You are on page 1of 14

FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO.

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

MONEY RECORDS, INC., YOUNG


CASH MONEY YOLING Motion Sequence
Sequence No. 009
MONEY ENTERTAINMENT,
MONEY ENTERTAINMENT, LLC,
LLC, YOUNG
YOLTNG
MONEY ENTERTAINMENT, aa joint venture,
MONEY ENTERTAINMENT, venture,
WILIAMS, RONALD
BRYAN "BABY" WILLIAMS, RONALD
WILLIAMS and UMG
"SLIM" WILLIAMS
RECORDINGS,
RECORDINGS, INC.,

Defendants.

ENTERTAINMENT LLC,
YOUNG MONEY ENTERTAINMENT

Counterclaimant,
Counterclaimant,

v
v.

GROUP,
ASPIRE MUSIC GROUP,
:

Counterclaim Defendant.
Defendant. :i
x
X

ASPIRE MUSIC GROUP, LLC'S REPLY MEMORANDUM OF


LA IN FURTHER SUPPORT
LAW SUPPO MOTI
OF ITS MOTION TO DISMISS
YOUNG MONEY ENTERTAINMENT, LLC'S COUNTERCLAIMS

KASOV/ITZ BENSON TORRES LLP


KASOWITZ LLP PROFETA & EISENSTEIN
EISENSTEIN
Marc E. Kasowitz (mkasowitz@kasowitz.com) (ethro 1 9@gmail.com)
Jethro Eisenstein (jethro19@gmail.cotn)
1633
1633 Broadway 45 Broadway
New York, NY 10019
10019 New York, NY 10006
10006
Telephone:
Telephone : (212) 506-1700
506- I 700 Telephone: (212)
(212) 577-6500
577 -6500

John V. Berlinski (jberlinski@kasowitz.com)


Berlinski (jberlinski@kasowitz.corn)
Daniel A. Saunders
Saunders (dsaunders@kasowitz.com)
(dsaunders@kasowitz.com)
Alexandra E. Siegel
Siegel (asiegel@kasowitz.corn)
(asiegel@kasowitz.com)
2029
2029 Century
Century Park East, Suite 2000
Los Angeles,
Angeles, CA 90067
Telephone:
Telephone : (424) 288-7900
288 -7 9 00
Admitted pro hac vice
Admitted

Attorneys for
Attorneys Pløintiff and Counterclaim Defendant
for Plaintiff
Aspire Music
Aspire Group, LLC
Music Group,

1 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

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

B. Young Money's Extrinsic


B. Extrinsic Evidence
Evidonce Should
Should be Disregarded
Disregardçd and
and Does Not
Support the Counterclaims
Counterclaims Regardless.
Regardless 55

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

2 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

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

Am. Stock Exch., LLC v. Mopex, Inc.,


230 F.
F . Supp. 2d 333 (S.D.N.Y. 2002)
333 (S.D.N.Y. 2002)... 88

Barrett v.
v, Grenda,
154 ( thDop't
154 A.D.3d 1275 (4th Dep't 2017)
2017). 3J

Bellino v. Bellino Const.


Const. Co.,
Co,,
A.D.zd630
75 A.D.2d 630 (2ndDep't
(2nd Dep't 1980)
1980) 6

Chun Hye Kang-Kim


Kang-Kimv.v. Feldman,
Feldman,
I2I A.D2d
121 (2nd Dep't 1986)
A.D.2d 590 (2nd 1986) 6

Coleman, Grasso &


& Zasada
Zasøda Appraisals Inc. v. Coleman,
Coleman,
246 A.D.2d 893,
893, 894
894 (1998) 88

In re Gulf Oil/Cities Offer Litig.,


Oil/Cities Serv. Tender Offer
72sF.
725 F. Supp. (S.D.N.Y. 1989)
712 (S.D.N.Y.
Supp.712 1989) 5

Modern Art Servs., LLC v. Fin. Guar.


Modern Guar. Ins. Co.,
161 A.D.3d 618 (1st
161 (1st Dep't 2018) 2

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

Rosenfeld v. City of New York,


Rosenfeldv. York,
No. 06CV1979ERKVVP,
06CV1979ERKVVP, 2009 2009 WL 10701874
10701874 (E.D.N.Y. 1 1,2009)
(E.D.N.Y. Jan. 11, 2009) 8I

SCM Corp. v. Fisher Park


Park Lane Co.,
(r976)
40 N.Y.2d 788 (1976) 8,99
8,

Authorities
Other Authorities

CPLR
CPLR 203(d)
203(d) .,...,,2,7,8,9
2, 7, 8, 9

11 Nimmer on Copyright §$ 6.12 (2018)


(2018) 5

ii
11

3 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

Plaintiff and Counterclaim


Counterclaim Defendant Aspire Music Group, LLC ("Aspire") respectfully
respectfully

submits this reply


reply in support
support of (the'oMotion")
of its Motion to Dismiss (the "Motion") the
the counterclaims
counterclaims asserted
asserted

(the'oCounterclaims")
against it (the "Counterclaims") by
by Defendant and
and Counterclaimant
Counterclaimant Young Money

Entertainment, ("Young Money").


