Professional Documents
Culture Documents
652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018
SUPREME COURT
COURT OF THE STATE
STATE OF NEW YORK
COUNTY OF NEW YORK
x
X
ASPIRE MUSIC GROUP,
GROUP, LLC,
Plaintiff,
Plaintiff, Index No. 652029/2017
65202912017
v.
V Hon. Barry R. Ostrager
Ostrager
Defendants.
ENTERTAINMENT LLC,
YOUNG MONEY ENTERTAINMENT
Counterclaimant,
Counterclaimant,
v
v.
GROUP,
ASPIRE MUSIC GROUP,
:
Counterclaim Defendant.
Defendant. :i
x
X
Attorneys for
Attorneys Pløintiff and Counterclaim Defendant
for Plaintiff
Aspire Music
Aspire Group, LLC
Music Group,
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TABLE OF CONTENTS
CONTENTS
Page(s)
Paqe(sl
I
I. PRELIMINARY STATEMENT 11
il
II. ARGUMENT
ARGUMENT 2
A. Young
A. Young Money's Attempts
Attempts to
to Fabricate
Fabricate aa Payment Term That
That Does
Ðoes Not
Exist in Any of the Contracts It Is Suing
Suing Under Fail.........., ,....,..,....,...22
Under Fail
C Young
C. Money's Counterclaims
Young Money's Counterclaims are
aÍe Also
Also Partially Barred by
by the Statute
Statute
,f
of Limitations.
Limitations. .,,........ 7
III.
III. CONCLUSION
CONCLUSION.... 10
10
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AUTHORITIES
TABLE OF AUTHORITIES
Page(s)
Page(s)
Cases
2138747 Ontario,
2138747 Ontørio, Inc. v. Sømsung
Samsung C & T Corp.,
31 N.y.3d 372 (2018)
3 1 N.Y.3d (201,8) .............. 6
Barrett v.
v, Grenda,
154 ( thDop't
154 A.D.3d 1275 (4th Dep't 2017)
2017). 3J
N.Y. C. Health
N.Y.C, Health &
& Hosps.
Hosps. Corp.
Corp. v. St. Barnabas
Barnabas Hosp.,
10 A.D.3d 489 (1st Dep't 2004)
10 5
Quintas
Quintas v. Pqce
Pace Univ.,
Univ.,
(IstDep't
23 A.D.3d 246 (1st Dep't 2005) 3Ja
Authorities
Other Authorities
CPLR
CPLR 203(d)
203(d) .,...,,2,7,8,9
2, 7, 8, 9
ii
11
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(the'oCounterclaims")
against it (the "Counterclaims") by
by Defendant and
and Counterclaimant
Counterclaimant Young Money
L
I. PRELIMINARY STATEMENT
PRELIMINARY STATEMENT
In an action alleging
alleging breach of a written contract, there is no evidence
evidence more critical
critical than
agreements
agreements referenced in Young
Young Money's This absence
Money's Counterclaims. This of any
absence of any contract
contract
provision
provision granting Young Money the right to receive revenues from the Canadian distribution of
Drake's music
music is
is fatal
fatal to
to all
all of
of Young Money's Counterclaims.
Counterclaims.
together several
several pieces
pieces of
of extrinsic
extrinsic evidence
evidence in
in an
an attempt
attempt to conjure
conjure such
such aa contractual
contractual provision
air. But
out of thin air. But the
the purported
purported evidence
evidence cited
cited in
in Young
Young Money's Opposition
Opposition is precluded by
is precluded
its face.
face. Young
Young Money's
Money'sfocus
focuson
oncertain
certainlegal
legal opinions
opinionscontained in an
contained in affidavit submitted
an affidavit submitted in a
nof aø purty
which he was not
which party cannot amount to party admissions and have no probative
probative value as a
1i
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law. Nor
matter of law. Nor does
doesany
anyof
ofthe
theother purported evidence
other purported evidence cited
cited by
by Young
Young Money
Money make
make up for
ofany
the absence of any actual contractual
contractual duty.
