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NYSCEF DOC. NO. 1
INDEX NO. 152123/2014 RECEIVED NYSCEF: 03/10/2014
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
----------------------------------------------------------------X In the matter of the Application of THE ESTATE OF PAUL CARAVELLO, P.K.A. ERIC CARR, Petitioner, for an order pursuant to Section 3102(c) of the Civil Practice Laws and Rules to compel pre-action disclosure from,
Verified Petition for Pre-Action Disclosure
KISS CATALOGUE LTD.; UNIVERSAL KISS LTD., GENE SIMMONS WORLDWIDE , INC., THE KISS COMPANY, HORIPRO ENTERTAINMENT GROUP, INC., UNIVERSALPOLYGRAM INT.PUBL., INC. Respondents ----------------------------------------------------------------X
The Petitioner, The Estate of Paul Caravello, professionally known as Eric Carr (“Estate” or “Petitioner”), by its attorneys Garson, Ségal, Steinmetz, Fladgate LLP alleges as follows: 1. At the time of his death Paul Caravello was domiciled in the State of New York and pursuant to his Last Will and Testament. Letters Testamentary were granted by the Surrogate’s Court of the State of New York, New York County. I. 2. BACKGROUND
Paul Caravello p.k.a. Eric Carr (“Eric Carr”) was a musician, songwriter, and composer and performed with the well-known rock band KISS from 1980 until his death on November 24, 1991.
Until his death, Carr received the regular mechanical and/or publishing royalty payments that were owed to him on a regular basis, from various sources.
The source of such payments varied depending upon which company or organization administered the publishing of the works.
Upon his death, however, while some of these royalty payments continued to be made to his Estate and/or beneficiaries by respondents Universal-Polygram Int. Publ., Inc. (“UMPG”) no payments were received by the Estate, its executors or the beneficiaries from The Kiss Company or any company or corporation to which its rights have been sold, assigned or transferred (“KISS Group”) for the compositions “Breakout,” “Carr Jam 1981”, “Carr Jam 1991” and “Little Cesar” (the “Listed Compositions”).
It is clear from the attached American Society of Composers, Authors, and Publishers schedule (“ASCAP Schedule”) (attached to Affirmation of Robert Garson dated March 10, 2014 (“RG Aff.”) as Ex. A) that Petitioner is credited as either a writer or composer on the Listed Compositions, and is therefore entitled to royalty payments.
Prior to his death, Mr. Carr received payments from The Kiss Company (“KISS Co.”) arising from the composition “Breakout” as shown on the excerpt of the “Writer Statement” (RG Aff. Ex. B) from KISS Co. where Carr received a payment of $1,444.65, for the relevant period. Since his death, Petitioner has received neither payments nor royalties for this song or of the Listed Compositions from the KISS Group.
For over a year, requests have been made for missing payments or information regarding any reasons for non-payment from the representatives of KISS and UMPG, all to no avail.
Additionally, the composition entitled “Little Cesar,” which was recorded and published with the United States Copyright Office in 1989 with Carr listed as an author (“Registration 1”), appears to have been re-registered with the Copyright Office in 1992 with Carr’s name removed (“Registration 2”). (RG Aff. Exs. C &. D).
10. Carr wrote and composed a number of musical works, some of which were in collaboration with other artists. 11. Carr was asked to join KISS and entered into an agreement with KISS Co. on July 1, 1985 (the “1985 Agreement”). Clause 9(a) (RG Aff. Ex. E) states that the ownership of any musical compositions which Carr wrote or co-wrote was deemed to be a work-forhire and that “Carr shall have no right, title or interest in or to such musical compositions except as provided in the Songwriter's Agreement in the form of Exhibit "A" annexed hereto.” 12. Clause 5 of the songwriter’s agreement (RG Aff. Ex. F) provides for “As full consideration for the services to be rendered by Writer hereunder, and for the rights granted herein” for payment to Carr for the term of the copyright of: a) 7¢ per pianovocal copy; b) 5% of the retail selling price of any printed copy of the composition; c) 50% of any and all net sums received by Publisher or credited to its account from mechanical, reproduction, synchronization and all other rights within the US and Canada; d) 50% of any and all net sums received by Publisher or credited to its account from mechanical, reproduction, synchronization and all other rights outside the US and Canada; e) $1 when the composition is published in any composite work, book, or lyric magazine by a licensee of publisher; 13. Clause 6(a) (Ex. F) states “Publisher agrees to pay to Writer, or, upon his death, to the
person or persons legally entitled thereto, during the period of copyright protection of the Composition, the royalties provided herein.” 14. The publishing of some of the works is administered by UMPG and allocated to Carr’s account and some of the works are allocated to the account of KISS by UMPG. 15. Over the past year UMPG has sent accounts, for the compositions allocated to AA30 – The Estate of Eric Carr, which do not contain any details for the Listed Compositions. 16. On February 19, 2013, upon instructions from the Estate, we contacted respondent William Randolph, of Gordon, Herlands, Randolph & Cox LLP, counsel to and registered agent of KISS and at least one the various KISS Co. entities (attached as Ex. G). 17. On March 13, 2013, Mr. Randolph stated by email that the reasons for the lack of response was variously that Kiss’ manager was out of the country with KISS on tour in Australia, the accountant is in the middle of tax season, accounting records are likely in warehouses and that the issue was on the KISS administration agenda for March 22, 2013. 18. On April 19, 2013, Aaron Van Duyne, the accountant for the Kiss Group, sent an email to the director of royalties of UMPG asking about ownership, inter alia, of the Listed Compositions. 19. On April 27, 2013 Mr. Randolph stated by email “We have made our own inquiry of Universal Publishing for any royalties paid or payable to Eric, or to KISS regarding the compositions in question. We will let you know when we hear back from them.” 20. On December 6, 2013, Mr. Randolph emailed an email chain purporting to contain the results of an investigation and directed that we should contact UMPG.
