaintiff’s motion to dismiss the complaint is
granted; and it is further
ADJUDGED that defendant/counter-plaintiff’s motion for summary judgment on their
counterclaims is granted; and it is further
ADJUDGED and DECLARED that defendant/counter-plaintiff is entitled to the $50,000
held in escrow pursuant to the Settlement Agreement between the parties; and it is further
ORDERED that the escrow agent in charge of the JPMorgan Chase Bank, NA turn over
the funds in account number 936039630 to defendant/counter-plaintiff Taylor Lopez-Balboa in
accordance with the Settlement Agreement between the parties forthwith; and it is further
ORDERED that an assessment of damages against plaintiff for defendant/counter-
plaintiff’s attorneys’ fees, pursuant to the agreement, is directed; and it is further
ORDERED that a copy of this order with notice of entry be served by the movant upon the
Clerk of the General Clerk’s Office, who is directed, upon the filing of a note of issue and a
certificate of readiness and the payment of proper fees, if any, to place this action on the
appropriate trial calendar for the assessment hereinabove directed; and it is further
ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made
in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk
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Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s
website).
12/9/2024 DATE LYLE E. FRANK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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