Opinion
10994 Index 650476/18
02-11-2020
Andrea K. TANTAROS, etc., et al., Plaintiffs–Respondents, v. Michael KRECHMER also known as "Michael Malice," etc., Defendant–Appellant.
Randazza Legal Group, PLLC, Long Island City (Jay M. Wolman of counsel), for appellant. Jonathan Askin, Brooklyn, for respondents.
Randazza Legal Group, PLLC, Long Island City (Jay M. Wolman of counsel), for appellant.
Jonathan Askin, Brooklyn, for respondents.
Friedman, J.P., Renwick, Kern, Oing, JJ.
Order, Supreme Court, New York County (Alan C. Marin, J.), entered January 16, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion to dismiss the first, third, fourth and fifth counterclaims, unanimously affirmed, without costs.
In the parties' collaboration agreement, plaintiffs retained defendant to provide editing and writing services for plaintiffs' book. Plaintiffs agreed to compensate defendant upon the completion of certain stages of those services, and an additional payment if the book was listed on the New York Times bestseller list. Since the agreement contained a "no oral modification" clause, defendant is precluded from claiming that plaintiffs orally agreed to pay him for additional writing services not included in the contract (see General Obligations Law § 15–301[1] ; Israel v. Chabra, 12 N.Y.3d 158, 167, 878 N.Y.S.2d 646, 906 N.E.2d 374 [2009] ). Defendant's claim that the oral agreement effectively terminated, not modified, the contract is similarly unavailing.
Defendant's counterclaim for breach of the implied covenant of good faith and fair dealing was properly dismissed as redundant of the counterclaim for breach of contract (see Shilkoff, Inc. v. 885 Third Ave. Corp., 299 A.D.2d 253, 750 N.Y.S.2d 53 [1st Dept. 2002] ).
Defendant's copyright claim is barred by the doctrine of res judicata, as it was dismissed on the merits in a prior federal action ( Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).
We have considered defendant's remaining arguments and find them unavailing.