21. On December 13, 2014, Mr. Randolph that information was lacking regarding the Listed Compositions, to which he relied that he request information from the administrative people from KISS. 22. In response to a follow up email on December 19, 2013 Mr. Randolph stated that the reason for the lack of response was that the accountants were swamped with end of year estimates. 23. Subsequent requests were made of UMPG for the release of the accounts relating the Listed Compositions to which UMPG stated its position on February 10, 2014 (RG Aff. Ex. H) that it could not provide the historical royalty data without authorization from Universal KISS Ltd. and directed that we liaise with Mr. Van Duyne. 24. On January 6, 2014, Mr. Randolph stated by email “We will let you know what KISS received.” 25. On January 27, 2014, Mr. Randolph stated by email that he has received some information, but there were missing records. 26. Mr. Van Duyne stated by email on February 10, 2014 and February 11, 2014 respectively, that he is were receiving conflicting ownership information, and that he is were awaiting to hear back from the attorney who handled KISS in 1991. 27. On February 10, 2014 Mr. Randolph brought up for the first time that the works may have been subject to a work-for-hire agreement and that he has contacted the KISS entertainment attorney. 28. On February 23, 2014, (RG Aff. Ex. I) Mr. Randolph stated, “I will discuss matter with KISS and let you know by end of week what they are prepared to do.” 29. No information to date has been received.
THE STANDARD UNDER CPLR §3102(c)
30. Pursuant to CPLR § 3102(c), the court has discretion to grant pre-action disclosure only where there is a demonstration that the party bringing such a petition has a meritorious cause of action and the information being sought is material and necessary to an actionable wrong. See American Media, Inc. v. Green, 8 Misc.3d 1002(A), 2005 WL 1389361, at *2 (N.Y. Sup. April 8, 2005) (citations and quotation marks omitted) (JAM). 1 31. Alternatively, “preaction disclosure is not allowed to determine whether facts supporting a cause of action exist.” Gleich v. Kissinger, 111 A.D.2d 130, 132 (1st Dep't 1985); Holzman, 271 A.D.2d 346 (1st Dep't 2000). Indeed, courts have long recognized the impropriety of such a “fishing expedition.” Liberty Imports, Inc. v. Bourget, 146 A.S.2d 535, 536 (1st Dep't 1989). The purpose of this limitation is “to prevent the initiation of troublesome and expensive procedures, based upon mere suspicion, which may annoy and intrude upon an innocent party.” Green, 2005 WL 1389361 at *3, quoting Stewart v. New York Transit Authority, 112 A.D.2d 939, 940(2d Dep't 1985). 32. “To obtain such an order, the applicant must show the existence of a prima facie cause of action.... In determining whether the petitioner has demonstrated a prima facie case, the evidence presented must be considered in a light most favorable to the
See Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 A.D.2d 346,
347 (1st Dep't 2000), citing Stump v. 209 E. 56th St. Corp., 212 A.D.2d 410. “Pre-action discovery... is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Bishop v. Stevenson Commons Assocs., LP., 74 A.D.3d 640, 641 (1st Dep't 2010), citing Liberty Imports v. Bourguet, 146 A.D.2d 535, 536.
