179 A.D.2d 397 | N.Y. App. Div. | 1992
Defendant Klein has admitted under oath that defendant Ho-Tel received $70,000 from HBO, $107,000 from SHO, and other funds for licensing the various films, without remitting any portion to plaintiff. Similarly, defendant SAM admits that it failed to comply with paragraph 5 (c) of the Laboratory Access Letter, in that it failed to ascertain whether plaintiff had received payment prior to release of the master videotapes. These admissions were sufficient for plaintiff to establish an entitlement to summary judgment on its causes of action for breach of fiduciary duty, conversion, and tortious interference against defendant Ho-Tel, and against defendant SAM in the action against it.
We agree with the IAS court that the various "defenses” raised by defendants in this regard are without merit. There is no indication that Ho-Tel was "defrauded” into entering into the Distribution Agreement based on representations that plaintiff already owned the films. In any event, defendants could not have been defrauded since they in fact loaned plaintiff the funds to consummate the sale. If, indeed, there was any unfair dealing, defendants have ratified the agreement by adhering to it and deriving benefit from it without objection. The claim that plaintiff has advanced a false copy of the contract is also without merit, since the relevant contractual provisions which defendant Ho-Tel has been shown to have breached do not differ in the version of the contract it claims to be the genuine agreement.
As to whether Klein should be personally liable, the IAS
With respect to plaintiff’s argument that defendants are not entitled to any compensation in view of the conversion, the issue should await an assessment of damages.
We have considered the remaining arguments and find them to be without merit. Concur — Rosenberger, J. P., Wallach, Ross and Smith, JJ.