Entertainment, LLC ("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

the language of the contract


contract itself. But
But here,
here, Young
Young Money's
Money's Opposition
Opposition (the
(the "Opposition"
"Opposition" or
or

"Opp.") to Aspire's Motion would


Aspire's Motion would have
have the
the Court
Court look everywhere except the contract at
look everywhere at issue.

That is because Counterclaims-that Aspire


because the underlying premise of Young Money's Counterclaims—that Aspire breached
breached

a contractual profits from exploitation


contractual obligation to pay Young Money one-third of the profits exploitation of

Aubrey "Drake" Graham's


AubreyooDrake" Graham's music
music in Canada-is not
in Canada—is not supported
supported by
by the
the contract
contract Young Money
Young Money

alleges Aspire has breached (the


(the "Aspire/YME
"AspireiYME Agreement"), or,
or, for
for that matter,
matter, any
any of
of the other

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.

As a "hail Mary" play


play at
at saving
saving its
its Counterclaims,
Counterclaims, Young
Young Money nevertheless
nevertheless cobbles
cobbles

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

the merger clause


clause in
in the Aspire/YME
Aspire/YME Agreement, and in any
and in any event
event it is utterly unpersuasive
unpersuasive on

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

separate action by non-lawyer and


and non-party
non-party Jas Prince is particularly desperate; as set forth
is particularly

below, Prince's statements


statements in
in an
an action
action in ødverse to Aspire about aa contract
in which he was adverse contract to

nof aø purty
which he was not
which party cannot amount to party admissions and have no probative
probative value as a

1i

4 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

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

toll the statute


statute of limitations on
on these Counterclaims failed-without any
Counterclaims because it failed—without

justification-to
justification—to bring the Counterclaims in response
Counterclaims in response to Aspire's initial
to Aspire's initial complaint. Moreover,
Moreover,

Young Money's Counterclaims


Counterclaims do
do not
not arise
arise from
from the
the same
same transactions
transactions or occurrences
occuffences as

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.

"[T]he best evidence of


of the parties' intent
intent is Modern Art
is what they say in their writing." Modern

Servs., LLC v. Fin. Guar.


Guar. Ins. Co., 161 A.D.3d
Co.,161 A.D.3d 618, 618 (1st Dep't 2018) (quotation omitted)
2018) (quotation omitted)

(affirming dismissal contract claim). Here,


dismissal of breach of contract Here, the written agreements
the written agreements at
at issue

conclusively Young Money's Counterclaims.


conclusively bar Young Not one
Counterclaims. Not oneof
of the
the agreements
agreements referenced
referenced in the

Counterclaims—the
Counterclaims-the Memorandum of ("MOA"), the
of Agreement ("MOA"), Aspire/YME Agreement,
the Aspire/YME Agreement, or
or the

Universal Canada Agreement—contains any provision entitling


CanadaAgreement-contains entitling Young any amount of
Young Money to any

the profits from the exploitation of


of Drake's music in Canada,
music in Canada, much
much less
less one-third of the profits,
one-third of

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,

Young Money argues that none of "preclude the Counterclaims."


agreements "preclude
of these agreements Counterclaims." Opp. at 10
Opp. at 10

(emphasis added). This


This position
position is, course, absurd.
is, of course, absurd. The
Theissue
issueisis not
not whether
whether the
the parties
parties

reached an agreement Counterclaims, but rather, whether thefully


agreement precluding the Counterclaims, the fully integrated
integrøted

øgreements at issue provide


agreements provide any support
support for Young Money's
for Young Money's Counterclaims. They
They do
do not
not and
and

5 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

therefore Young Money


Money cannot state a claim.l
claim.' See, e.g., Quintas
Quintas v. Pace Univ., A.D.3d246,
23 A.D.3d
Univ.,23 246,

(lst Dep't 2005)


247 (1st (affirming dismissal
2005) (affirming dismissal of
of breach of contract claim where "[p]laintiff did not

identify any contractual


contractual provision" obligating defendant
defendant to perform obligation alleged
alieged in

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

identiff the particular


provisions of the contract upon which the claim was based," but "failed to identify

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

agreement with Universal


agreement Universal Canada for
for the distribution of Artist's
distribution of Artist's recordings
recordings in Canada."

