Mims v. Capitol Records, LLC

134 A.D.3d 554, 20 N.Y.S.3d 887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2015
• Docket: 16439 652653/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 9, 2015, which, to the extent appealed from as limited by the briefs, denied defendant’s motion for summary judgment dismissing “[c]laims 7 and 16” in plaintiffs’ complaint, unanimously modified, on the law, to grant the motion with respect to claim 7, and otherwise affirmed, without costs.

Defendant is entitled to summary judgment dismissing so much of plaintiffs’ breach of contract cause of action relating to defendant’s retention of digital download revenues (plaintiffs’ claim 7). Defendant established, as a matter of law, that the Assignment Agreement’s 21% “Domestic Distribution/Services fee” at issue, which redefined the applicable costs and fees that defendant was entitled to retain, did not exclude revenues defendant received from digital downloads, as did the prior agreement between plaintiffs and defendant’s assignor.

The court correctly denied summary judgment dismissing so much of the breach of contract cause of action relating to defendant’s retention of revenues paid to it by SoundExchange (plaintiffs’ claim 16), since issues of fact exist as to the amount of revenues paid by SoundExchange to defendant and the amount that plaintiffs are entitled to. Concur — Mazzarelli, J.P., Acosta, Moskowitz and Richter, JJ.