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FILED: KINGS COUNTY CLERK 05/24/2018 03:20 PM INDEX NO. 506339/2016
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------X
JAVOTTI MEDIA INC. and
TALIB KWELI GREENE, Index No. 506339/2016

Plaintiffs, AFFIRMATION IN SUPPORT
-against-

SHAREESE RENEE BALLARD,

Defendant.
---------------------------------------------------------X

BRITTNEY BORRUSO, an attorney duly admitted to practice law before the

Courts of the State of New York, hereby affirms the truth of the following under

penalty of perjury:

1. I am the attorney for the Plaintiffs JAVOTTI MEDIA INC. (hereinafter,

"JAVOTTI") and TALIB KWELI GREENE (hereinafter, "TALIB") in

connection with the above matter, and as such, I am fully familiar with

the facts and circumstances of this matter. The source of my

knowledge being the file(s) maintained by my office in the course of

handling this action.

Plaintiffs'
2. I submit the instant affirmation in support of Motion seeking

an order: (1) enforcing the Settlement Agreement reached between the

parties by entering judgment against Defendant in favor of Plaintiffs in

Plaintiffs'
the sum of $12,000.00; (2) in the alternative, restoring

motion for Summary Judgment to the docket and granting an Order for

Plaintiffs'
Summary Judgment in favor based upon Defendant's failure

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Plaintiffs'
to reply and the merits of motion; and (3) for such further

and other relief as the Court deems just and proper plus costs and

reasonable attorney's fees.

Plaintiffs'
3. A copy of the Court's Order dated March 8, 2017, deciding

Motion and Defendant's Cross-Motion is attached hereto as Exhibit A.

[Docket No. 37]

4. A copy of the Court's Order dated September 29, 2017 declining

Plaintiff's Motion to Reargue but granting leave to re-file is attached

hereto as Exhibit B. [Docket No. 59]

Plaintiffs'
5. A copy of Motion for Summary Judgment is attached hereto

as Exhibit C. [Docket No. 60-82].

Plaintiffs'
6. Shortly before the hearing date of March 9, 2018, on Motion

for Summary Judgment, the parties agreed to a settlement of the

action.

7. The parties, via their attorneys after discussing and obtaining consent

from their respective clients, agreed that Defendant would pay

Plaintiffs the settlement sum of $12,000.00 [the "Settlement Sum"] in

consideration of Plaintiffs discontinuing the action with prejudice and

releasing Defendant from her contractual obligations to Plaintiffs

pursuant to the parties Exclusive Artist Agreement.

8. In order to avoid the added legal expenses their respective clients

would incur and to avoid wasting the Court's time and resources to

appear in person only to advise the Court the parties had settled, the

parties advised the Court to mark the case as settled and adjourned the

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parties'
hearing based upon the agreement regarding the Settlement

Sum and the terms of the Settlement Agreement, but prior to the

execution of the formal Settlement Agreement.

9. The proposed Settlement Agreement was circulated on or about

parties'
February 27, 2018 via email between the attorneys.

parties'
10. Between February 27, 2018 and March 8, 2018, the attorneys

discussed the terms of the Settlement Agreement with their respective

clients and made revisions to the Settlement Agreement accordingly

until the parties had agreed upon a final version, a copy of which is

attached hereto as Exhibit D.

11. The material terms of the Settlement Agreement, all of which were

represented as agreed upon by both parties, are as follows:

i) The Settlement Sum of $12,000.00 payable to Plaintiffs by

Defendant to settle the action;

ii) The Settlement Sum was not payable in installments or over a

specific period of time, rather, it was only payable to Plaintiffs

from any music related activities of the Defendant;

Plaintiffs' Mac"
iii) The would retain ownership of the EP "Refried

for the remainder of the contractual period, until September 1,

2023, pursuant to the terms of Exclusive Artist Agreement;

Don'
iv) Defendant would cease use of the version of the song, "You Don't

Me" Plaintiffs'
Know containing vocals;

v) Plaintiffs would release Defendant from her contractual

obligations of the Exclusive Artist Agreement.

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12. The Settlement Agreement contained further provisions regarding an

accounting by Defendant of any music related activities, provisions for

an escalation of payment if Defendant signed to a label or distribution

company or raised funds to release music, non-disparagement language

and other standard provisions.

