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I Could Write A Book

By Michael Frisch

The New York Appellate Division for the First Judicial Department denied a motion for summary judgment sought and granted by the trial court in a case involving Andrea Tantaros vesus Michael Krechmer AKA Michael Malice

In 2015, plaintiff, and defendant entered into a collaboration agreement concerning plaintiff’s writing of a book. After the book was published, the parties became embroiled in a dispute concerning whether, among other things, defendant violated the confidentiality provision of the agreement.

Issues of fact concerning whether defendant breached the confidentiality agreement preclude the grant of summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The underlying court granted summary judgment based on defendant’s filing of a lawsuit in federal court, making allegations concerning his role in writing the book. However, the suit was filed under seal, and there is no legal authority for finding the filing of a suit under seal to be a breach of a contractual confidentiality agreement. Although the federal court expressed concern that defendant may have violated the sealing order before it was lifted (Under Seal v Under Seal, 273 F Supp 3d 460 [SD NY 2017]), plaintiff submitted no evidence in support of her motion to support that claim. In opposition to the motion, defendant raised issues of fact, including whether any of the other alleged communications breached the terms of the confidentiality agreement and whether plaintiff authorized the disclosures. The denial of plaintiff’s motion for summary judgment on her breach of confidentiality claim undermines the basis for dismissing the counterclaim for breach of contract, because if defendant did not materially breach the contract, plaintiff is required to pay the remaining amount due.

We decline to review Tantaros’ claim that the motion court, upon reargument, erroneously denied her motion for summary judgment on the defamation claim, inasmuch as her appeal from the order was dismissed (see 22 NYCRR 1250.10[a]).

(Mike Frisch)