ARTISTS RIGHTS ENFORCEMENT CORP v. [And a Third–Party action] (2021)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered May 8, 2020, which, inter alia, granted plaintiff's motion for partial summary judgment declaring that defendants breached the parties' 2007 settlement agreement and that plaintiff was entitled to a 20 percent bonus and reasonable attorneys' fees pursuant to that agreement, unanimously affirmed, with costs.

Although plaintiff's agreement with musical artists Glover and Morris was not irrevocable as an agency coupled with an interest because consideration alone is not sufficient to establish an agency coupled with interest (see Matter of Jarmakowski., 169 Misc. 463, 465–466, 8 N.Y.S.2d 35 [Sur. Ct., Erie County 1938]), plaintiff was nevertheless properly awarded summary judgment on its breach of contract claim.  Whether Glover and Morris had revoked the agency agreement with plaintiff, it was not a proper defense in this action for the breach of the 2007 settlement agreement between plaintiff and defendants, which defendants breached by failing to make payments after 2010.

Contrary to defendants' argument, the motion court did not err in awarding a 20% bonus to plaintiff.  Defendants failed to establish that the amount of potential actual damages was readily ascertainable at the time the agreement was executed or that the fixed damages amount is grossly disproportionate to foreseeable losses (see Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 N.Y.3d 115, 120, 818 N.Y.S.2d 161, 850 N.E.2d 1137 [2006]).

Furthermore, the award of the reasonable attorneys' fees to plaintiff as the prevailing party pursuant to the parties' agreement was appropriate (see Matter of Wiederhorn v. Merkin, 98 A.D.3d 859, 863, 952 N.Y.S.2d 478 [1st Dept. 2012], lv denied 20 N.Y.3d 855, 2012 WL 6582317 [2012]).

We have considered defendants' remaining arguments and find them unavailing.