13. Sometime prior to March 6, 2018, after Defendant's counsel discussed

the Settlement Agreement with the Defendant, Defendant's counsel

Plaintiffs'
contacted counsel requesting certain revisions to the

Plaintiffs'
Settlement Agreement as per his client's request. counsel

thereafter made said revisions as requested and sent the final version

to Defendant's counsel for signature on the understanding amongst the

parties that the matter was settled and this final version was agreed to.

parties'
14. A copy of the email confirming the discussion between the

attorneys regarding the revision is attached hereto as Exhibit E.

Plaintiffs'
15. Defendant's counsel advised counsel that the Settlement

Agreement was now agreed upon and consented to advising the Court

of the settlement.

Plaintiffs'
16. Accordingly, on March 8, 2018, counsel notified the Court

that the parties desired to have the case marked as settled, as they had

reached a settlement and would not be for the March th
appearing 9

hearing.

Plaintiffs'
17. The matter was marked settled on the Court's docket and the

awaited Defendant's signature on the agreed upon Settlement

Agreement which Defendant's counsel indicated was imminent.

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18. Sometime thereafter, Defendant advised that she no longer wanted the

settlement and "was not settling", despite having already settled after

having the opportunity to review said Settlement Agreement, make

requested revisions thereto and agreeing to have the case marked as

settled.

Plaintiffs' "firing"
19. She further informed counsel that she was her

counsel, Mr. Sarna, despite the work done by Mr. Sarna on her behalf

to settle the matter on favorable terms, so that his client was only

required to pay the Settlement Sum in the event she pursued her music

career and not from any other source, effectively meaning that

Plaintiffs would never receive payment if Defendant never pursued a

career in the music industry again.

20. Pursuant to New York law, if there is no express communication of an

intent not to be bound until execution of a document, parties may enter

into a binding contract prior to execution of the document, because a

lack of memorization of their agreement in writing will not prevent

contract formation. Winston v. Mediafare Entertainment Corp., 777

F.2d 78, 80 (2d Cir.1985) citing R.G. Group, Inc. v. Horn & Hardart

("
Co., 751 F.2d 69 (2d Cir.1984) ("In any given case it is the intent of the

parties that will determine the time of contract formation. To discern

that intent a court must look to 'the words and deeds [of the parties]

which constitute objective signs in a given set of circumstances.'");

Walker v. City of New York, 2006 WL 1662702, (E.D.N.Y.2006). In

reaching its determination, the court in Winston considered these

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factors: (1) whether there has been an express reservation of the right

not to be bound in the absence of a writing; (2) whether there has been

partial performance of the contract; (3) whether all of the terms of the

alleged contract have been agreed upon; and (4) whether the agreement

at issue is the type of contract that is usually committed to writing. Id.

21. Whereas here, there was no expression not to be bound by the

settlement agreement in absence of it being signed; the terms of the

written Settlement Agreement were reviewed, revised and agreed upon

by both parties; and the parties relied upon settlement agreement when

advising the Court that the matter was settled and did not appear for

the hearing on the Motion for Summary Judgment accordingly, the

Defendant should be bound by the terms of the Settlement Agreement.

22. Moreover, even without the signatures on the formal Settlement

Agreement, "drafting and re-drafting of an agreement, as here, can

writing."
qualify as the See Conway v. Brooklyn Unin Gas Co., 236

F.Supp.2d 241, 251 (E.D.N.Y.2002). "In addition, the lack of signature

on the relatively noncomplex Stipulation does not invalidate the

binding nature of the agreement or lessen the significance of the

written memorization of the terms. See Walker v. City of New York,

("
2006 WL 1662702, 9 (E.D.N.Y.2006) ("It should be noted that some

courts have considered an oral settlement agreement that was drafted

and transmitted between parties to qualify as an actual writing; thus

nullifying the need for the four prong Winston balancing test."). See

also Hostcentric Technologies, Inc U. Repub.lic Thunderbolt, LLC,

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2005 WL 1377853, 9-10 ("...it would be a strange test if the fourth

factor always favored finding no agreement on the ground that

settlement agreements usually are written. ...even if one were to find

that this type of agreement should be in writing, it was the parties were

not dealing with an oral agreement but one written in an email from

Republic and accepted by an email from Hosteentric.").

