Opinion
October 17, 2000.
Judgment, Supreme Court, New York County (Barry Cozier, J.), entered September 10, 1999, dismissing the complaint and bringing up for review an order, same court and Justice, entered August 9, 1999, which granted the motion of defendant American Society of Composers, Authors and Publishers (ASCAP) for summary judgment, unanimously affirmed, with costs. Appeal from the aforesaid order entered August 9, 1999, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Jonathan Weiss, for plaintiff-appellant.
Carol A. Witschel, for defendant-respondent.
Before: Sullivan, P.J., Rosenberger, Mazzarelli, Buckley, JJ.
Plaintiff, suing for breach of contract under a licensing agreement with the American Society of Composers, Authors, and Publishers, alleges that under a "most favored nation" clause in the agreement it was entitled to the time value of its payments by reason of an agreement ASCAP signed with CBS rival, National Broadcasting Corporation. The clause gave CBS the right to demand similar terms if a subsequently signed agreement with a rival network provided for lower "total price or payments". CBS contends that since NBC did not make payments until 1992 for the years 1977 through 1990, whereas CBS had made payments for the same period in 1981 and 1985, that the NBC package, albeit higher in gross amount, obligated NBC to pay less due to the time value of the money.
We find, however, that the grant of summary judgment to ASCAP was proper. The plain language of the agreement indicates that the clause only encompassed absolute value, and was not intended to compensate for time value. Thus, there is no need to resort to extrinsic evidence (see, Hartford Accident Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 171-172). Our conclusion is buttressed by CBS's failure to demand interest or other economic benefit when it received a refund as a result of a similar agreement ASCAP signed with the American Broadcasting Company. In view of CBS's failure to reserve its rights, the conclusory testimony of its officers that they intended to raise the issue when ASCAP signed with NBC is unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.