The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 81, 82, 83, 84, 90, 91, 92, 93, 94, 97, 122, 123 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, it is This action is brought seeking monetary damages and declaratory relief for an alleged breach of contract and/or fraud committed by defendant Metabook, Inc. (“Metabook”)1 The defendant has moved to dismiss the complaint. BACKGROUND The plaintiff is a limited liability company whose sole owner and member is Tiffany Boydell, an attorney. Plaintiff and defendant Metabook, now known as Cinergistik, entered into a written publishing contract (“the Publishing Contract”) on or about September 15,2020. Pursuant to the Publishing Contract, Metabook agreed to publish and promote a book about chess authored by Ms. Boydell’s son, Oliver Boydell, called “He’s Got Moves.” The book was published on December 8, 2020. The Publishing Contract was signed by Ms. Boydell and defendant on September 15, 2020. Among other things, the Publishing Contract specified that Defendants would publish a physical book edition and digital book edition on December 8, 2020, and would “meaningfully consult with [Ms. Boydell and Oliver] on all substantive matters relating to the production, publication and promotion of the Work, including: title, pricing; distribution, promotion; editorial and design matters,” and provided that “Publisher shall have full discretion in final decisions relating to the production, publication and promotion of the Work.” Alfonsi Aff. Exhibit A
2(a), 3(c) The Publishing Contract specified the amount to be paid by plaintiff in connection with the project, the percentage amount of royalties plaintiff would receive and, that Metabook would pay royalties and render statements of account on a biannual basis. Id. 4(e). In the Publishing Contract, the plaintiff granted to defendant “the sole and exclusive right to license or otherwise dispose of [various, specified] subsidiary rights related to the Work or [Oliver] as a public personality and champion chess player,” which, among others, included that the defendant would retain subsidiary “rights to other ancillary or derivative creative content that may arise from the Work….” Id. 5 With respect to promotion, the Publishing Contract states that “the Publisher agrees to undertake publicity and promotion of the Work and its Creator related to the announcement and launch of the Work and for a four-month period following publication.” Id. 6(a).” Under the Publishing Contract, the plaintiff was obligated to make Oliver “reasonably available for promotion and marketing purposes.” Id. 6(g). The Publishing Contract further specifies that during the term, Oliver “shall not appear in, contribute to, or otherwise assist with any other projects related to the Work or its themes without Publisher’s express consent,” id. 7; and that, for a period of five years following the date of execution (September 15, 2020), any book-length work by Oliver had to be submitted to defendant before it was submitted to another publisher. Id. 8(a). Metabook would then have thirty days to notify plaintiff as to whether it wished to publish the work, and the parties would then have another 30 days to negotiate a mutually acceptable agreement. Id. If either Metabook informed plaintiff that it did not wish to publish a subsequent work or if after 30 days, the parties were unable to negotiate an acceptable agreement for publishing the work, the plaintiff would be free to submit the subsequent book to another publisher for consideration. Id. The Publishing Contract required plaintiff to submit any project related to “He’s Got Moves” or to Oliver to Defendants before it was submitted elsewhere. Id. 8(b). Finally, and most critical to resolving this dispute, the Publishing Contract contains a merger clause which specifies: “This Agreement contains the entire understanding of the parties regarding the Work and supersedes any prior Agreement, understanding or arrangement between the parties, whether oral or in writing. It may not be modified or amended except by a writing executed by both parties.” Id. The complaint alleges four causes of action. The causes of action are breach of contract, fraud, breach of fiduciary duty and declaratory judgment. On a motion to dismiss pursuant to CPLR 3211, “the complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.” (MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 AD3d 836, 839 (1st Dept. 2011). “‘Allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled [to be presumed to be true.]‘” Mark Hampton, Inc. v. Bergreen, 173 AD2d 220 [1st Dept. 1991] [internal citations omitted]; see also Skillgames, LLC v. Brody, 1 AD3d 247, 250 [1st Dept. 2003] ["factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration."] Dismissal is also warranted under CPLR 3211(a)(1), where the documentary evidence “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim.” (Fortis Fin. Serves, LLC v. Fimat Futures USA, 290 AD3d 383,383 [1st Dept. 2002]; see also Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] [3211 (a)(1) motion should be granted "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law."] Contracts and their terms, including merger clauses such as that in the Publishing Contract, are the kind of documentary evidence properly considered on a motion to dismiss pursuant to CPLR §3211(a)(1), and such a merger clause warrants granting a motion dismissing claims for breach of contract, breach of fiduciary duty and/or fraud where plaintiff’s allegations are clearly precluded by the merger clause and/or barred by the parol evidence rule (see Denenberg v. Schaeffer, 137 AD3d 1197, 1198 [2d Dept 2016]; SNS Bank, N.V. v. Citibank, N.A., 7 AD.3d 352, 354 [1st Dept 2004]). BREACH OF CONTRACT Plaintiff’s breach of contract cause of action asserts several discrete groups of promises or representations allegedly made by the defendants. First, the complaint alleges that Ms. Boydell, “relying upon the written and oral representations of Metabook [made prior to the time she executed the Publishing Contract on behalf of Plaintiff], invested substantial money to have the book published and promoted.” Compl. 4. These representations according to the complaint, included an alleged promise by the defendant that it would invest or contribute money to the book project in an amount equal to that given by the plaintiff. Compl.