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

Money specifically fiilly aware that that agreement


specifically approved, fully agreement only provides for payments to

Aspire, subject only


only to Aspire's promise
promise to
to direct
direct one-third
one-third of
of the
the proceeds payable
payable to it under

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

"confirm[ed] that itit has


has received
received and
and read the
the Agreement and approve[d]
approve[d] of
of the terms of the

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

connection with Canadian


Aspire had in connection distribution of
Canadian distribution of Drake's recordings was to "Universal
"Universal

Motown Republic Group


Motown Republic Group on Cash
Cash Money's
Money's behalf."

I These flaws are equally fatal to Young Money's causes


causes of
of action
action for
for declaratory
declaratory relief
relief and
and an
an accounting,
accounting, which
are grounded
grounded entirely
entirely in the allegations underlying Young
allegations underlying Money's breach of
Young Money's of contract
contract claim,
claim, and
and thus rise and fall
and fall
with that claim.

3aJ

6 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

Young Money also reaffirmed its consent


consent to the terms of the Universal Canada
Canada

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

of the profits therefrom,


therefrom, let alone the one-third interest
interest that Young Money has pled in the

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

payable to Young Money and [Aspire]."


fAspire]." But
But that
that passing
passing reference
reference simply
simply covers
covers a potential

future scenario where Young Money might receive payments3-it clearly


receive payments3—it clearly does not create an

obligation on the part of Aspire to pay Young


Young Money,
Money, as it contends, aa one-third
one-third interest in the

proceeds
proceeds from the Universal Canada Agreement. Nor
CanadaAgreement. Nor can
can such
such an
an interpretation
interpretation be squared
squared with

the Aspire/YME Agreement's explicit reference


Agreement's explicit reference to
to the
the then-existing Universal
Universal Canada

Agreement, which does not provide that any


Agreement, øny monies are payable to Young Money.
Money.

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

copyright to Drake's music,


music, "the
"the allocation
allocation of
of ownership
ownership to Aspire
Aspire in
in the
the Drake
Drake recordings

carries
caruies with it the right to only one-third of
of the profits received from the exploitation of those

recordings, including in Canada." Opp.


recordings, including Opp. at 3.But
at 3. Butnotwithstanding
notwithstanding the
the default
default rules
rules set
set forth

law-which is not the law


under copyright law—which law governing
governing this pure breach of
of contract action-the
contract action—the

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."

7 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

agreements at
at issue
issue unambiguously
unambiguously establish
establish that Young
Young Money agreed
agreed to aa payment structure
structure

under which Aspire received two-thirds of the profits from Canadian


Canadian distribution.4
distribution.a

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

that the Court


Court grant its motion to dismiss Young Money's claims
claims in their entirety.
entirety.

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

varies its terms should [be] NYC. Health


[be] precluded[.]" N.Y.C. Health&&Hasps. Corp.v.v.St.
Hosps.Corp. St. Barnabas
Bqrnabas Hosp.,
Hosp.,

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

here, extrinsic evidence


evidence may
may not be admitted
admitted to prove different
different or additional terms in
in the

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

and supersedes all


all prior or
or contemporaneous
contemporaneous written or
or oral
oral agreements,
agreements, representations,
representations,

understandings and/or discussions between the


discussions between the parties
parties relating
relating thereto.
thereto. No change
change of
of this

agreement
agreement will be binding unless signed
signed by the party
by the party to be
be charged."). Nevertheless,
Nevertheless, Young
Young

a Even if copyright law applied to the breach of


4 if copyright law applied to the breach of contract
contract claims
claims brought
brought by by Young Money-which itit does
Young Money—which not-a
does not—a
copyright
copyright owner may by contract ,See 11 Nimmer on Copyright
waive its rights. See
contract waive ("[N]o accounting
Copyright §$ 6.12 (2018) ("[N]o accounting is
available between joint authors
authors who have explicitly remedy."). Notwithstanding
explicitly waived that remedy."). Notwithstanding such right as
such right as Young
Money may have
have otherwise
otherwise had
had as
as copyright
copyright owner,
owner, the
the agreements
agreements at
at issue
issue conclusively
conclusively show
show that
that Young
Young Money
agreed to Aspire's
Aspire's receiving
receiving two-thirds
two-thirds of
of the
the profits
profrts from
from Canadian
Canadian distribution.
distribution.

