Mims v Capitol Records, LLC

Mims v Capitol Records, LLC 2015 NY Slip Op 09362 Decided on December 17, 2015 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 December 17, 2015
Mazzarelli, J.P., Acosta, Moskowitz, Richter, JJ.
16439 652653/11

[*1] Shawn Mims, etc., et al., Plaintiffs-Respondents, —

v

Capitol Records, LLC, etc., Defendant-Appellant.

Pryor Cashman LLP, New York (Donald S. Zakarin of counsel), for appellant.

Reitler Kailas & Rosenblatt LLC, New York (Brian D. Caplan of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 9, 2015, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing "[c]laims 7 and 16" in plaintiffs' complaint, unanimously modified, on the law, to grant the motion with respect to claim 7, and otherwise affirmed, without costs.

Defendant is entitled to summary judgment dismissing so much of plaintiffs' breach of contract cause of action relating to defendant's retention of digital download revenues (plaintiffs' claim 7). Defendant established, as a matter of law, that the Assignment Agreement's 21% "Domestic Distribution/Services fee" at issue, which redefined the applicable costs and fees that defendant was entitled to retain, did not exclude revenues defendant received from digital downloads, as did the prior agreement between plaintiffs and defendant's assignor.

The court correctly denied summary judgment dismissing so much of the breach of contract cause of action relating to defendant's retention of revenues paid to it by SoundExchange (plaintiffs' claim 16), since issues of fact exist as to the amount of revenues paid by SoundExchange to defendant and the amount that plaintiffs are entitled to.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 17, 2015

CLERK