Opinion
May 29, 2001.
Order, Supreme Court, New York County (Herman Cahn, J.), entered March 1, 2000, which granted the motion of defendants-respondents to dismiss the complaint pursuant to CPLR 3211, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.
James P. Cinque, for plaintiffs-appellants.
James E. Doherty, Steven M. Hayes Robert A. Jacobs, for defendants-respondents.
Before: Rosenberger, J.P., Andrias, Wallach, Rubin, Buckley, JJ.
In August 1988, a singing group known as The New Style and its constituent individuals, Vincent Brown, Kei Gist and Anthony Cris, signed a recording agreement with Bon Ami Entertainment. In February 1989, Brown, Gist and Cris entered into an exclusive song writing agreement with Renaissance Music for a period of five years which, among other things: bound the writers individually and jointly; bound each of the writers to refrain from writing any compositions under any name than his own; and, granted Renaissance the right to enter into a subsequent co-publishing or administration agreement. In October 1989, Renaissance entered into a co-publishing agreement with plaintiff George Kerr, doing business as We saline Music, which provided for 50-50 publishing sharing between Renaissance and Kerr/We saline as well as a right by Kerr/We saline to administer all publishing worldwide of the artist described in their agreement. The artist was described in the Renaissance-Kerr/We saline agreement as "the artist p/k/a M.C. Unique, The New Style and The Furious . . . individually and collectively." The p/k/a designation identified the artist "presently known as" and allowed for the ready ascertainment of Brown, Gist and Cris as "the artist." Brown, Gist and Cris later changed their group name to Naughty by Nature and released songs on a different recording label, Warner Bros. Prior to doing so, they received a release from their obligations under the recording agreement with Bon Ami. They never obtained a release from Renaissance of their publishing obligations. In the present action, Kerr claims that he was assigned an interest in all compositions by The New Style, including those written individually by Brown, Gist and Cris as well as those written by those three under a different name, by virtue of the co-publishing agreement with Renaissance.
The IAS court erred in granting defendants' motion to dismiss on the basis that Kerr had failed to allege the existence of an agreement granting the right to ownership of Brown, Gist and Cris's musical compositions. On a motion to dismiss, the pleadings must be liberally construed (Leon v. Martinez, 84 N.Y.2d 83, 87). The Renaissance-Kerr agreement clearly constituted an assignment of rights to publishing royalties and administration of compositions authored by the "artist" and its constituent members, individually or collectively. That Brown, Gist and Cris subsequently assumed a different stage name did not thereby deprive Kerr of his assigned property interest in their authored compositions, individually or collectively. Kerr alleged facts sufficient to establish an assignment of publishing rights by Renaissance to him (see, Whaled v. Gerzof, 206 A.D.2d 688, lv denied 84 N.Y.2d 809). Having made sufficient allegations of assignment, Kerr has standing to assert the assignor's claims and is a real party in interest (Kahn v. New York Times Co., 122 A.D.2d 655; Hill v. Satra Corp., 65 A.D.2d 737).
Although not addressed by the IAS court, defendants argue that the breach of contract claims are untimely since the breach of the song writing agreement occurred on August 20, 1991 when they signed a publishing agreement with Tommy Boy Music, more than six years prior to commencement of this action in 1998. Plaintiff is correct that individual breaches start the Statute of Limitations running anew each time (Bulova Watch Co. v. Celotex Corp, 46 N.Y.2d 606, 608). Since each song has a different publication date, each would be separately actionable. Accordingly, it would be premature to determine which claims may be time barred, if any, at the pleading stage. By the same token, it is premature to determine whether any of the defendants should be estopped from raising a Statute of Limitation defense on equitable grounds.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.