petitioner.” Toal v. Staten Island Univ. Hosp., 300 A.D.2d 592, 593, 752 N.Y.S.2d 372, 374 (2d Dep't 2002) (citations omitted). 33. Information sought must be “material and necessary to the actionable wrong.” Matter of Uddin v. New York City Transit Authority, 27 A.D.3d 265, 266 (1st Dep't 2006). An examination to frame a complaint will not be permitted where petitioner possesses sufficient information to frame a complaint without the examination which is sought. Simpson v. Traum, 63 A.D.2d 583, 584 (1st Dep't 1978). 34. Pre-action disclosure, pursuant to CPLR §3102(c), has been held appropriate in instances where disclosure is necessary to ascertain the identities of parties who should be joined as Defendants. See, Application of Roland, 10 A.D.2d 263, 198 N.Y.S.2d 792 (1st Dept. 1960); Matter of Mintz, 57 A.D.2d 593, 393 N.Y.S.2d 603 (2d Dept). “Before an action is commenced, ‘disclosure to aid in bringing an action’ may be obtained by court order (CPLR 3102[c]), including ‘discovery in order to obtain information relevant to determining who should be named as a defendant’” Konig v. CSC Holdings, LLC, 112 A.D.3d 934 (Citing: East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 129 (affd. 16 N.Y.3d 775)).
THE NEED FOR PRE-ACTION DISCLOSURE IN THIS CASE
35. The elements of a cause of action for breach of contract are: (1) the existence of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant’s failure to perform; and (4) damages resulting from such failure to perform. See Noise in Attic Productions, Inc. v. London Records, 10 A.D.3d 303, 306. 36. On its face, whichever entity is the recipient or deemed to be the publisher pursuant
to the 1985 Agreement and the incorporated songwriter’s agreement, has breached the most basic of the terms namely payment to the Estate. 37. Disclosure as to which parties have been paid, and the level of amounts generated from the Listed Compositions is essential in being able to frame the complaint and determine who should be named as a defendant. 38. Similarly, the existence of a copyright in the sole name of one of the co-writers for the composition “Little Caesar” gives rise to a prima facie allegation of misappropriation. 39. There depth and nature of the breaches i.e. failure to provide statements, failure to permit inspection, breach of constructive trust may be born out of disclosure. 40. The Petitioner, through counsel has sought disclosure from the parties for over a year before seeking the assistance of the Court and it would seem that the Respondents have been playing a careful shell game in denying Carr access to documents. 41. I believe that petitioner has a good and meritorious cause of action. 42. Pursuant to Rule 2217(b) of the CPLR, no previous application for the relief sought against the Respondent herein has been made to this or any other Court. 43. No injunctive relief is being sought in this matter. WHEREFORE, Petitioner respectfully requests that this Court issue the annexed Order to Show Cause pursuant to CPLR §3102(c), for pre-action disclosure, and compelling the Respondents identified herein to fully and completely disclose: all information regarding current ownership, exploitation, money’s earned in all senses relating to the Listed Compositions; any and all assignments relating the Listed Compositions; a full accounting of all mechanical and publishing royalties relating to the Listed Compositions; any and all agreements between and among Respondents regarding the
Listed Compositions, including, but not limited to copyright registration; any and all documents relating to deems proper. means, together with such other further relief as the Court
Dated: New York, New York March 10, 2014 Garson, Ségal, Steinmetz, Fladgate LLP By: /s/ Robert Garson Robert Garson 164 West 25th Street Suite 11R New York, NY 10001 Telephone (212) 380-3623 Facsimile (347) 537-4540 Attorneys for Petitioner
ROBERT GARSON, an attorney duly admitted to practice law before the court of this State, affirms the following under penalty of perjury: I am counsel in this matter to Petitioner, the Estate of Paul Caravello, p.k.a. Eric Carr. I have read the foregoing Petition brought pursuant to CPLR § 3102(c) and know the contents thereof; the same are true to the best of my knowledge, information and belief; as to matters therein stated to be alleged or averred on information and belief, the deponent believes them to be true. This verification is made by deponent pursuant to CPLR § 3020(d)(3) because Petitioner’s office is not located within New York County, where its attorneys have their office. The source of my information and the grounds of my belief are communications with my client and my review of the documentation, reports and investigations contained in the firm’s file. Dated: New York, New York March 10, 2014 Garson, Segal, Steinmetz, Fladgate LLP By:
/s/ Robert Garson
Robert Garson, Esq. 164 West 25th Street; Suite 11R New York, NY 10001 Telephone: (212) 380-3623 Facsimile: (347) 537-4540 Attorneys for Petitioner