FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
`
`RECEIVED NYSCEF: 04/06/2021
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`
`
`SUPREME COURT OFTHE STATE OF NEW YORK
`COUNTY OF Cayuga
`
`MAGIC CIRCLE FILMS INTERNATIONAL,
`LLC d//a MAGIC CIRCLE ENTERTAINMENT
`Plaintiff{s)/Petitioner(s)
`
`+ against -
`MARYELLEN BREON
`
`Defendant/Respondent(s).
`xX
`
`Index No, 2013-1055
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`Assigned Judge Hon. J. Scott Odorisi
`
`Application
`Action
`
`|, Kiebanoff___ a party In this matter, counsel In good standing representing
`a party In this matter, and/or counsel admitted pro hac vice, hereby respectfully request that
`the Court authorize the use of the New York State Courts Electronic Filing System (“NYSCEF”)
`In this case and direct the County Clerk to convert this matter to electronic form pursuant to
`202.5-b(b)(2)(iv) of the Uniform Rules of the Trial Courts,
`
`Pursuant to 202.5-b(b)(2)(Iv), | have attached proof of service of this letter application
`to all partles. Upon receipt of notification of the conversion of this matter to electronic form
`by the CountyClerk,! will serve all parties with a conversion andwillfile
`proofof that service via NYSCEF.
`
`Dated: 03/30/2021
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`Attorney [@] Pro Hac (Oj Party (unrepresented) KF
`
`Signature: Von
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`/
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`Print Name: Benjamin
`
`Klebanoff
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`Attorney Representing- (Identify Party):
`
`Mary Ellen Breon
`
`Deiat Theea Fane
`
`Firm Name: Shearman & Sterling LLP
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`Address: 599 Lexington Ave., New York, NY 16022
`
`E-mail; benjamin.klebanoff@shearman.com
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`Phone#; 212
`
`848
`
`4000
`
`
`FOR COURTUSE:
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`[8] application is APPROVED; and the County Clerkis directed to convert this matter to electronic form.
`
`is directed to notify the applicant.
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`10/28/20
`EF-28
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`1 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
`
`RECEIVED NYSCEF: 04/06/2021
`
`SUPREME COURTOF THE STATE OF NEW YORK
`COUNTY OF CAYUGA
`
`
`
`MAGIC CIRCLE FILMS INTERNATIONAL, LLC d/b/a;
`MAGIC CIRCLE ENTERTAINMENT
`: Index No. 2013-1055
`
`Plaintiffs
`
`Hon. J. Scott Odorisi
`
`- VS -
`
`MARY ELLEN BREON
`
`;
`
`AFFIRMATION OF SERVICE
`
`Defendant
`
`-Vs—
`
`JOEY DeMAIO, CIRCLE SONG MUSIC, LLC, GOD OF :
`THUNDER PRODUCTIONS,LTD., MAGIC CIRCLE
`MUSIC GUITARS, LLC, MAGIC CIRCLE FILMS
`INTERNATIONAL, LTD., MAGIC CIRCLE MUSIC,
`LLC, and CAROMARK,LLC,
`
`
`
`Third Party
`Defendants
`
`:
`xX
`
`88.
`
`) 2
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`BENJAMIN KLEBANOFF, anattorney admitted to practice law in the Courts ofthe State of
`
`New York, herebyaffirms, under penalty of perjury, that on March 30, 2021 true andcorrect copies
`
`ofthe following
`
`e
`
`Letter Application to Convert Pending Action to E-Filing dated March30, 2021
`
`in this action were served by email and overnight delivery upon:
`
`Joseph A. Camardo, Jr.
`Justin T. Huffman
`CAMARDO LAW FIRM,P.C.
`127 Genesee Street
`Auburn, NY 13021
`Attorneyfor Plaintiff
`Dated: March 30, 2021
`
`7
`
`a
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`Utz Le
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`Benjamin Klebanoff
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`2 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
`
`RECEIVED NYSCEF: 04/06/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF CAYUGA
`
`
`
`x
`
`MAGIC CIRCLE FILMS INTERNATIONAL, LLC:
`d/b/a MAGIC CIRCLE ENTERTAINMENT
`: Index No. 2013-1055
`
`Plaintiffs
`
`: Hon. J. Scott Odorisi
`
`-VS-
`
`MARY ELLEN BREON
`
`} NOTICE OF ENTRY
`
`Defendant
`
`-VS-
`
`JOEY DeMAIO, CIRCLE SONG MUSIC, LLC,
`GOD OF THUNDER PRODUCTIONS, LTD.,
`MAGIC CIRCLE MUSIC GUITARS, LLC, MAGIC
`CIRCLE FILMS INTERNATIONAL, LTD., MAGIC :
`CIRCLE MUSIC, LLC, and CAROMARK,LLC,
`
`Third Party
`Defendants
`
` xX
`
`PLEASE TAKE NOTICE,that enclosed hereto as Exhibit A is a copy of the
`
`Memorandum and Orderof the Appellate Division, Fourth Departmentin the appeal in this
`
`matter with the Civil Appeal number20-401, which wasfiled with the Clerk of the Appellate
`
`Division, Fourth Department on March 19, 2021.
