Opinion
358
February 28, 2002.
Order, Supreme Court, New York County (Barry Cozier, J.), entered December 26, 2000, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to grant defendant's motion insofar as to dismiss plaintiff's fraud and tortious interference claims, and otherwise affirmed, without costs.
Christian D. Carbone for plaintiff-respondent.
James P. Cinque for defendant-appellant.
Before: Tom, J.P., Andrias, Saxe, Wallach, Rubin, JJ.
The motion court properly denied defendant's motion insofar as it sought dismissal of plaintiff's contract-based claims, since the claims are adequately pleaded and the contractual provisions relied upon by defendant do not demonstrate, as a matter of law (see, Held v. Kaufman, 91 N.Y.2d 425, 430-431,; Leon v. Martinez, 84 N.Y.2d 83, 88), that it was free of the contractual obligations alleged by plaintiff, i.e., to produce and finance the marketing, promotion and distribution of a soundtrack album, and to provide licenses and clearances for the previously released tracks it provided to plaintiff for use in its film. Also properly sustained was plaintiff's cause for breach of fiduciary duty. While the subject contract evidences an arm's length business transaction, the complaint adequately pleads facts and circumstances extraneous to and independent of the contract from which a fiduciary duty between the parties may be inferred (see, LaBarte v. Seneca Resources Corp., 285 A.D.2d 974, 976-977). However, inasmuch as plaintiff's fraud and tortious interference claims are grounded in defendant's failure to produce licenses and clearances for the previously released tracks, they should be dismissed as duplicative of the contract based claims (see, WIT Holding Corp. v. Klein, 282 A.D.2d 527; Mallory Factor Inc. v. Jika, 168 A.D.2d 344; Armory Bldg. Ltd. Partnership v. Park 25th Assocs., 120 A.D.2d 438).
We have considered defendant's remaining arguments and find them unavailing in the present procedural context.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.