23. This is nothing more than a clear attempt by Defendant to further delay

Plaintiffs'
recovery, as Defendant has delayed and stalled this litigation

for a period of nearly two (2) years, failing to timely reply, requesting

various adjournments, refusing previous extremely reasonable

settlement offers, etc., and despite the weight of the law and facts

weighing heavily against Defendant.

24. Defendant, having been given an opportunity to object to the

settlement terms and having instead agreed upon them, should not be

permitted to further waste the Court's valuable time and resources,

Plaintiffs'
make a mockery of our justice system and further delay

recovery and ability to put this matter behind them.

Plaintiffs'
25. Accordingly, respectfully request that the Court enforce the

Settlement Agreement as reached and agreed to by the parties herein,

enter judgment in the amount of the Settlement Sum against

Defendant, not permit Defendant to switch counsel post-settlement, or,

in the alternative, to restore the case and motion to the Court's docket

and find Defendant to be in default thereof, together with costs,

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expenses and reasonable attorney's fees; and for such other and further

relief as this Court deems just and equitable.

Dated: Long Beach, New York

May 24, 2018

P
'
P~~
Brittney Borruso

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SETTLEMENT AGREEMENT

This Settlement Agreement [the "Settlement Agreement"] dated as of __ day of March,

2018, by and between the parties of the first part, Javotti Media Inc. ["Javotti Media"] and Talib

Kweli Greene p/k/a Talib Kweli ["Talib"], collectively the "Plaintiff", and the party of the

second part, Shareese Renee Ballard p/k/a Res ["Res"], the "Defendant", collectively, the

Parties, sets forth the terms and conditions upon which Plaintiffs and Defendant have agreed.

WHEREAS, Plaintiffs commenced this action by filing a summons with notice on April

20, 2016, Index Number 506339/2016 in the Kings County Supreme Court;

WHEREAS, the parties desire to settle this matter on the terms and conditions set forth

below;

NOW, THEREFORE, in consideration of the mutual promises, covenants, warranties and

agreements and conditions hereinafter set forth, it is hereby agreed between the parties hereto as

follows:

1. The parties agree to settle the action, including without limitation claims, counterclaims, and

any and all matters arising out of, concerning or relating to the subject matter thereof, through a

negotiated resolution of all issues between them.

2. Defendant shall pay Plaintiffs the sum of twelve thousand dollars ($12,000.00) [the

"Settlement Sum"] as follows to the extent Defendant does the enumerated: (1) fifty percent

(50%) of any gross revenue from any music put out by Defendant (including, but not limited to,
whole albums, EP, individual tracks, etc., whether for sale direct to consumer or via free

streaming paid in ad dollars or per stream, etc., whether put out directly by Defendant or anyone

on behalf of Defendant, in any medium now known or hereafter known); (2) fifty percent (50%)
of any gross revenue from any paid show, performance, gig, etc., of Defendant's; and (3) fifty
percent (50%) of any gross revenue from any Indiegogo Campaign or other similar fundraiser for

which Defendant raises money for her music, until the Settlement Sum is paid to Plaintiffs in

full. It is understood and agreed that Defendant is not obligated to do any of the enumerated

activities, but to the extent Defendant does do them, Defendant must make payment to Plaintiff

as indicated.

3. Plaintiffs will release Defendant from their contractual obligations under the parties Exclusive

Artist Agreement dated September 1, 2013, so that Defendant may release new music or work

with any other label, distributor, etc. In the event Defendant is picked up/signed by a label, agent,

distributor, etc., Defendant will pay fifty percent (50%) of any advances and royalties received to

Plaintiffs until the Settlement Sum is paid in full.

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4. Defendant shall track all music put out and each show performed in a ledger to be provided to

Plaintiffs for accounting and auditing purposes. Defendant shall pay the Settlement Sum to

Plaintiffs on a monthly basis from any revenue as listed above by check made payable to
attorney"
"Brittney Borruso, Esq., as and delivered to Borruso Law, 780 Long Beach Blvd.,

Long Beach, NY 11561 by the fifth of each month, along with providing Plaintiffs with a copy

of the ledger for the month via email. In the event Defendant has put out music or performed a

show but has not yet received compensation for same in time for the monthly payment,

Defendant shall note same in the ledger and shall add the sums owed to the payment to Plaintiffs

in the following month.

