War Rd. Music, Inc v Ditto Ltd

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War Rd. Music, Inc v Ditto Ltd 2021 NY Slip Op 32632(U) December 9, 2021 Supreme Court, Kings County Docket Number: Index No. 517590/2020 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 12/09/2021 11:26 AM INDEX NO. 517590/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 12/09/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 . --- .-. -- .. ----. --. ----------- ... - . ----.. ·.. · .-x WAR ROAD MUSIC, INC and DRIVE-THRO RECORDS, LLC, Plaintiffs, Decision and Order Index Number s17.s9·012·0.20 -againstDecember 9, 2021 DITTO LTD arid CHRISTOPHER MOONEY, Defendants, ---.. ·- .------·-. --·-----------· . -----·-· -- ··--x PRESENT: HON. LEON RUCHELSMAN The plaintiffs have moved pursuant to CPLR §3212 seeking summary judgement on the grounds there are no questions of fact and ttiey are entitled to judgement. motion. The defendants oppose the Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. According to the Complaint the plaintiff War Road is ari artist management company and plaintiff Drive Thru is a record label company. The d.efendant Ditto is a di-gital distribµtor of music and defendant Christopher Mboffey is the United States head of operations of Ditto. All of the corporate part::ies maintain their principal places of business in other places and not New York State. On July 17, 2019 Ditto.entered. into agreements· with both Drive T_hru and War Road whereby Ditto agreed to market and promote digital .musical coriterit of the plaintiffs and required the defenciq.nt Ditto to pay for some .expenses as deta:Lleci in the agreements. The complaint;:: alleges .four causes 1 of 5 of action, breach [*FILED: 2] KINGS COUNTY CLERK 12/09/2021 11:26 AM INDEX NO. 517590/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 12/09/2021 :of contract -.against both Drive Th;ru and. War Room, misrepresent ation by Mooney and fat art injunction. "fraudulent The parties have not engaged in any- discovery at all and .now the plaintiffs move· :seeking summ:ary judgement arg.t1ing· there . _are no_. gues~ions -of fact t.he piairttiffs are entitled to judgement ori each cause of action. Conclusions of Law Where the material facts at issue in a case are in dispute summa.~-y j udgn1ent cann:.o.t be _-granted. ( Zuckerman v. City of New York, 49 NYS2d 557 1 427 NYS2d 595 [198Q]), :G:e_nerally, it is for the jury, the trier o:f fact to determine: the legal cause of any injury {Aronson v. Horace- Mann-B"arnard School, 22"4 AD2d 249r 63"7 NYS2d 410 [l3t Dept., 1996]) ,. However, _where only one conclusio_n may be_ drawn from the facts ·.then the question of legal cause may be. decided by the tri-~-i cour.:t as .a. matt~:r of law .(-Derdia:r-ian v,Felix Contracting Ilic., 51 NY2d 308, 434 NYS2d 166 [19H0J). Thus_,. to succeed on a motion for summary j udge:men:t. .it i•s necessary .:for 1:he movant to make. _a. prim~ faGie sho_wing 0£ an entitlement as a matte·r of law by offering evidence demonstrating the ab..sence of any ma_terial "issu-e..of fa.ct (Winegrad v. New Yark University Medical Center, 64 NY2d 851, 487 NYS2d _316 [1985]). Moreove;;r, a movant .cannot succeed upon a motion for sumrn:ary· j_udgeme_nt by pointi:ng to gaps in th_e opponer1ts c~se because _the moving party.must affirmativel y present evidence demonstratip.g 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 12/09/2021 11:26 AM INDEX NO. 517590/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 12/09/2021 the lack of any questions of fact (Velasquez v. Gomez, 44 AD3d 64.9, 843 NYS2d 368 [2d Dept.; 2007]). It is well settled that to succeed upon a claim of breach of contract the plaintiff must establish the existence of a contract, the plaintiff's performance, the defendant's breach and resulting damages (Harris v. Seward Park Housing Corp., 425, 913 NYS2d 161 [ pt Dept . , 2010] ) . Gianelli v. RE/MAX of New York, 79 AD3d Further, as explained in 144 AD3d 861, 41 NYS3d 273 [2d Dept., 2016}, "a breach of contract cause of action .fails as a matter of law in the absence of any showing that a specific provision of the contract was breached" (id). The plaintiff's do not provide any evidence, other than simple concllisory assertions that any breach Of contract took place. Surely, tl)e plaintiffs have not provided any of the provisions of the agreement they assert were breached. The complaint states in identical language for each contract that "DITTO breached the agreement by failing to provide the agreed upon funds, failing to provide the promised services and terminating the agreement prior to the e_rid of the term" (see, Complaint, '.If 54, sr 58) . Similarly, the motion in support simply states "DITTO breached agreements" Memorandum of Law in Support, '.If 2). (see; The affidavit in support of the motion submitted by Richard Reines the co-owner of both War Road and Drive Thru does state that "since January of 2020, DITTO has repeatedly breached its obligations and has failed to pay 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 12/09/2021 11:26 AM NYSCEF DOC. NO. 60 INDEX NO. 517590/2020 RECEIVED NYSCEF: 12/09/2021 amounts due under the agreements"· (see, Affi.rmation of Richard Reines, <JI 2). However, that a11.eg.ation in also conclusory. Indeed, all the evidence submitted boils dow:n to a simple assertion, namely that Ditto breached the contracts. There is no explanation how the contr.3.cts were breached, the nature of the breaches arid the damages incurred. This is particularly important becaus·e an examination of the contracts reveals it contains two broad duties that must he fulfilled by the defendant, namely promotion and marketing and advances. The promotion and marketing requires the mutual agreement of the plaintiffs while the advances axe further divided into a labeling advance, label marketing fundi an artist signing fund, and an artist marketing fund. The motion seekirtg breaches of the agreements do not specify the precise breaches that took place at all. In addition, the basis for the defendant's termination has not been explored. Thus, there are significant questions of fact which foreclose a summary determination at this time. Further, the request seeking an injunction is difficult to comprehend. The motion states that an injunction is necessary ''to prevent DITTO from continuously interfering with the plaintiff's rights in the sound recordings they own" (see, Memorandum of Law in Support, <JI 5). However, there is absolutely no .evidence that Ditto is interfering with any recordings owned 4 .,.,,._, __ __ , ,,_,, ________________________________________ 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 12/09/2021 11:26 AM NYSCEF DOC. NO. 60 INDEX NO. 517590/2020 RECEIVED NYSCEF: 12/09/2021 by the plaintiff. Surely, there can be no conclusion there are no questions of fact in this regard. Therefore, based on the foregoing, the motion seeking summary judgement is denied in all respects; So ordered. ENTER: DATED: December 9, 2021 Brooklyn N.Y. Hem. Leon Ruchelsman JSC 5 ____________ ,,. .. ,_........... ______ ., .......... _____________________ 5 of 5

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