CBS, Inc. v. American Society of Composers, Authors & Publishers

Appellate Division of the Supreme Court of New York

CBS, Inc. v. American Society of Composers, Authors & Publishers

276 A.D.2d 337, 714 N.Y.S.2d 44, 2000 N.Y. App. Div. LEXIS 10651

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 17, 2000

StatusPublished

This text of 276 A.D.2d 337 (CBS, Inc. v. American Society of Composers, Authors & Publishers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

CBS, Inc. v. American Society of Composers, Authors & Publishers, 276 A.D.2d 337, 714 N.Y.S.2d 44, 2000 N.Y. App. Div. LEXIS 10651 (N.Y. Ct. App. 2000).

Pincite

Opinion

Judgment, Supreme Court, New York County (Barry Cozier, J.), entered September 10, 1999, dismissing the complaint and bringing up for review an order, same court and Justice, entered August 9, 1999, which granted the motion of defendant American Society of Composers, Authors and Publishers (ASCAP) for summary judgment, unanimously affirmed, with costs. Appeal from the aforesaid order entered August 9, 1999 unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

Plaintiff, suing for breach of contract under a licensing agreement with the American Society of Composers, Authors, and Publishers, alleges that under a “most favored nation” clause in the agreement it was entitled to the time value of its payments by reason of an agreement ASCAP signed with CBS’s rival, National Broadcasting Corporation (NBC). The clause gave CBS the right to demand similar terms if a subsequently signed agreement with a rival network provided for lower “total price or payments”. CBS contends that since NBC did not make payments until 1992 for the years 1977 through 1990, whereas CBS had made payments for the same period in 1981 and 1985, the NBC package, albeit higher in gross amount, obligated NBC to pay less due to the time value of the money.

We find, however, that the grant of summary judgment to [338]*338ASCAP was proper. The plain language of the agreement indicates that the clause only encompassed absolute value, and was not intended to compensate for time value. Thus, there is no need to resort to extrinsic evidence (see, Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 171-172). Our conclusion is buttressed by CBS’s failure to demand interest or other economic benefit when it received a refund as a result of a similar agreement ASCAP signed with the American Broadcasting Company. In view of CBS’s failure to reserve its rights, the conclusory testimony of its officers that they intended to raise the issue when ASCAP signed with NBC is unavailing. Concur — Sullivan, P. J., Rosenberger, Mazzarelli and Buckley, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, New York County (Barry Cozier, J.), entered September 10, 1999, dismissing the complaint and bringing up for review an order, same court and Justice, entered August 9, 1999, which granted the motion of defendant American Society of Composers, Authors and Publishers (ASCAP) for summary judgment, unanimously affirmed, with costs. Appeal from the aforesaid order entered August 9, 1999 unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

Plaintiff, suing for breach of contract under a licensing agreement with the American Society of Composers, Authors, and Publishers, alleges that under a “most favored nation” clause in the agreement it was entitled to the time value of its payments by reason of an agreement ASCAP signed with CBS’s rival, National Broadcasting Corporation (NBC). The clause gave CBS the right to demand similar terms if a subsequently signed agreement with a rival network provided for lower “total price or payments”. CBS contends that since NBC did not make payments until 1992 for the years 1977 through 1990, whereas CBS had made payments for the same period in 1981 and 1985, the NBC package, albeit higher in gross amount, obligated NBC to pay less due to the time value of the money.

We find, however, that the grant of summary judgment to [338]*338ASCAP was proper. The plain language of the agreement indicates that the clause only encompassed absolute value, and was not intended to compensate for time value. Thus, there is no need to resort to extrinsic evidence (see, Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 171-172). Our conclusion is buttressed by CBS’s failure to demand interest or other economic benefit when it received a refund as a result of a similar agreement ASCAP signed with the American Broadcasting Company. In view of CBS’s failure to reserve its rights, the conclusory testimony of its officers that they intended to raise the issue when ASCAP signed with NBC is unavailing. Concur — Sullivan, P. J., Rosenberger, Mazzarelli and Buckley, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

276 A.D.2d 337, 714 N.Y.S.2d 44, 2000 N.Y. App. Div. LEXIS 10651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cbs-inc-v-american-society-of-composers-authors-publishers-nyappdiv-2000.

Opinion

Related

Cite This Page — Counsel Stack