Finally,
Finally, even if Young Money
Money had evidence
evidence to sustain
sustain the
the Counterclaims,
Counterclaims, they
they would be
partially time-barred,
partially time-barred, and Young
Young Money
Money could
could not avail
avail itself
itself of of CPLR
of the benefits of CPLR 203(d)
203 (d) to
justification-to
justification—to bring the Counterclaims in response
Counterclaims in response to Aspire's initial
to Aspire's initial complaint. Moreover,
Moreover,
Aspire's claims.
claims.For
Forall
allofofthese
thesereasons,
reasons,as
asset
setforth
forthin
in more
more detail
detail below, Aspire respectfully
below, Aspire respectfully
requests that the Court grant its motion Young Money's Counterclaims.
dismiss Young
motion to dismiss Counterclaims,
il. ARGUMENT
II. ARGUMENT
A.
A. Young
Youns Money's
Monev's Attempts
Attemnts to Fabricate aa Payment
Payment Term ThatDoes
Term That Not Exist
Does Not
Any of the Contracts
in Any Contracts It Is Suing
Suins Under Fail.
Counterclaims—the
Counterclaims-the Memorandum of ("MOA"), the
of Agreement ("MOA"), Aspire/YME Agreement,
the Aspire/YME Agreement, or
or the
as alleged.
alleged. Young
Young Money
Money does
doesnot
not point
point to
to any
any contract provision in
contract provision in its
its Opposition.
Opposition. Instead,
Instead,
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Barrett v. Grenda,
complaint); Baruett 154 A.D.3d 1275, 1277-78 (4th
Grenda,154 (4th Dep't
Dep't 2017)
2017) (dismissing
(dismissing breach
of contract claims because "Plaintiff was required to set forth in that cause
cause of action . . . the
contractual provision
contractual provision that was breached.")
breached.")
Young
Young Money and Aspire agreed in the MOA "that they shall enter into a distribution
distribution
Affirmation of Alexandra
Affirmation Siegel in Support
Alexandra E. Siegel Support of
of Motion ("Siegel Aff."),
Motion ("Siegel Ex. A
Aff."), Ex. at tf¶ 15.
A at 15. This is
precisely what these parties did by entering into the Universal Canada Agreement,
precisely what Agreement, which Young
Agreement to Universal
the Universal Canada Agreement Motown Republíc
Universøl Motown Republic Group Cash Money's
Group on Cøslt Money's
beltølf. See
behalf. See Siegel Aff., Ex. C at Schedule
Schedule "B" (inducement
(inducement letter in
in which Young
Young Money
Agreement
Agreement and voluntarily consent[ed]
consentfed] to its
its execution and delivery by
by [Aspire]
fAspire] to Universal.").
Universai.").
As established
established on the face of the parties' agreements,
agreements, therefore, the only obiigation
only payment obligation
3aJ
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Agreement
Agreement by executing
executing the Aspire/YME Agreement, which explicitly referenced
referenced the Universal
Canada
Canada Agreement
Agreement and contained no terms reflecting Young Money's purported
reflecting Young purported right to a share
Counterclaims.2
Counterclaims.2 See Siegel Aff.,
,See Siegel Aff., Ex. B at !f¶ 8.07(a). The
The only
only reference
reference to
to any
any payments that
might hypothetically
hypothetically be directed to Young Money
Money is a passing reference
reference to "monies
"monies otherwise
proceeds
proceeds from the Universal Canada Agreement. Nor
CanadaAgreement. Nor can
can such
such an
an interpretation
interpretation be squared
squared with
With
V/ith no language
language in the contract supporting
supporting its claim, Young Money resorts to arguing
that Drake's
Drake's recordings
recordings are
are "works for hire"
"works for hire" for
for the
the benefit
benefit of
of the
the joint venture
venture between Young
Money and Cash Money, and that because Aspire retained only a one-third interest in the
carries
caruies with it the right to only one-third of
of the profits received from the exploitation of those
2 Thus,
2Thus, Young Money's
Money's contention
contention that
that "Aspire
"Aspire isis barred
baned from
from exploiting
exploiting those
those works
works independently
independently without
express written approval" inelevant.There
approval" (Opp. at 7) is irrelevant. There can
can be
be no
no debate
debate thatthat both
both Cash
Cash Money
Money and
and Young
Young Money
expressly
expressly approved
approved Aspire's exploitation
exploitation of of Drake's
Drake's music
music inin Canada
Canada inin the
the MOA,
MOA, thethe Aspire/YME
AspireAlME Agreement,
and, in Young Money's
Money's case,
case, the
the inducement
inducement letter
letter to
to the
the Universal
Universal Canada
Canada Agreement.
Agreement.
