Opinion
May 30, 1995
Appeal from the Supreme Court, Rockland County (Bergerman, J.).
Ordered that the order is modified, on the law, by (1) dismissing so much of the first cause of action as seeks to recover damages for royalties earned on covered recordings prior to August 1, 1987, and (2) dismissing the second cause of action; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff, a rock-and-roll singer, sued the defendants in July of 1993, claiming that she is owed royalties for recordings she made for the defendant Phil Spector and his companies pursuant to a contract that she signed with him in the presence of his attorney, Martin Machat, in 1962. The plaintiff no longer has a copy of this contract. The defendants, who insist that no such contract ever existed, moved to dismiss the complaint on various grounds, including the Statute of Frauds, Statute of Limitations, laches, and payment. The court denied the motion.
The instant action is not barred by the Statute of Frauds, since the plaintiff is entitled to the opportunity to prove, if she can, the existence and the contents of the lost writing "by parol and circumstantial evidence" (Taft v Equitable Life Assur. Socy., 173 A.D.2d 267, 268; see also, Schwartz v Greenberg, 199 Misc. 117; Matter of Bernard, 176 Misc. 132, 134; Goodman v Goodman, 143 Misc. 136).
Moreover, the defendants may not raise laches as a bar to the plaintiff's recovery. They have failed to carry their burden of showing that they have been prejudiced by the plaintiff's admittedly lengthy delay in commencing her action. That is, they have failed to demonstrate "reliance and change of position resulting from delay" (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 A.D.2d 68, 82; see also, Macon v Arnlie Realty Co., 207 A.D.2d 268; Glenesk v Guidance Realty Corp., 36 A.D.2d 852, 853). The only prejudice identified by the defendants is the death in 1988 of Martin Machat, who therefore cannot testify that he did not represent any of the defendants for nearly 10 years after the alleged contract was signed. However, the defendants have ample documentary evidence, some of which they have already presented in support of their motion, of when Machat began to work for them, so that the prejudice claimed is more apparent than real.
The court may not dismiss the complaint before any discovery has taken place on the ground that the plaintiff has already been paid for her performances as a session singer (see, CPLR 3211 [a] [5]), based upon hearsay newspaper articles of dubious reliability.
However, even if a contract is found to exist, the plaintiff is entitled to recover only royalties on recordings covered by the agreement which were generated during the six years prior to her commencement of this action in July 1993 (i.e., starting August 1, 1987) (see, e.g., Airco Alloys Div. v Niagara Mohawk Power Corp., supra, at 80).
Finally, the plaintiff's second cause of action must be dismissed for failure to articulate a claim cognizable in the courts of the State of New York (see, e.g., Minichiello v Royal Bus. Funds Corp., 18 N.Y.2d 521, 527, cert denied 389 U.S. 820; Rogoff v San Juan Racing Assn., 77 A.D.2d 831, 832, affd 54 N.Y.2d 883; see also, Gee v CBS, Inc., 471 F. Supp. 600, affd 612 F.2d 572; CPLR 3211 [a] [2], [5], [7]). Pizzuto, J.P., Joy, Friedmann and Goldstein, JJ., concur.