Sirico v. F.G.G. Productions Inc.

• Decision Date: 04 March 2010
• Citation: 2010 N.Y. Slip Op. 01733,896 N.Y.S.2d 61,71 A.D.3d 429
• Parties: Phyllis J. SIRICO, et al., Plaintiffs–Appellants,v.F.G.G. PRODUCTIONS, INC., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 429

896 N.Y.S.2d 61

2010 N.Y. Slip Op. 01733

Phyllis J. SIRICO, et al., Plaintiffs–Appellants,

v.F.G.G. PRODUCTIONS, INC., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 4, 2010.

Baker & Hostetler LLP, New York (Oren J. Warshavsky of counsel), for appellants.Christopher R. Whent, New York, for respondent.TOM, J.P., SAXE, NARDELLI, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered August 22, 2008, which, to the extent appealable, denied plaintiffs' motion to renew a prior order granting defendant partial summary judgment, unanimously reversed, on the law, without costs, and the motion granted. Order, same court (Karla Moskowitz, J.), entered January 4, 2008, which, to the extent appealed from, granted defendant's motion for summary dismissal of the complaint, unanimously modified, on the law, without costs, the motion denied with respect to the first and sixth causes of action, those claims reinstated, and otherwise affirmed.

This action concerns music recordings from the 1960s featuring performances by the vocal group known as the Angels, including their well-known 1963 recording, “My Boyfriend's Back,” which over the years has sold more than a million units in various formats. Defendant (FGG) produced the recordings. Plaintiffs commenced this action in 2005, alleging in the verified complaint and bill of particulars that in or about 1960, FGG entered into a written recording contract with the Angels, then composed of plaintiff Phyllis Allbut, suing here as Phyllis Sirico, her sister Barbara Allbut, and lead singer Linda Jansen.¹ In exchange for Sirico's performances on recordings that FGG produced and owned, plaintiffs allege that FGG agreed to pay her artist's royalties for sales of phonograph records and other products containing the recordings, and a share of FGG's income from licensing the use of the recordings by third parties. Plaintiffs state that they do not have a copy of the contract and do not know the specific method for calculating royalties.

In 1962, plaintiffs further allege, Jansen left the group, and plaintiff Peggy Davison, suing here as Peggy Davidson, replaced her as lead singer. Plaintiffs allege that Davidson never entered into a written or oral contract with FGG, but FGG's representatives told her she would be paid royalties, and provided her with a contract to that effect which was never executed.

Starting in 1963, plaintiffs performed for FGG as members of the Angels on “My Boyfriend's Back” and several other recordings. Their central allegation is that FGG has not paid them their full share of royalties and licensing income over the past 40–odd years. Davidson also claims that FGG exploited her image, voice and name to market the recordings without her consent.

The verified complaint purports to state the following causes of action: by Sirico, for breach of written contract; by Davidson, for breach of “ implied contract”; and by Sirico and Davidson, for the equitable claims of unjust enrichment, an accounting, and, in the alternative, rescission. Finally, Davidson asserts a claim of violation of Civil Rights Law § 51. Defendant's answer counterclaimed against Sirico for costs arising from Davidson's claims, on the ground that Davidson performed at Sirico's behest.

Before discovery commenced, defendant moved for summary judgment dismissing the complaint and on its counterclaim. Defendant's principal, Richard Gottehrer, provided an affidavit that disputes most of plaintiffs' factual allegations. Gottehrer states that he formed FGG with his partners, Gerald Goldstein and Robert Feldman, in 1963, while they were working as staff songwriters for a music publisher. As aspiring record producers, the songwriters would, at their own expense, produce recordings of their songs performed by artists they had engaged, with the aim of selling the rights in the recordings to established record labels.

After composing “My Boyfriend's Back,” Gottehrer and his partners asked the Angels to record it. According to Gottehrer, “ ‘The Angels' were the Allbut sisters [Sirico and her sister Barbara], who might be joined by such other vocalists as they engaged.” Gottehrer alleges that by 1961, the Allbuts were performing and recording as the Angels along with Linda Jansen, who they described as their “employee,” and who was in 1962 replaced by Davidson.

Gottehrer further alleges that when “My Boyfriend's Back” was recorded in 1963, the Allbuts were already parties to a March 1963 recording contract with a production company called Sabina Records, and a separate personal management contract with one Gerald Granahan.² Under the recording contract, the Allbuts had agreed to record exclusively for Sabina for a two-year term ending March 23, 1965, and in exchange for their performances they would receive specified royalties based on record sales, to be paid semiannually. Gottehrer states that the partners did not learn of the Sabina contracts until after they had recorded “My Boyfriend's Back” “on spec” and found a record label, Smash Records, which wanted to buy the rights to the recording.

At that point, Gottehrer continues, FGG “bought out” the Allbuts from the Sabina contract and from their management contract. Gottehrer denies that FGG ever entered into a recording agreement with Davidson or purchased any agreement to which she was a party.

Gottehrer states that FGG had rendered royalty statements to the Allbuts until 1964, when they flatly refused to record any more for FGG. In or about January 1965, Gottehrer claims, FGG's attorney notified the Allbuts' attorney that it was suspending the recording contract. Gottehrer also alleges that by late 1964, the Allbuts and Davidson were recording for another label under a different name, and later signed a recording contract as the Angels with still another label. He contends that their actions breached the exclusivity provision of their agreement and forfeited their rights to royalties for the FGG recordings.

As documentary evidence on the summary judgment motion, defendant submitted an incomplete and partially illegible copy of the Allbuts' contract with Sabina Records. It also submitted a letter, dated April 10, 1963, by which the Allbuts consented to the assignment to FGG of the Sabina Records contract and the personal management contract. The letter indicates that the Allbuts agreed that payment of $2000 to Sabina and $1000 to Sabina's owner would be deducted from the first royalties payable to them as FGG artists. Finally, defendant submitted biographies about, discographies of, and interviews with the Angels, which were obtained from various internet Web sites.

In opposition to the motion for summary judgment, plaintiffs submitted only their counsel's affirmation and a memorandum of law. In the January 2008 order, Supreme Court granted defendant's motion and dismissed the complaint, finding defendant had made a prima facie showing that it was entitled to judgment to which plaintiffs had offered virtually no opposition, since neither the affirmation nor the memorandum of law had any evidentiary value. The court also denied summary judgment to defendant on its counterclaim against Sirico, severed it, and directed that it continue.

In May 2008, plaintiffs moved for renewal and reargument,³ contending that the allegations in Gottehrer's affidavit were conclusory and unsupported by any proof, and noting that defendant had moved for summary judgment before plaintiffs had the opportunity to conduct discovery. For those reasons, plaintiffs argued, they believed their factual allegations in the complaint and bill of particulars should have withstood the motion for summary dismissal.

[896 N.Y.S.2d 65 , 71 A.D.3d 433]

In connection with their motion to renew, plaintiffs submitted “affidavits” witnessed by out-of-state notaries that were questionable as to proper form. Davidson states that she understood from representations by FGG's owners, including Gottehrer, that FGG would pay her the same royalties as the Allbuts for recording as a member of the Angels. According to Davidson, FGG had made one “negligible” royalty payment to each of the three women. Davidson adds that she never signed any agreement when joining the group and never signed any waiver or release of any of her rights, and claims that FGG used her voice, name and image to sell records. Davidson denied that the Angels ever refused to record for FGG.

In a similar affidavit, Sirico states that all three women believed that as a member of the Angels, Davidson was entitled to FGG's royalties, and in fact FGG gave each of the women one royalty...