`
`Dated: March 30, 2021
`New York, New York
`
`POMERANTZ LLP
`By: Baran Calood vo [iL
`Brian Calandra
`600 Third Avenue, 20th Floor
`NewYork, NewYork 10016
`Tel: (212) 661-1100
`Fax: (917) 463-1044
`Email: brian.calandra@pomlaw.com
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`3 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
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`RECEIVED NYSCEF: 04/06/2021
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`SHEARMAN & STERLING LLP
`
`By: lt
`Benjamin Klebanoff
`599 Lexington Avenue
`NewYork, New York 10022
`Tel: (212) 848-4000
`Fax: (212) 848-7179
`Email: benjamin.klebanoff@shearman.com
`
`To:
`
`Joseph A. Camardo, Jr.
`Justin T. Huffman
`Camardo Law Firm P.C.
`Attorneys for Plaintiff/Third-Party Defendants
`17 GeneseeSt.
`Auburn, NewYork 13021
`T: (315) 252-3846
`F: (315) 252-3508
`
`wo
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`4 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
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`RECEIVED NYSCEF: 04/06/2021
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`Exhibit A
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`5 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`RECEIVED NYSCEF: 04/06/2021
`NYSCEF DOC. NO. 2
`SUPREME COURT OF THE STATE OF NEW YORK
`Appellate Division, Fourth Judicial Department
`
`INDEX NO. 2013-1055
`
`1122.1
`CA 20-00401
`PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
`
`
`
`MAGIC CIRCLE FILMS INTERNATIONAL, LLC,
`DOING BUSINESS AS MAGIC CIRCLE
`ENTERTAINMENT,
`PLAINTIFF-RESPONDENT-APPELLANT,
`
`V
`
`MEMORANDUM AND ORDER
`
`MARY ELLEN BREON,
`DEFENDANT-APPELLANT-RESPONDENT.
`
`MARY ELLEN BREON, THIRD-PARTY
`PLAINTIFF-APPELLANT-RESPONDENT,
`
`Vv
`
`JOEY DEMAIO, CIRCLE SONG MUSIC, LLC,
`GOD OF THUNDER PRODUCTIONS, LTD., MAGIC
`CIRCLE MUSIC GUITARS, LLC, MAGIC CIRCLE
`FILMS INTERNATIONAL, LTD., MAGIC CIRCLE
`MUSIC, LLC, AND CAROMARK, LLC, THIRD-PARTY
`DEFENDANTS-RESPONDENTS-APPELLANTS.
`
`
`
`POMERANTZ LLP, NEW YORK CITY (BRIAN CALANDRA OF COUNSEL), AND SHEARMAN
`& STERLING LLP, FOR DEFENDANT-APPELLANT-RESPONDENT AND THIRD-PARTY
`PLAINTIFF-APPELLANT-RESPONDENT.
`
`CAMARDO LAW FIRM, P.C., AUBURN (JOSEPH A. CAMARDO, JR., OF COUNSEL),
`FOR PLAINTIFF-RESPONDENT-APPELLANT AND THIRD-PARTY DEFENDANTS—
`RES PONDENTS-APPELLANTS.
`
`Appeal and cross appeal from an order of the Supreme Court,
`Cayuga County (Matthew A. Rosenbaum, J.), entered October 8, 2019.
`The order denied the respective motions of the parties for partial
`summary judgment.
`
`It is hereby ORDERED that the order so appealed from is
`unanimously affirmed without costs.
`
`Plaintiff, a music producer and distributor,
`Memorandum:
`commenced this action asserting causes of action for, inter alia,
`breach of contract.
`In the complaint, plaintiff alleged that
`defendant-third-party plaintiff (defendant) breached a verbal
`agreement whereby she agreed to deliver to plaintiff newly recorded
`musical compositions by her band and to grant plaintiff the copyright
`
`6 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`25
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
`1122.1
`RECEIVED NYSCEF: 04/06/2021
`CA 20-00401
`
`interest in connection with the manufacture, distribution and sale of
`those recordings in exchange for receiving, inter alia, a 50% share of
`According to plaintiff, defendant never delivered the
`all net income.