3 In the inducement letter
letter Young Money signedsigned with
with regard to the Universal
Universal Canada
Canada Agreement,
Agreement, Young Money
agreed "to be added
added as
as aa direct
direct party
party to the Agreement
Agreement as if Young
as if Young Money had had been
been an
an original
original signatory thereto
jointly
jointly and severally with [Aspire]"
[Aspire]" if Aspire
Aspire is dissolved or
or in
in default. Siegel Aff., Ex. A at Schedule "8."
default. Siegel "B."
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agreements at
at issue
issue unambiguously
unambiguously establish
establish that Young
Young Money agreed
agreed to aa payment structure
structure
The unambiguous language of the contracts at issue establishes that Young Money
Money
expressly agreed
agreed to permit Aspire
Aspire to unilaterally license
license the Canadian
Canadian distribution
distribution rights
rights to
Universal Canada,
Canada, and
and that Aspire's only
only payment
payment obligation
obligation relating
relating to
to that distribution was to
that distribution
pay "Universal
"Universal Motown Republic Group on
Republic Group on Cash Money's behalf."
Cash Money's behalf." Aspire
Aspire therefore
therefore requests
requests
B.
B. Monev's Extrinsic Evidence
Young Money's Evidence Should
Should be Disregarded and
be Disregarded andDoes
Does Not
Suppqrt the
Support tlre Counterclaims
Counter,claims Regardless.
Re,ga4dless.
"[W]here an
an agreement
agreement contains
contains .. .. .. aa merger
merger clause,
clause, extrinsic
extrinsic evidence
evidence that adds
adds to or
A.D.3d 489,
10 A.D.3d (lst Dep't 2004);
490-91 (1st
489,490-91 2004); see also In re Gulf
Gulf Oil/Cities
Oil/Cities Serv. Tender
Tender Offer
Offer Litig.,
725 F. Supp.
Supp. 712,
712,728 (S.D.N.Y. 1989)
728 (S.D.N.Y. ("When contracts
1989) ("When contracts contain integration clauses
contain integration clauses as
as they do
contract, although
although itit may
may be
be admitted
aclmitted to
to interpret
interpret ambiguous
ambiguous terms of
of an
an integrated contract.").
contract.").
The Aspire/YME Agreement includes such clause. See Siegel Aff., Ex. B
such a merger clause. B at
at ¶fl 16.03
16.03
("This agreement
agreement contains
contains the
the entire
entire understanding
understanding of
of the
the parties to its
parties relating to its subject
subject matter
agreement
agreement will be binding unless signed
signed by the party
by the party to be
be charged."). Nevertheless,
Nevertheless, Young
Young
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o'alone warrants denial of [Aspire's] Motion." Opp, at 1. This evidence, however, should clearly
"alone warrants denial fAspire's] Motion." Opp. at 1. This evidence, however, should
clear,
clear, unambiguous,
unambiguous, and integrated contract cannot speak the parties' intent
speak to the intent and
and his
his statement
statement
Feldman,l2I
v. Feldman, 121 A.D.2d 590, 591 (2nd Dep't
Dep't 1986) ("lAln alleged
1986) ("[A]n alleged subsequent
subsequent oral
oral statement
statement by
. . . a nonparty
nonparty to
to the
the contract
contract . .. .isisirrelevant
inelevant in view of
in view of the
the contract's integration clause
contract's integration clause and
and its
[the
fthe parties]
parties] say in their writing") (emphasis added). Further,
(emphasis added). Further, the
the Prince affidavit was
Prince affidavit filed in
was filed
s
affidavit could be deemed an admission of Aspire is therefore utterly absurd. 5
an admission
5 Nor does
5 does Jas
Jas Prince's father
father James
James Prince's
Prince'sagreement
agreement to to fund
fund this
this lawsuit
lawsuit for
for Aspire
Aspire magically
magically transform
transform the
Prince affidavit into an Aspire admission,
admission, despite Young
Young Money's
Money's best best attempts
attempts toto waive
waive its
its hands
hands and
and make it so.
