Opinion
No. 04 Civ. 9365 (GEL).
March 18, 2005
Steven E. Rosenfeld, Law Offices of Steven E. Rosenfeld, P.C., New York, New York for Plaintiffs Pandisc Music Corporation and Streetbeat Records, Inc.
Saul B. Shapiro, Michael D. Sant'Ambrogio, Patterson, Belknap, Webb Tyler LLP, New York, New York for Defendant Red Distribution LLC.
OPINION AND ORDER
Plaintiffs, who are affiliated small record companies, sue their former distributor, defendant Red Distribution, LLC, charging that at the expiration of their distribution agreement, defendant destroyed quantities of plaintiffs' records that were still on hand, which under the agreement should have been returned to plaintiffs. The complaint alleges three causes of action, for breach of contract, conversion, and "negligent bailment." Defendant now moves to dismiss the latter two counts, on the ground that they are merely duplicative of the breach of contract claim. Although the Court is uncertain why this motion was thought worth the expense of making and resisting it at this stage of the litigation, the motion will be granted.
It is well established that "a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." Spanierman Gallery, PSP v. Love, No. 03 Civ. 3188 (VM), 2003 WL 22480055, at *3 (S.D.N.Y. Oct. 31, 2003) (internal quotation marks and citations omitted). Causes of action for conversion, in particular, are subject to this rule. Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, S.A., No 03 Civ. 9141 (PKL), 2004 WL 1933621, at *5 (S.D.N.Y. Aug. 30, 2004). A bailment is in any event a claim based in express or implied contract. Mays v. New York, New Haven Hartford R.R. Co., 97 N.Y.S. 2d 909, 911 (App. Term. 1950). Thus, plaintiffs' second and third causes of action are presumptively duplicative of their contract claim.
As plaintiffs correctly point out, the rule contains its own exception: separate tort claims may be maintained where they rest upon a "legal duty independent of the contract itself."Spanierman, 2003 WL 22480055, at *3. In this case, however, according to the allegations of plaintiffs' complaint, defendant's possession of plaintiffs' property was governed not by the independent duties owed by one citizen to another under general tort principles, but by a specific agreement negotiated between the parties. Defendant held the property with certain rights and obligations determined by contract. The contract specifically authorized defendant to destroy the property under certain circumstances (Distribution Agency Agreement, Compl. Ex. A, ¶ 5(c)), and specifically required defendant to comply with plaintiffs' directives to return or otherwise dispose of it under other circumstances. (Id. ¶¶ 5, 6.) Thus, whether defendant violated any duty to plaintiffs is governed by the contract, and the remedy for any such violation is an action for breach of that contract.
Plaintiffs attempt to avoid this result by arguing that the contract governed defendant's actions during its term, but that after expiration of the contract, defendant's duties were governed by independent tort principles. But by the plain terms of the parties' agreement, that is not so. The agreement states a term, during which a distribution arrangement between the parties exists. (Id. ¶ 1.) But the agreement also contains promises by defendant to take certain actions after the term expires, including specifically its obligations with respect to records remaining in its possession after the expiration of the term. (Id. ¶ 5(a), (f) — (h).) Thus, even after the expiration of the distribution term, defendant's rights and obligations in this regard continue to be governed by the agreement.
Accordingly, plaintiffs' second and third causes of action are dismissed as duplicative.
SO ORDERED.