`promised recordings and, instead, used plaintiff’s trade secrets and
`After commencement of the action,
`property to enrich herself.
`defendant initiated a third-party action against third-party defendant
`Joey DeMaio, plaintiff's managing member, and various other entities
`essentially controlled by DeMaio.
`
`Plaintiff and third-party defendants moved and defendant cross-
`moved for, inter alia, partial summary judgment on the issue of
`Supreme Court
`ownership of the recordings and related copyrights.
`denied the motion and cross motion, determining that there were issues
`of fact with respect to the ownership of the recordings and copyrights
`Following additional
`at issue that precluded granting either motion.
`discovery, the parties again moved for partial summary judgment on the
`Defendant appeals and
`issue of ownership of the disputed property.
`plaintiff and third-party defendants cross-appeal from an order
`denying those respective motions.
`We affirm.
`
`Generally, “successive summary judgment motions . .. are
`disfavored absent newly discovered evidence or other sufficient cause”
`(Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16
`NY3d 702 [2011]; see Farm Family Cas. Ins. Co. v Brady Farms, Inc., 87
`AD3d 1324, 1326 [4th Dept 2011]; Marine Midland Bank v Fisher, 85 AD2d
`Here, we conclude that the court properly
`905, 906 [4th Dept 1981]).
`denied the parties’ successive motions because the parties’
`Although on
`submissions were not based on newly discovered evidence.
`her second motion defendant submitted deposition testimony elicited
`after her first motion, that testimony did not constitute newly
`discovered evidence because it did not “establish facts that were not
`available to [defendant] at the time [she] made [her] initial motion
`for summary judgment and which could not have been established through
`alternative evidentiary means” (Vinar v Litman, 110 AD3d 867, 868-869
`[2d Dept 2013]; see Farrell v Okeic, 303 AD2d 957, 957 [4th Dept
`The court properly denied the motion of plaintiff and third-
`2003]).
`party defendants because they also failed to demonstrate that the
`evidence submitted in support of their second motion was unavailable
`to them at the time they made their first motion (see Vinar, 110 AD3d
`Further, although this Court is not precluded from
`at 868-869).
`addressing the merits of a successive summary judgment motion that is
`not based on newly discovered evidence or lacks sufficient cause (see
`Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1593 [4th Dept
`2016]; Giardina, 77 AD3d at 1291), we decline to exercise our
`discretion to reach the merits of the parties’ second motions.
`
`Entered:
`
`March 19, 2021
`
`Mark W. Bennett
`Clerk of the Court
`
`7 of 8
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`FILED: CAYUGA COUNTY CLERK 04/06/2021 11:23 AM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 2013-1055
`
`RECEIVED NYSCEF: 04/06/2021
`
`SUPREMECOURT OF THE STATE OF NEW YORK
`COUNTY OF CAYUGA
`
`
`
`MAGIC CIRCLE FILMS INTERNATIONAL, LLC d/b/a:
`MAGIC CIRCLE ENTERTAINMENT
`: Index No. 2013-1055
`
`Plaintiffs
`
`Hon. J. Scott Odorisi
`
`-VS-
`
`MARY ELLEN BREON
`
`;
`
`AFFIRMATION OF SERVICE
`
`Defendant
`
`-Vs—
`
`JOEY DeMAIO, CIRCLE SONG MUSIC, LLC, GOD OF :
`THUNDER PRODUCTIONS, LTD., MAGIC CIRCLE
`MUSIC GUITARS, LLC, MAGIC CIRCLE FILMS
`INTERNATIONAL, LTD., MAGIC CIRCLE MUSIC,
`LLC, and CAROMARK,LLC,
`
`Third Party
`Defendants
`
`:
`
`x S
`
`88.
`
`) 1
`
`TATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`)
`
`BENJAMIN KLEBANOFF, anattorney admitted to practice law in the Courts of the State of
`
`New York, hereby affirms, underpenalty ofperjury, that on March 30, 2021 true and correct copies
`
`ofthe following
`
`e
`
`Notice of Entry dated March 30, 2021
`
`in this action were served by email and overnight delivery upon:
`
`Joseph A. Camardo, Jr.
`Justin T. Huffman
`CAMARDOLAW FIRM, P.C.
`127 Genesee Street
`Auburn, NY 13021
`Attorney for Plaintiff
`March 30, 2021
`
`Dated:
`
`UsAt C-
`
`:
`
`Benjamin Klebanoff
`
`8 of 8
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