Mac"
5. Plaintiff shall retain ownership of the EP "Refried pursuant to the terms of the parties

Exclusive Artist Agreement until September 1, 2023 [the "Reversion Date"], at which point all

rights in and to the EP granted to Plaintiffs shall revert back to Defendant and the parties shall

work together to transfer said rights within a reasonable time after the Reversion Date.

Defendant will be responsible for any fees incurred to transfer said ownership back to Defendant.

Me"
6. Defendant shall not use the song "You Don't Know as recorded with vocals of Plaintiff
Mac"
nor sell, distribute, release to the public for free or otherwise put out the EP "Refried or

any track therefrom until the Reversion Date.

7. In the event of default by Defendant, i.e. Defendant puts out music, performs, starts a

fundraising campaign for her music, or is signed to a label/agent/distributor with an advance

and/or royalties and fails to pay Plaintiffs, then Plaintiffs through their attorney may enter

judgment ex parte against and without notice pursuant to New York Civil Practice Law and

Rules 3215(i) for the Settlement Sum, plus interest at the legal rate of nine percent (9%) from the

date of this Agreement and costs and disbursements in entering the default judgment, upon
Plaintiffs'
submitting to the Kings County Clerk an affidavit of counsel attesting to the default

hereunder. Nothing herein shall prejudice any other rights or remedies of Plaintiffs upon

Defendant's default.

8. The parties shall submit to the Court notice of settlement of this Action and shall cooperate to

seal the file if same is attenable.

9. The parties shall execute and deliver to one another General Releases in the form annexed

hereto and made a part hereof.

10. This settlement and all the terms of the Settlement Agreement and the underlying action are

to be kept strictly confidential between the parties hereto and their respective attorneys. Further,
each party agrees not to disparage, tortiously interfere with, slander, defame, libel or attack the

other, including, but not limited to, each party acknowledging that they will not post anything
negative on any form of social media, blog, etc., or in any interview or verbally about the other.

Further, Defendant agrees to cease accusing Plaintiff of sexual harassment. Any breach of this

provision shall be deemed material.

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parties'
11. This Settlement Agreement shall be binding upon the parties respective shareholders,

officers, directors, employees, heirs, successor and assigns, if any. Defendant shall not attempt to

circumvent the terms of this Settlement Agreement by putting out music through a differing

entity, group, name, etc.

12. This Settlement Agreement and the rights and obligations of the parties under it are governed

by and interpreted in accordance with the laws of the State of New York (without regard to

principles of conflicts of laws) and the state and federal courts of the State of New York County
of Kings shall have the sole and exclusive jurisdiction over any claim or controversy arising out

or of in connection with this Agreement. In any action brought in relation to this Agreement the

prevailing party shall be entitled to recover costs and reasonable legal fees.

13. This Settlement Agreement represents the entire agreement and understanding of the parties

hereto. No prior writings, conversations, or representations of any nature shall be deemed to

vary the provisions of this Settlement Agreement.

14. This Settlement Agreement may not be modified or amended unless expressly agreed to in

writing and signed by both parties.

15. If any term or provision of this Settlement Agreement is held to be void or unenforceable,

that term or provision will be severed from this Settlement Agreement, the remainder of the

Settlement Agreement will survive, and the balance of this Settlement Agreement will be

reasonably construed to carry out the intent of the drafter as evidenced by the term of this

Settlement Agreement.

16. The failure of either party to enforce any provision of this Settlement Agreement shall not be
construed as a waiver or limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Settlement Agreement.

attorneys'
17. Each party shall be responsible for their respective fees and costs associated with
the action and settlement thereof.

18. An executed facsimile or email of this Agreement shall serve as an original.

[SIGNATURE PAGES FOLLOW]

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PLAINTIFF:

Javotti Media Inc.
By: Talib Kweli, President

STATE OF NEW YORK )
)ss.: ~~
COUNTY OF )

On the day of in the year , before me, the undersigned notary public,

personally appeared , personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their

capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

PLAINTIFF:

Talib Kweli

STATE OF NEW YORK )
)ss.: ~~
COUNTY OF )

On the day of in the year , before me, the undersigned notary public,

personally appeared , personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their

capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

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DEFENDANT:

Shareese Renee Ballard

p/k/a Res

STATE OF )
)ss.: ~~
COUNTY OF )

On the day of in the year , before me, the undersigned notary public,

personally appeared , personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their

capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

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