Opinion
September 23, 1997
Appeal from Supreme Court, New York County (Stephen Crane, J.).
The IAS Court properly dismissed plaintiffs' copyright claim as having been finally determined in the prior Federal court action ( Robinson v. Viacom Intl., 1995 U.S. Dist LEXIS 9781 [SD NY, July 13, 1995, Patterson, J., 93 Civ 2539 (RPP)]), and plaintiffs' fraud claim as inadequately pleaded (CPLR 3016 [b]). The implied in-fact and implied-in-law contract claims should be dismissed because of plaintiffs' failure to rebut defendants' prima facie showing that the allegedly misappropriated idea underlying those claims is not novel ( see, Surplus Equip. v. Xerox Corp., 120 A.D.2d 582, lv denied 68 N.Y.2d 606; Oasis Music v. 900 U.S.A., 161 Misc.2d 627, 630-631 [explaining Apfel v. Prudential-Bache Sec., 81 N.Y.2d 470]). Indeed, plaintiffs do not even address defendants' proof on the issue of novelty, instead relying entirely on the erroneous argument that the Federal court's ruling dismissing plaintiffs' State law claims without prejudice to their reassertion in State court estops defendants from asserting lack of novelty.
Concur — Sullivan, J.P., Ellerin, Nardelli, Williams and Andrias, JJ.