Digital Seven LLC v. El-Mohmouh

2025 NY Slip Op 30162(U)

• Court: New York Supreme Court, New York County
• Decided: January 15, 2025
• Docket: Index No. 652637/2021
• Status: Unpublished

Opinion

Digital Seven LLC v El-Mohmouh 2025 NY Slip Op 30162(U) January 15, 2025 Supreme Court, New York County Docket Number: Index No. 652637/2021 Judge: Debra A. James 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. INDEX NO. 652637/2021 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/15/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 652637/2021 DIGITAL SEVEN LLC and BRENDAN COCHRANE, MOTION DATE 11/13/2024 Plaintiffs, MOTION SEQ. NO. 001 002 -v- KARIMA EL-MOHMOUH, as administrator of the Estate of Joseph Bryan a/ka/ Taheim Bryan, Deceased, ROB DECISION + ORDER ON SIMMONS, FIRST BORN PRODUCTION LLC, and JARS PRODUCTIONS, INC., MOTION

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 23, 26, 27, 29, 30, 31, 52 were read on this motion to/for COMPEL ARBITRATION .

The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 19, 20, 21, 22, 24, 25, 28 were read on this motion to/for DISMISSAL .

ORDER

Upon the foregoing documents, it is

ORDERED that the motion, pursuant to CPLR § 3211(a)(7), of

defendants Rob Simmons and Jars Production, Inc., to dismiss the

complaint against them (mot seq no 002) is granted and the complaint

is dismissed in its entirety as against such defendants, with costs

and disbursements to such defendants as taxed by the Clerk of the

Court, and the Clerk is directed to enter judgment accordingly in

favor of such defendants; and it is further

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ORDERED that the action is severed and continued against the

remaining defendants; and it is further

ORDERED that the caption be amended to reflect the dismissal

and that all future papers filed with the court bear the amended

caption; and it is further

ORDERED that counsel for the moving parties shall serve a

copy of this order with notice of entry upon the Clerk of the Court

and the Clerk of the General Clerk’s Office, who are directed to

mark the court’s records to reflect the change in the caption

herein; and it is further

ORDERED that such service upon the Clerk of the Court and the

Clerk of the General Clerk’s Office shall be made in accordance

with the procedures set forth in the Protocol on Courthouse and

County Clerk Procedures for Electronically Filed Cases (accessible

at the “E-Filing” page on the court’s website); and it is further

ORDERED that to the extent that it seeks an award of

attorneys’ fees and/or sanctions against plaintiffs, the motion

of defendants Rob Simmons and Jars Production, Inc., is denied;

and it is further

ORDERED that the motion, pursuant to CPLR §§ 7503(a) and

7504, of defendants Karima El-Mohmouh, as administrator of the

Estate of Joseph Bryan, deceased, and First Born Production LLC

to stay this action, compel plaintiffs to arbitrate, and for

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the appointment of an arbitrator (mot seq no 001) is granted;

attorneys’ fees and/or sanctions against plaintiffs, the motion

of defendants Karima El-Mohmouh, as administrator of the Estate

of Joseph Bryan, deceased, and First Born Production LLC is

denied; and it is further

ORDERED that plaintiffs Digital Seven LLC and Brendan

Cochrane shall arbitrate their claims against defendants Karima

El-Mohmouh, as administrator of the Estate of Joseph Bryan a/k/a

Taheim Bryan, Deceased, and First Born Production LLC, in

accordance with the Film Production Agreement dated March 30, 2018

(NYSCEF Document Number 002); and it is further

ORDERED that all proceedings in this action are hereby stayed,

except for an application to vacate or modify such stay; and it is

further

ORDERED that either party may make an application by order to

show cause to vacate or modify this stay upon the final

determination of the arbitration; and it is further

ORDERED that, after conferring with each other about their

respective preferences for an arbitrator, on or before January 31,

2025, each counsel shall post on NYSCEF, jointly or separately, a

list of the full name, business address and telephone number of

three arbitrators, who are qualified and have experience in

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intellectual property law arbitration, and who are available to

conduct the arbitration; and it is further

ORDERED that no later than February 10, 2025, a further

order of appointment, pursuant to CPLR § 7504, that designates

an arbitrator, selected from the foregoing list(s), shall be

issued.

DECISION

This court agrees with defendants Rob Simmons and First

Born Production LLC that no cause of action for unjust

enrichment lies against them, where there is a valid contract in

place and such contract covers the subject matter of the

dispute, notwithstanding that they are non-signatories thereto.

See Board of Managers of 15 Union Square West Condominium v

Azogui, 230 AD3d 405 (1st Dept 2023). However, defendants Rob

Simmons and First Born Production LLC are not entitled to

recover attorneys’ fees, as there is neither contractual nor

statutory authority for such an award. See Klein v Sharp, 41

AD2d 926 (1st Dept 1973).

The court concurs with the argument of defendants Karima El-

Mohmouh, as administrator of the Estate of Joseph Bryan, deceased,

and First Born Production LLC that plaintiffs’ claims as against

such defendants are subject to arbitration, under paragraph 4 of

the Film Production Agreement dated March 30, 2018 (NYSCEF Document

Number 012), whose language is clear and unambiguous. Such

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defendants are also correct that the non-signatory plaintiff

Digital Seven LLC and non-signatory defendant First Productions

LLC must arbitrate under the Agreement. See Matter of SSL Intern.,

PLC, v Zook, 44 AD3d 429 (1st Dept 2007).

This court declines to award attorneys’ fees or sanction

plaintiffs for bringing this action against defendants Karima El-

Mohmouh, as administrator of the Estate of Joseph Bryan, deceased,

and First Born Production LLC. Unlike plaintiff in Feffer v

Goodkind, Wechsler, Labaton & Rudoff, 183 AD2d 678 (1st Dept 1992),

who argued that his claims were not arbitrable, plaintiffs at bar

concede that the dispute must be arbitrated. Furthermore, the

delays in resolution of the instant dispute are largely

attributable to the death of defendant Joseph Bryan a/k/a Taheim

Bryan, automatic stay triggered by such death, and proceedings to

substitute the personal representative of his estate. Nor will

the court sanction such defendants for seeking sanctions against

plaintiffs. Of course, the party that prevails in the arbitration

will be entitled to an award of reasonable attorneys’ fees under

paragraph 18 of the Agreement. , ~ ,d - } ~ 202501151907 41DJAME513F79BBF604844EB89AC45F60BCCAF F9

1/15/2025 DATE DEBRA A. JAMES, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER X SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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