Then v Navarro

[*1] Then v Navarro 2015 NY Slip Op 51014(U) Decided on April 17, 2015 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 17, 2015
Supreme Court, New York County

Jonathan Then and RODOLFO JAQUEZ, Plaintiff(s)

against

Luis Navarro and NYC-L PRODUCTIONS, Defendant(s),



652373/2014



For plaintiffs Jonathan Then and Rodolfo Jaquez

Emergent Legal

25 Broadway

New York, New York 10004

By: Christopher Wimmer, Esq.

For defendants Luis Navarro and NYC-L Productions

Gregory H. Griffith, P.C.

244 5th Avenue, Suite G211

New York, NY 10001

By: Gregory H. Griffith, Esq.
Robert R. Reed, J.

Plaintiffs Jonathan Then and Rodolfo Jaquez, evidently talented young vocal musicians who perform and record as the urban "bachata" band "Grupo 24 Horas," bring this motion for preliminary injunction, pursuant to CPLR 6301 et seq., to bar defendants Luis Navarro and NYC-L Productions from enforcing the Management Agreement and Exclusive Artist Recording Agreement, both dated as of October 23, 2012 ("Agreements"), executed by plaintiffs when they were still in their teens, or, in the alternative, to bar defendants from enforcing the exclusivity portions of those Agreements. The crux of plaintiffs' argument, presented in affidavits submitted in support of their motion, at oral argument, and in sworn testimony given at a two-day evidentiary hearing before this Court, is that, while acting as de facto booking agent for the Group in conflict with their roles under the Agreements, defendants have (1) neglected and are continuing to neglect their obligations as set forth in the Agreements with respect to the production and promotion of records and record albums by and on behalf of Grupo 24 Horas, (2) [*2]squandered and are continuing to squander plaintiffs' opportunities to capitalize on their youth in the niche market of urban bachata music, and (3) damaged and are continuing to damage plaintiffs' goodwill within the music industry and, in particular, within the urban bachata music market.

In particular, plaintiffs complain that defendant Navarro often booked Grupo 24 Horas to exhausting schedules of performances at clubs around the country, for which he received substantial agent's fees, while defendant Navarro and the entity he controls, defendant NYC-L Productions, have done precious little to support financially the production of records or record albums by Grupo 24 Horas or to promote the sale or use of the group's records. The determined inaction with respect to the production and promotion of records and record albums is especially galling to plaintiffs because, as the hearing testimony showed without dispute, the urban bachata audience consists primarily of young listeners who want to hear, see and compare music performed by young, vibrant and physically attractive musical artists. Thus, the failure to take action at present is having the effect of depriving of an opportunity that will be lost when these young men grow older.

Although defendants submitted written opposition to the motion initially, when faced with plaintiffs' credible, persuasive and, indeed, compelling testimony at the two-day evidentiary hearing on the motion, defendants, though on notice and available to testify, chose not to testify themselves in contradiction or rebuttal to the testimony provided by plaintiffs and plaintiffs' witness. Defendant Navarro was present in the courtroom on the first day of the hearing and his presence in the hallway outside the courtroom on the second day of the hearing was acknowledged on the record. It would have been a simple matter for defendant Navarro, then, to take the stand and, under oath, inform the Court of the concrete steps taken by defendants to fulfill their obligations under the Agreements. Defendants, the Court notes, did present witnesses at the hearing, but those witnesses, in this Court's view, offered only testimony substantially confirming portions of plaintiffs' factual contentions.

The decision to grant or deny a preliminary injunction rests within the sound discretion of the Court (Merscorp, Inc. v. Romaine, 295 AD2d 431). On the facts presented at hearing, this Court is satisfied that plaintiffs have presented credible and persuasive evidence that they are likely to succeed on the merits of their claims, that irreparable harm will result if their preliminary relief is denied, and that the balance of the equities weigh in their favor (id.). In assessing the likelihood of success on the merits, the Court finds it significant that defendants chose not to take the stand themselves to respond to plaintiffs' testimony that defendants have not produced or promoted records or record albums by plaintiffs at a time when plaintiffs are best primed to take advantage of a particular market. Surely, it was plaintiffs' burden to put the issue in play. In this Court's view, plaintiffs, by their testimony and that of their witness, did so. Defendants, in refusing to offer the Court, a contrary scenario, took the risk that the Court would accept the version of facts offered by plaintiffs.

Irreparable harm is established by the damage defendants have done and are doing to the goodwill of plaintiffs within the industry and within the urban bachata market by essentially [*3]preventing them from exploiting their current youth in a market that particularly values such fleeting commodity. Before coming under contract with defendants, the unrebutted testimony at the hearing showed, plaintiffs had produced records that had performed well on the charts. As plaintiffs now are forced to sit on their hands, waiting for defendants to act, the urban bachata music market asks, "Where is Grupo 24 Horas? What happened to those guys? Weren't they supposed to be the next big thing?" Indeed, moment by moment of defendants' inaction results in lost opportunity for status and fame for plaintiffs, which cannot be recouped, and which cannot adequately be compensated by money — even assuming defendants have the money to satisfy a given judgment, an assumption with no basis in the record on this motion. Finally, the equities surely weigh in favor of young musicians being enabled to use their talents to their fullest extent, rather than in favor of a manager and record label, apparently based on conflicting interests, being permitted to bury those talents in the sand.

Accordingly, due deliberation having been had, and it appearing to this Court that a cause of action likely exists in favor of plaintiffs and against defendants and that plaintiffs are entitled to a preliminary injunction on the ground that defendants threaten or are about to do or are doing or procuring or suffering to be done an act in violation of plaintiffs' rights respecting the subject matter of this action and tending to render any judgment herein ineffectual, as set forth above, it is

1.ORDERED that plaintiffs' motion, pursuant CPLR 6301 et seq., is granted; and it is further

2.ORDERED that an undertaking be fixed in the sum of $1000.00 conditioned that plaintiffs, if it is finally determined that they were not entitled to an injunction, will pay to defendants all damages and costs which may be sustained by reason of this injunction; and it is further

3.ORDERED that defendants, their agents, servants, employees and all other persons acting under the jurisdiction, supervision and/or direction of defendants, are enjoined and restrained, during the pendency of this action, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of defendants or otherwise, any of the following acts: (a) taking any steps to enforce any "exclusivity" provisions, terms, clauses, or features of the above-identified Management Agreement and Exclusive Artist recording Agreement, both dated as of October 23, 2012 ("Agreements") and executed by plaintiffs; (b) taking any steps to interfere with or in any way hinder any attempt or effort on the part of plaintiffs or by any person or entity on behalf of plaintiffs to produce or promote any record or record album, including the manufacture, distribution and/or commercial exploitation or use of any record performed by plaintiffs, either plaintiff, or any musical group in which they perform; (c) taking any steps to interfere with or in any way hinder any attempt or effort on the part of plaintiffs or by any person or entity on behalf of plaintiffs to manufacture, distribute or otherwise commercially exploit or use the name and/or likeness of plaintiffs, either plaintiff, or any musical group in which they perform; or (d) taking any steps to interfere with or in any way hinder the [*4]negotiation, execution and performance of any contract plaintiffs may enter into with a record label other than one associated with plaintiffs; and it is further

4.ORDERED that counsel for the parties or any parties planning to appear pro se shall appear for a preliminary conference in Part 43, located in Room 581 at 111 Centre Street, New York, New York on April 30, 2015, at 9:30 a.m.

Dated: April 17, 2015

ENTER

_____________________________

ROBERT R. REED,

J.S.C.