55

8 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

Money submits various pieces of


of extrinsic evidence in an
an attempt
attempt to invent a nonexistent

payment term entitling Young Money


Money to one-third of
of the Canada
Canada profits.

For example, Young Money


Money contends that certain
certain legal
legal opinions in an
an affidavit
affrdavit submitted
submitted

in another Prince-a layperson


another action by Jas Prince—a Agreement-
layperson and nonparty to the Aspire/YME Agreement—

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

be disregarded light of the Aspire/YME


clisregarded in light Aspire/YME Agreement's
Agreement's integration
integration clause. Moreover,
Moreover, even if
even if

extrinsic evidence were proper or necessary


nesessary (which it is
is not), a person who is
is not aa party to a

clear,
clear, unambiguous,
unambiguous, and integrated contract cannot speak the parties' intent
speak to the intent and
and his
his statement
statement

is therefore completely irrelevant terms. See Chun


interpreting the contract's terms.
irrelevant to interpreting Chun Hye Kang-Kim

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

clear and unambiguous


unambiguous language."); 2138747 Ontario, Inc. v. Samsung C & T Corp.,
language.");2138747 31 N.Y.3d
Corp,,31

372, 377 (2018) (stating that itit is


372,377 is a "fundamental, neutral
neutral precept
precept of contract interpretation
interpretation ... that

accord with the pørtíes'


in accord
agreements are construed in parties' intent," the best evidence of which is "what
is'owhat

[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

connection with an action in which he was adverse


connection to Aspìre.
ødverse to ,9ee Affirmation of
Aspire. See of Howard E.

("King Aff.'), Ex. 11 at ¶fl 1.


King in Opposition to Motion ("King 1. The
The notion
notion that
that anything in the
anything in the Prince
Prince

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),

9 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

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

ridiculous. See Opp.


litigation somehow bears upon the meaning of the contracts at issue here is ridiculous.

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

id. That complaint alleged


id. alleged that Cash Money failed to pay Aspire the one-third profits
one-third share of profits

that was due to Aspire from exploitation


exploitation of Drake's music in the
music in territory of
the territory of the Aspire/YME

Agreement, Universe excluding


defined as "the Universe
Agreement, defined excludíng Canada." ,See Siegel
Canøds." See Siegel Aff., Ex. B at ¶
fl 14.44.
14.44.

That Aspire did not make "any distinction


distinction regarding exploitation being a higher share [sic]
[sic] to

Aspire for Drake


Drake recordings
recordings in Canada" (Opp. at 14) beside the point,
14) is beside because Aspire's
point, because Aspire's profit

share with regard to Canada was irrelevant


irrelevant to the claims in that proceeding.

C.
C. Young Money's Counterclaims
Youns Monevts o Partiallv
Counterclaims are Also Partially Barred by of
bv the Statute of
Limitatigls.
Limitations.

Even if Young Money's


Money's Counterclaims
Counterclaims had any
any merit—which not-Young
merit-which they do not—Young

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

answer to the original complaint, courts applicable to


courts have typically not considered it to be applicable

counterclaims asserted
asserted in
in subsequent
subsequent pleadings filedby
pleadingsfiled byaadefendant - i.e., either in an answer
defendant— ønswer to

71

10 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

an
&n amended compløinl or in an amended
omended complaint amended answer to the original complaint." Rosenfeld of
Rosenfeld v. City of

New York, No. 06CV1979ERKVVP, 2009 WL 10701874,


06CV1979ERKVVP,2009 *3 (E.D.N.Y.
10701874, at *3 (E.D.N.Y. Jan. 11,2009)
Jan. 11, 2009)

(emphasis added); see also


(emphasis added); Mopex, lnc.,230
also Am. Stock Exch., LLC v. Mopex, 2d333,336
Inc., 230 F. Supp. 2d 333, 336

(S.D.N.Y. 2002) ("Mopex could


2002) ("Mopex could have
have asserted
asserted its trade secret claims pursuant
pursuant to Section 203(d)

on September 14, 2000, at the time of its


14,2000, its original
original answer and counterclaim,
counterclaim, even if those claims

were otherwise time-barred.


time-bared. .. .. .. When it chose
V/hen it chose not to do so, it gave
gave up the claim-saving
claim-saving benefits

203(d)."), citing Coleman, Grasso


of Section 203(d)."), Grasso &
& Zasada
Zasada Appraisals Inc. v. Coleman, 246 A.D.2d
Coleman,246

893, 894 (1998) (counterclaim asserted


asserted in
in amended
amended answer was not timely because CPLR 203(d)

"applies to counterclaims
counterclaims but does not mention amended pleadings").
mention amended pleadings"). Because
Because Young Money

could have asserted


asserted the Counterclaims time itit first
Counterclaims at the time first answered
answered Aspire's initial complaint, it

cannot belatedly
belatedly invoke CPLR
CPLR 203(d)
203(d) now.

