| Hindlin v Prescription Songs LLC |
| 2021 NY Slip Op 01482 |
| Decided on March 11, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: March 11, 2021
Before: Webber, J.P., Kern, Scarpulla, Mendez, JJ.
Index No. 651974/18 Appeal No. 13322-13322A Case No. 2019-04315, 2020-01781
v
Prescription Songs LLC et al., Defendants, Advanced Alternative Media, Inc. et al., Defendants-Respondents.
Foster Garvey P.C., New York (Andrew J. Goodman of counsel), for appellant.
Ganfer Shore Leeds & Zauderer LLP, New York (Mark C. Zauderer of counsel), for respondents.
Judgment, Supreme Court, New York County (Andrea Masley, J.), entered October 17, 2019, dismissing the complaint as against defendants Advanced Alternative
Media and Mark Beaven (AAM defendants), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 2, 2019, which granted said defendants 3211(a)(1) and (7) motion to dismiss the complaint as against them, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court properly dismissed the negligence and breach of fiduciary duty claims, as plaintiff failed to allege any breach of duty independent of the parties' management agreement (see Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]). Even assuming the truth of plaintiff's allegation that there was a conflict of interest in light of the AAM defendants' management of and business dealings with Prescription Songs LLC, the documentary evidence shows that plaintiff knew of that potential conflict and waived it (see e.g. Centennial Ins. Co. v Apple Bldrs. & Renovators, Inc., 60 AD3d 506, 506 [1st Dept 2009]).
We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: March 11, 2021