Moreover, that the Prince affidavit
affrdavit was
was proffered
proffered by one
one of of the law
law firms
firms representing
representing Aspire in in this litigation is
this litigation
doubly irrelevant, as
as Profeta
Profeta && Eisenstein
Eisenstein was also not aa party to the underlying agreements and and did
did not
not negotiate
the underlying
underlying agreements on behalf of Aspire. Even Evenifif the
the Prince
Prince affidavit
afhdavit could
could bebe considered statement by
considered aa statement
Profeta
Profeta & Eisenstein—which
Eisenstein-which itit cannot—a
cannot-a statement
statement by an an attorney
attorney who was was not representing
representing Aspire
Aspire in in another
another case
cannot be deemed an admission Aspire. See, e.g., Bellino
admission by Aspire. Bellinov. v. Bellino Const.
Const. Co., 75 A.D.2d 630, 630 (2nd
Co.,75 (2nd Dep't
1980)
1980) ("Admissions
("Admissions by counsel . . are . areadmissible
admissible against
againstaapar',y
party provided
provided that
that the
the statements
statements had
had been
been made
made by the
attorney while acting
øcling in
ìn his
hÌs authorized capacity;') (emphasis added).
&uthorized capacity.") added),
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Young Money's
Young Money's other
other evidence,
evidence, even if itit could
even if could properly be
be considered,
considered, is equally
unavailing. Indeed,
Indeed, Young
Young Money's contention
contention that aanonparty's discovery request
nonparty's discovery reqaest in a different
atI3-I4.
at 13-14. Nor
Nor is
is the
the testimony
testimony of
of Ronald Sweeney-Young Money's
Ronald Sweeney—Young øttornøy, who has a
Money's own attorney,
documented history
history of interfering
interfering in this litigation to benefit Young
this litigation Young Money at Aspire's
Money at Aspire's
detriment, potentially stands to gain if Young Money prevails in this litigation (see
detriment, and who potentially
Aff., Ex.
King Aff., Ex.44 at
at 10:18-11:21)—at
10:18-11:21)-at all 14. And
all probative. See Opp. at 14. finally, Young Money's
And finally, Money's
II,2017
focus on the January 11, 2017 Complaint filed by Aspire against Cash Money is misplaced. See
C.
C. Young Money's Counterclaims
Youns Monevts o Partiallv
Counterclaims are Also Partially Barred by of
bv the Statute of
Limitatigls.
Limitations.
Money's attempt
attempt to
to evade
evade the partial bar
the partial bar on
on its
its Counterclaims
Counterclaims imposed by the statute
statute of
limitations
limitations is fruitless, for several
several reasons. First,
First, Young
Young Money filed its
Money filed initial answer to
its initial
initial complaint
Aspire's initial complaint on
on June
June 27, 2017, at
27,2011, which time itit failed
at which failed to assert
assert the Counterclaims
Counterclaims
and therefore
therefore failed
failed to secure itself of
of the
the benefits
benefits of CPLR 203(d).
of CPLR "fA]lthough the tolling
203(d). "[A]lthough
provision
provision of subsection 203(d) clearly applies counterclaims asserted in
applies to counterclaims in a defendant's
defendant's initial
counterclaims asserted
asserted in
in subsequent
subsequent pleadings filedby
pleadingsfiled byaadefendant - i.e., either in an answer
defendant— ønswer to
71
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an
&n amended compløinl or in an amended
omended complaint amended answer to the original complaint." Rosenfeld of
Rosenfeld v. City of
"applies to counterclaims
counterclaims but does not mention amended pleadings").
mention amended pleadings"). Because
Because Young Money
cannot belatedly
belatedly invoke CPLR
CPLR 203(d)
203(d) now.
offset
offset provision of that statute because its Counterclaims
Counterclaims do not arise
arise from the same transactions
or occurrences as
as Aspire's claims.
claims. Young
YoungMoney
Money nevertheless
nevertheless attempts to support
attempts to support its invocation
its invocation
transactions, occurrences, or
transactions, occurrences, or series
series of
oftransactions
transactionsororoccurrences"'
occurrences" as Aspire's claims. Opp.