Even if CPLR 203(d)


203(d) did apply, Young stillbe
would still
Young Money would be unable
unable to avail itself of the

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

of CPLR 203(d)'s offset


ofßet provision
provision with
with the
the wholly
wholly conclusory
conclusory declaration
declaration that
that "[t]here can
can be no

honest argument that


that the claims
claims regarding Canada profits did
Canadaprofits did not . . . 'arise from the same

transactions, occurrences, or
transactions, occurrences, or series
series of
oftransactions
transactionsororoccurrences"'
occurrences" as Aspire's claims. Opp.
as Aspire's Opp. at
at

18, quoting CPLR


18, But aa review of SCM Corp.
CPLR 203(d). But Corp. v. Fisher Park Lane Co., 40 N.Y.2d 788
Co.,40

(I976) reveals this unsubstantiated statement


(1976) to be false. There,
statement to There, aa tenant
tenant brought claims seeking
brought claims seeking

o'predicated on acts of the landlord related to, or by which it


aa refund for overpayment of rent, "predicated on

computed and assessed, escalations of rent after the term


after the term of at79l.
of the lease[.]" Id. at 791. The
The

landlord brought
brought a "defense" seeking
seeking reformation
reformation of the lease, "grounded on
on allegations
allegations as to the

intention of the contracting to and


contracting parties prior to and at the time the lease was executed
atthe executed with respect to

11 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

the proportionate share of electrical expense


expense to be borne by the
borne by tenant." Id. at
the tenant." at790,791-92. The
790, 791-92. The

Court of Appeals concluded that these actions did


did not
not arise
arise from the same
same transactions
transactions or

occurrences as required under CPLR 203(d), because "[t]he tenant's


because while "[t]he tenant's claim
claim relates
relates to

performance
performance under the contract[,]
contractf,] the landlord's relates
relates to
to the
the negotiation
negotiation and
and articulation
articulation of the

agreement between the parties prior


agreement made between at792.
prior to its execution." Id. at "While in
792. "While in aa most
most general
general

sense both might be said


said to be
be associated
associated with the lease,
lease, in of [former]
in the language of [former] CPLR
CPLR 203

(subd. (c)[61), same transactions or occurrences."


(c)t0t;, the claims do not arise out of the same occurrences." Id.

position is
Here, Young Money's position is rebutted
rebutted by
by the
the language
language of Aspire/YME
of the Aspire/YME

Agreement, which expressly excludes from its purview Canadian


Agreement, Canadian distribution and
and references the

Universal Canada Agreement without


CanadaAgreement without including
including any terms relating to Young Money's and
terms relating and

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

Ex. B at ¶tf 1.01


1.01 (furnishing Drake's recording
recording services
services to
to the YME Joint Venture "in
'oin the

Territory") ,\1114.44
Territory"), 14.44 (defining
(defining "Teritory" as o'the
"Territory" as "the Universe
Universe excluding
excluding Canada"),
Canada"). Furthermore,
Furthermore, as

Young Money's and Cash


Corp. case, while Aspire's claims arise out of Young
in the SCM Corp. Cash Money's
Money's

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.

12 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

established
established by the Court of Appeals, Young Money's
Money's Counterclaims
Counterclaims therefore plainly do not
therefore plainly

arise out of the same transactions or occurrences as


as Aspire's claims.
claims.

Because Young Money


Money failed to timely interpose
interpose its
its Counterclaims in response
Counterclaims in response to

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

or occurrences underlying Aspire's claims,


occurrences underlying claims, Young
Young Money's Counterclaims
Counterclaims are
are at minimum time-
at minimum

barred
barred to the extent they
they accrued 17,2012-six
accrued before August 17, filing of the
2012—six years before the filing

Counterclaims—regardless affirmative relief or set-off against


Counterclaims-regardless of whether they seek affirmative against Aspire'
Aspire'ss

recovery.

III. CONCLUSION
III. CONCLUSION

Young Money's
For the reasons set forth above, Aspire requests that Young Money's Counterclaims
Counterclaims be

dismissed in their entirety and


and with prejudice.
prejudice.

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

10
10

13 of 14
FILED: NEW YORK COUNTY CLERK 12/06/2018 06:05 PM INDEX NO. 652029/2017
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 12/06/2018

& 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

11
11

14 of 14