Opinion
13322-13322A Index No. 651974/18 Case Nos. 2019-04315 2020-01781
03-11-2021
Jacob Kasher HINDLIN, Plaintiff–Appellant, v. PRESCRIPTION SONGS LLC et al., Defendants, Advanced Alternative Media, Inc. et al., Defendants–Respondents.
Foster Garvey P.C., New York ( Andrew J. Goodman of counsel), for appellant. Ganfer Shore Leeds & Zauderer LLP, New York ( Mark C. Zauderer of counsel), for respondents.
Foster Garvey P.C., New York ( Andrew J. Goodman of counsel), for appellant.
Ganfer Shore Leeds & Zauderer LLP, New York ( Mark C. Zauderer of counsel), for respondents.
Webber, J.P., Kern, Scarpulla, Mendez, JJ.
Judgment, Supreme Court, New York County (Andrea Masley, J.), entered October 17, 2019, dismissing the complaint as against defendants Advanced Alternative Media and Mark Beaven (AAM defendants), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 2, 2019, which granted said defendants 3211(a)(1) and (7) motion to dismiss the complaint as against them, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court properly dismissed the negligence and breach of fiduciary duty claims, as plaintiff failed to allege any breach of duty independent of the parties’ management agreement ( see Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992] ). Even assuming the truth of plaintiff's allegation that there was a conflict of interest in light of the AAM defendants’ management of and business dealings with Prescription Songs LLC, the documentary evidence shows that plaintiff knew of that potential conflict and waived it ( see e.g. Centennial Ins. Co. v. Apple Bldrs. & Renovators, Inc., 60 A.D.3d 506, 506, 875 N.Y.S.2d 466 [1st Dept. 2009] ).
We have considered plaintiff's remaining arguments and find them unavailing.