Alberts v CSTV Networks, Inc.

Alberts v CSTV Networks, Inc. 2012 NY Slip Op 04394 Decided on June 7, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2012
Gonzalez, P.J., Friedman, Renwick, Manzanet-Daniels, Román, JJ.
7866 113081/09

[*1]Trev Alberts, Plaintiff-Appellant,

v

CSTV Networks, Inc., Defendant-Respondent.




Altman & Company, P.C., New York (Matthew H. Ehrlich of
counsel), for appellant.
CBS Law Department, New York (Mary Catherine Tischler of
counsel), for respondent.

Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered March 9, 2011, which granted defendant broadcasting network's motion for summary judgment dismissing the complaint for breach of contract, unanimously affirmed, without costs.

The motion court correctly concluded that plaintiff materially breached his contract with defendant by accepting the position of Athletics Director at the University of Nebraska-Omaha, while still under contract with defendant. The agreement between the parties plainly contemplated that plaintiff would be available to defendant on a full-time basis for the entire term of the agreement, an obligation he could not fulfill while running a university athletics program 1500 miles away from defendant's New York studios. Moreover, plaintiff's media appearances were to be exclusive to defendant, an agreement he breached by making media appearances as the head of the University's Athletics Department. Plaintiff's breaches were material as a matter of law, as they were substantial enough to defeat the parties' objectives in making the contract (see Robert Cohn Assoc., Inc. v Kosich, 63 AD3d 1388, 1389 [2009]). Accordingly, defendant was entitled to terminate the agreement and to withhold further payments due thereunder (see e.g. Legend Artists Mgt. v Blackmore, 273 AD2d 91 [2000]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: JUNE 7, 2012

CLERK