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Ellington v. Sony/ATV Music Publishing LLC

85 A.D.3d 438 Court N.Y. App. Div. Decision date 2011-06-07 English

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p. 438
Paul M. Ellington, Appellant, v Sony/ATV Music Publishing LLC et al., Respondents.
[925 NYS2d 20]

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’

p. 439
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 plaintiffs 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]). Plaintiffs 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 plaintiffs 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]), plaintiffs artificial separation of the royalty misrouting allegation from the “negative adjustment” contract claims notwithstanding. The unjust enrichment claim was not viable in light of the undisputedly valid contract claims (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 , 23 [2005]).

We have considered plaintiff’s other contentions and find them unavailing. Concur — Saxe, J.P., DeGrasse, Freedman, Abdus-Salaam and Manzanet-Daniels, JJ.

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