as Aspire's Opp. at
at
landlord brought
brought a "defense" seeking
seeking reformation
reformation of the lease, "grounded on
on allegations
allegations as to the
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performance
performance under the contract[,]
contractf,] the landlord's relates
relates to
to the
the negotiation
negotiation and
and articulation
articulation of the
position is
Here, Young Money's position is rebutted
rebutted by
by the
the language
language of Aspire/YME
of the Aspire/YME
Aspire's purported
purported division
division of profits from
of profits from the
the Universal
Universal Canada Agreement. See Siegel Aff.,
7 See
Agreement .7
Territory") ,\1114.44
Territory"), 14.44 (defining
(defining "Teritory" as o'the
"Territory" as "the Universe
Universe excluding
excluding Canada"),
Canada"). Furthermore,
Furthermore, as
performance
performance (or,
(or, more
more particularly, lack
lack thereof) under
under the Aspire/YME Agreement, Young
Young
Money's
Money's claims
claims relate
relate to
to the
the intention
intention of
of the
the parties prior to
parties prior to the
the execution
execution of
of the Aspire/YME
the Aspire/YME
Agreement
Agreement with respect to the sharing
sharing of profits for Canadian distribution.s Under
Canadian distribution.8 Under the
the precedent
precedent
6
6 At the time,
time, subdivision
subdivision (c)
(c) of
of CPLR
CPLR 203,
203, like
like present-day
present-day CPLR
CPLR 203(d),
203(d), "exclude[d]
"exclude[d] from
from the
the bar
bar of
of limitations,
limitations,
but only to the extent of plaintiffs claim,
of plaintiffs claim, counterclaims even ifif they
counterclaims even they would
would have
have been
been barred
barred at
at the
the time
time of
of the
commencement
commencement of of the action,
action, provided that the counterclaim be one that 'arose from from the
the transactions,
transactions, occurrences,
occurrences,
or series of transactions
transactions or occurrences,
occuffences, upon which a claim
upon which claim assefied
asserted in in the
the complaint depends.'" SCM Corp., 40
complaint depends."'
N.Y.2d atat79l.
791.
7 Young
Young Money's
Money's assertion
asseftion that
that there
there isis "no
"no language
language inin the
the [Aspire/YME]
[Aspire/YME] Agreement
Agreement that
that grants
grants to
to Aspire
Aspire two-
thirds of
of the net profits
profrts or
or proceeds
proceeds from
from distribution
distribution of
of Drake
Drake albums
albums in (Counterclaims at
in Canada" (Counterclaims at ¶tf 13)
13) is thus far
beyond the point, asas the Aspire/YME
Aspire/YME Agreement
Agreement on on its
its face
face does
does not
not and
and was not intended
intended to apply split of
apply to the split
revenues from
from such Canadian
Canadian distribution.
distribution.
88 As
As Young
Young Money admits,
admits, the Universal
Universal Canada
Canada Agreement was
was executed before
before the Aspire/YME Agreemen| See
Aspire/YME Agreement.
Opp. atat 8,
8, fn.7.
fu.7.
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established
established by the Court of Appeals, Young Money's
Money's Counterclaims
Counterclaims therefore plainly do not
therefore plainly
initial complaint,
Aspire's initial complaint, and
and because
because the
the Counterclaims
Counterclaims do
do not
not relate to
to the same
same transactions
barred
barred to the extent they
they accrued 17,2012-six
accrued before August 17, filing of the
2012—six years before the filing
recovery.
III. CONCLUSION
III. CONCLUSION
Young Money's
For the reasons set forth above, Aspire requests that Young Money's Counterclaims
Counterclaims be
6,2018
Dated: December 6, 2018
Los Angeles,
Angeles, CA
BENSON TORRES LLP
KASOWITZ BENSON
/, r/--
By.
By:
Marc E. Kasowitz (mkasowitz@kasowitz.com)
(mkasowitz @kasowitz.com)
1633
1633 Broadway
New York, 100i9
York, New York 10019
Telephone: (212) 506-1700
506-17 00
(berlinski@kasowitz.com)
John V. Berlinski (jberlinski@kasowitz.com)
Daniel A. Saunders (dsaunders@kasowitz.com)
(dsaunders@kasowitz.com)
Alexandra
Alexandra E.
E, Siegel (asiegel@kasowitz.com)
(asiegel@kasowitz.com)
2029
2029 Century
Century Park East, Suite
Suite 2000
Los Angeles,
Angeles, California 90067
Telephone: (424) 288-7900
288 -7 900
Admitted pro
Admitted pro hac
hqc vice
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& EISENSTEIN
PROFETA & EISENSTEIN
Jethro
Jeth¡o Eisenstein (jethro19@gmail.com)
(¡etfu o 19 @gmail. com)
pel6l6@gmail.com
pe1616@gmail.com
45 Broadway
New York,
York, NY 10006
10006
Telephone: (212)
(212) 577-6500
577 -6500
Attorneys for
Attorneys Plaintffi
for Plaintiffs
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11
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