Ellington v. Sony/ATV Music Publ'g LLC

• Decision Date: 07 June 2011
• Docket Number: 5257 650233/09
• Parties: Paul M. Ellington, Plaintiff-Appellant, v. Sony/ATV Music Publishing LLC, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 04733

Paul M. Ellington, Plaintiff-Appellant, v. Sony/ATV Music Publishing LLC, et al., Defendants-Respondents.

5257 650233/09

Appellate Division of the Supreme Court of the State of New York

ENTERED: JUNE 7, 2011

Saxe, J.P., DeGrasse, Freedman, Abdus-Salaam, Manzanet-Daniels, JJ.

Scarola Malone & Zubatov LLP, New York (Alexander Zubatov of counsel), for appellant.

Pryor Cashman LLP, New York (Ilene S. Farkas of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 12, 2010, which granted defendants' motion to dismiss the first, second, sixth and eighth causes of action for repudiation, rescission, breach of fiduciary duty and unjust enrichment, respectively, unanimously affirmed, with costs.

Plaintiff failed to set forth a basis for terminating the parties' copyright royalties agreement. Viacom's sale of defendant Famous Music, a party to the agreement, to defendant Sony/ATV did not repudiate the agreement by assigning plaintiff's rights and rendering Famous incapable of performing its obligations. In any event, an assignment is permissible in the absence of an express prohibition (see Eisner Computer Solutions v Gluckstern, 293 AD2d 289 [2002]; Matter of Stralem, 303 AD2d 120, 122 [2003]). Plaintiff's conclusory characterization of the agreement as an unassignable personal services contract (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 482 [2006], cert dismissed 548 US 940 [2006]) was contradicted by the overall tenor of the agreement, which was cast as a sale of "assets" and did not provide for the management of plaintiff's artistic career or talents. The extraordinary remedy of rescission was unwarranted since, among other reasons, there was an adequate remedy at law (see Rudman v Cowles Communications, 30 NY2d 1, 13 [1972]).

The fiduciary breach claim was duplicative of the contract claims (see William Kaufman Org. v Graham & James, 269 AD2d 171, 173 [2000]), plaintiff's artificial separation of the royalty mis-routing allegation from the "negative adjustment" contract claims notwithstanding. The unjust enrichment claim was not viable in light of the undisputedly valid contract claims (seeEBC I, Inc. v Goldman, Sachs & Co.

, 5 NY3d 11, 23 [2005]).

We have considered plaintiff's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK