Jambetta Music Inc. v Nugent

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Jambetta Music Inc. v Nugent 2004 NY Slip Op 30388(U) August 25, 2004 Supreme Court, New York County Docket Number: 105551/2004 Judge: Rosalyn H. Richter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] I I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 24 I ---------------------·----------~---•--•••~•••~•••~~--•••Y•~-~••M••••M•-•R•X I Jambetta Music Inc., I I Plaintiff, -against- Index No. 10555112004 ! I Wayne Nugent d/b/a/ . Dangerous Music, Midimafla, Theif Jn Da Nite, Bruce W~yne and P.Dubbs, , , Defendant. /:t / {. Al(/<;< ~~~---~----~--~-----------7-------------~-------~c---~~~ JI,!~ ~a*J.,, ; ;;>' /$'o ~ l. t--·:;,~~:~I( I ·~a Plaintiff, a music Pf>duction company, m?ves for a preliminary injuncti~taining an Richter, J: 1 I order restraining defendan~ from recording, producing and /or publishing music for any person or i entity other than plaintiff; imd directing defendant to deposit into the court all monies, royalties, I commissions and/or paym~ts earned and/or paid for recording, pro!fuction and/or publishing I services for any other pers6n or entity other than plaintiff. Defendant is a musical artist and I member of various groups .or bands. An "exclusive recording artist and co-publishing I agreement" was executed by plaintiff and defendant on September 4, 1997 which provided, in I part, for plaintiff's produc~on of an album of songs to be created by defendant's band. The contract was to remain in effect until one year after the ''minimum recording commitment" was I fulfilled. Plaintiff alleges '11at defendant breached the agreement by failing to provide sufficient songs, in the manner antictated by the contract, fu constitute an album and by performing with I another band on what was an allegedly commercially successful album, in violation of the I contract's exclusivity provision. I 1 I 1 [* 2] I A preliminary injJnction may be granted where it appears that the defendant threatens to I or is about to commit an ~ct in violation of the plaintiff's rights with respect to the subject of the I action and tending to renqer the judgment ineffectual. CPLR 6301. It is the moveant's burden to establish: (1) a likelihood of success on the merits; (2) that irreparable. injury will result absent the grant of a preliminary/ injunction; and (3) that a balance of the equities favors its position. i Koultukis v. Phillips, 285 jA.D.2d 433 (!st Dept. 2001 ). "Preliminary relief is a drastic remedy I and will only be granted if the movant establishes a clear right to it under the law and the I undisputed facts on the mpving papers.,, Id. The Court finds that plaintiff has not meet its burden for several reasons. First, although I I ! the mere existence of a di~uted fact alone is insufficient to defeat a request for a preliminary I injunction, CPLR 6312(c), the factual record presented to this Court by the parties contains '1 largely differing versions bf the facts. The material facts in dispute which cannot be resolved I without a trial include whbther the contract was in force and effect at the time of defendant's I , alleged breaches; how mky songs and disks were delivered by defendant to plaintiff, if any; I whether an album was released pursuant to the contract; and whether, as defendant alleges, ! plaintiff breached the agr~ement first by failing to arrange a distribution agreement. The affidavits and documentm;Y evidence submitted in support of the parties' claims directly conflict on these points. Thus, it is not clear from the moving papers that plaintiff is likely to succeed on I I the merits, and a prelimi~ injunction at this point would not be appropriate. See, e.g., Winkler I v. Kingston Housing Aut~., 238 A.D.2d 711 (3d pept. 1997) (no preliminary injunction where I key facts were in dispute)~ SportsChannel American Assoc. v. National Hockey League, 186 i A.D.2d 417 (1st Dept. 1992) (injunctive relief inappropriate where contractual language required I I I I i 1 2 • [* 3] i interpretation); Business f etworks ofNew York, Inc. v. Complete Network Solutions, Inc., 1999 I WL 126088, at •1 (Sup. ~t. N.Y. Co. 1999) (finding injunctive relief to be extreme and I unavailable where "the d~ute is rife with questions of fact ..."). I Second, the Court is not persuaded that plaintiff will be irreparably injured absent the grant of a preliminary inj\Jnction and temporary restraining order. All of the defendant's I complained-of behavior is in the past and plaintiff does not allege any on-going or future I breaches of the contract, ~xcept for the implication that defendant may continue to receive I payments for his past performances allegedly in violation of the contract. Moreover, New York I courts cannot compel the !specific performance ~fa contract for services, American Broadcasting Cos., Inc. v. Wolf, 52 N.y.2d 394 (1981), and there is a strong public policy against preventing a party from practicing its livelihood. See Marietta Corp. v. Fairhurst, 301 A.D.2d 734 (3d Dept. I I 2003). Also, plaintiff could be fully compensated with monetary damages, should it prevail on I I the merits. "Monetary dalnages simply are not irreparable and are an insufficient hann to support I I ; the issWn:g of an injunctiqn.,, Winkler v. Kingston Housing Auth., 238 A.D.2d 711 (3d Dept. 1997). Third, plaintiff has not articulated any immediate need for relief, nor is there any indication here that with~ut the issuance of a preliminary injunction, the subject matter of the I lawsuit will be so damaged as to render an ultimate decision in plaintiff's favor ineffectual. I I CPLR 6301 & 6312(a). ~or example, there has been no showing that defendant is insolvent or i would otherwise be unable to pay any money judgment that might be obtained against it. I I I For the foregoing fasons, plaintiff's motion for a preliminary injunction and temporacy I restraining order is denied. I 3 I [* 4] This constitutes the decision and order of the Court. I RAYjJ... 7J$ I Jus~;:;_:z:;~ Richter August 25, 2004 4

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