Opinion
March 25, 1999
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
We agree with the IAS Court that factual issues remain as to whether defendant breached its contract with plaintiff by failing to market or distribute the CD-ROM it hired plaintiff to create. Since the contract called for plaintiff to be compensated, in large measure, by royalties from sales of the subject software, the court properly found an implied promise on defendant's part to use its best efforts to promote the software, and, accordingly, that defendant's decision not to market or distribute the CD-ROM could constitute a breach of an implied covenant of good faith and fair dealing (see, Wood v. Duff-Gordon, 222 N.Y. 88, 91; Mellencamp v. Riva Music, 698 F. Supp. 1154) . We note, in addition, that, contrary to defendant's contention, plaintiff's breach of contract claim is not preempted since the implied promise constitutes an extra element removing the claim from the ambit of the Federal copyright act (see, v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501; A. Brod, Inc. v. SKI Co., 998 F. Supp. 314, 321). Nor can it be said, at this point, that plaintiff's damages are so speculative as to warrant dismissal of the breach of contract claim. The damages plaintiff alleges were foreseeable, and although he may not in the end be able to prove them with reasonable certainty, a determination to that effect at this juncture would be premature (see, Ashland Mgt. v. Janien, 82 N.Y.2d 395).
With respect to plaintiff's cross appeal, the IAS Court properly dismissed the fraudulent inducement and negligent misrepresentation causes of action since the only fraud charged relates to the alleged contract breach and since the special relationship required for the negligent misrepresentation claim is absent (Alamo Contract Bldrs. v. CTF Hotel Co., 242 A.D.2d 643, 644).
Concur — Rosenberger, J. P., Tom, Wallach and Mazzarelli, JJ.