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Barry & Sons1/6/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
Defendant Instinct Productions LLC appeals from an order of the Supreme Court, New York County (Carol Edmead, J.), entered June 4, 2004, insofar as it denied its motion to dismiss the negligence claim against it.
This is an appeal from an order sustaining the sufficiency of a complaint seeking damages for the destruction of a business agent's "principal asset," the rhythm and blues vocalist Aaliyah Dana Haughton, known professionally as Aaliyah, arising out of her death in an airplane accident, alleged to have been caused by defendant's negligence in arranging for her transportation from the filming of a music video.
Plaintiff Barry & Sons, Inc., d/b/a Blackground Records, was formed in 1992 to develop, promote and capitalize on the musical talents of Aaliyah, and to oversee the production and distribution of her records, tapes and music videos. In 1998, Blackground entered into a recording agreement with Aaliyah that provided for her to make multiple recordings and music videos for Blackground. In August 2001, Blackground entered into a contract with Instinct Productions LLC calling for Instinct, for a fee to be paid by Blackground, to produce a music video entitled "Rock the Boat." Aaliyah was killed on August 25, 2001 in the crash of an airplane chartered by Instinct in connection with the production of this video. Blackground brings this action against Instinct for damages it sustained on account of Aaliyah's death.
After Aaliyah's death, her parents, individually and as representatives of her estate, brought a wrongful death action in California against Instinct and several other parties. This action was settled on or about October 31, 2003; by the terms of the settlement agreement, Instinct and the other named defendants were released from all claims relating to Aaliyah's death. On November 5, 2003, five days after the settlement of the California wrongful death action, Blackground commenced this action against Instinct and others, seeking damages "in the millions of dollars" for the loss of "current and future profits" on "account of the death of Aaliyah."
In its amended complaint, Blackground asserts four causes of action: the first, for a declaratory judgment for Instinct's failure to perform its contractual obligations in that it agreed to be responsible for any loss or damage in connection with the production of the video, is essentially a breach of contract claim; the others, against Instinct and its principals, allege that the latter, based on a long, close and trusting professional and personal relationship with Blackground and its principal, Aaliyah's uncle, owed a duty to Blackground, separate and apart from its contractual obligations, to "use reasonable care in selecting the mode of transportation to transport . . . Aaliyah," and that Instinct's negligence in failing to arrange for such safe and reliable passage was the proximate cause of her death.
Instinct moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, arguing that an employer has no right to recover damages resulting from the death of an employee or key personnel caused by another. Blackground opposed the motion, arguing, inter alia, that it was not suing for wrongful death but, rather, for Instinct's negligence resulting in severe harm and loss to it, and that the courts should recognize an exception to the bar against an employer's suing for the wrongful death of an employee or key personnel in a case where, as here, the parties had a "long, close and trusting personal relationship," tantamount to a fiduciary one.
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