Rather v CBS Corp. (2009 NY Slip Op 06738)

From: Subject: Rather v CBS Corp. (2009 NY Slip Op 06738) Date: Mon, 5 Oct 2009 11:25:14 -0500 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06738.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.5579 Rather v CBS Corp. (2009 NY Slip Op 06738)

Rather v CBS Corp.

2009 NY Slip Op 06738

Decided on September 29, 2009

Appellate Division, First Department

Catterson, J.

Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.

This opinion is uncorrected = and=20 subject to revision before publication in the Official=20 Reports.

Decided on September = 29, 2009=20

SUPREME COURT, APPELLATE DIVISION

First = Judicial=20 Department
Luis A. Gonzalez, P.J.
John T. Buckley
James M. = Catterson=20
James M. McGuire
Dianne T. Renwick, JJ.
475-475A-475B-475C=20
603121/07=20

[*1]Dan Rather,=20 Plaintiff-Respondent-Appellant,

v

CBS Corporation,=20 Defendant-Appellant-Respondent, Viacom, Inc., et al., = Defendants-Respondents.=20

Plaintiff Dan Rather appeals from a judgment of the Supreme Court, = New York=20 County (Ira Gammerman, J.H.O.), entered April 14, 2008, dismissing the = complaint=20 as against the individual defendants, and bringing up for review an = order, same=20 court and J.H.O., entered April 11, 2008, which, inter alia, granted = defendants'=20 motion to dismiss the complaint to the extent of dismissing the causes = of action=20 for fraud, breach of the implied covenant of fair dealing, and tortious=20 interference with prospective business relations, and denied the motion = to the=20 extent it sought to dismiss the causes of action for breach of contract = and=20 breach of fiduciary duty, and from a judgment, same court and J.H.O., = entered=20 September 30, 2008, dismissing the amended complaint as against Viacom, = Inc. and=20 dismissing the causes of action for fraud and tortious interference with = contract as against CBS Corporation, and bringing up for review [*2]an order, same court and J.H.O., entered = September 23,=20 2008, which granted CBS and Viacom's motion to the extent it sought to = dismiss=20 the causes of action for fraud and tortious interference with contract = and=20 denied the motion to the extent it sought to dismiss the cause of action = for=20 breach of fiduciary duty. Cross appeals from the aforesaid orders.=20

Weil, Gotshal & Manges LLP, New York (James W. =
Quinn, Mindy=20 J. Spector and
Yehudah L. Buchweitz of
counsel), and CBS Law=20
Department, New York (Anthony
M. Bongiorno and Mary =
Catherine Woods=20 of counsel),
for appellant-respondent and
respondents. =
Sonnenschein=20 Nath & Rosenthal LLP, New York
(Martin R. Gold, Gary =
Meyerhoff,=20 Edward J. Reich, Daniel
Pancotti, and Zhubin Parang
of counsel), = for=20 respondent-
appellant.

CATTERSON, J.=20

This action asserting breach of contract and related tort claims = arises out=20 of a September 8, 2004 broadcast that plaintiff Dan Rather narrated on = the CBS=20 60 Minutes II television program about then President George W. Bush's = service=20 in the Texas Air National Guard. Rather alleges that CBS disavowed the = broadcast=20 after it was attacked by Bush supporters, and fraudulently induced him = to=20 apologize personally for the broadcast on national television as well as = to=20 remain silent as to his belief that the broadcast was true. Rather = alleges that,=20 following President Bush's re-election, CBS informed him that he would = be=20 removed as anchor of the CBS Evening News. Rather claims that although = his=20 employment agreement required that, in the event he was removed as = anchor, CBS=20 would make him a regular correspondent on 60 Minutes or immediately pay = all=20 amounts due under the agreement and release him to work elsewhere, CBS = kept him=20 on the payroll while denying him the opportunity to cover important news = stories=20 until May 2006 when it terminated his contract, effective June 2006.=20

Rather commenced this action against CBS Corporation, Viacom Inc., = and=20 individual defendants Leslie Moonves, Sumner Redstone and Andrew Heyward = in=20 September 2007. He asserted, inter alia, claims of breach of contract = and breach=20 of fiduciary duty against CBS; claims of fraud against CBS and the = individual=20 defendants and a claim of tortious inducement of breach of contract = against=20 Viacom and the individual defendants.=20

Now, Rather appeals and defendants CBS Corporation and Viacom Inc.=20 cross-appeal from orders entered by Supreme Court on April 11, 2008 and=20 September 25, 2008, which granted defendants' motion to dismiss the = claims for=20 fraud, breach of the implied covenant of good faith and fair dealing and = tortious interference with contract, and denied defendants' motion to = dismiss=20 the claims for breach of contract and breach of fiduciary duty.=20

For the reasons set forth below, this Court finds that the motion = court erred=20 in denying the defendants' motion to dismiss the claims for breach of = contract=20 and breach of fiduciary duty, and [*3]therefore we find the complaint must be = dismissed in=20 its entirety.=20

As a threshold matter, we find that Rather's appeal from the portion = of the=20 April 11, 2008 order that dismissed his fraud claims against the = individual=20 defendants was not rendered academic by his service of an amended = complaint=20 against the remaining defendants. See Velez v. Feinstein, 87 = A.D.2d 309,=20 312-313, 451 N.Y.S.2d 110, 113 (1982), lv. dismissed in part, = denied=20 in part, 57 N.Y.2d 737, 454 N.Y.S.2d 987, 440 N.E.2d 1334 (1982). = Moreover, for reasons set forth below, we find that Rather's service = of a=20 second amended complaint does not render moot his cross appeal from that = portion=20 of the September 25, 2008 order that dismissed his fraud claim. On the = record=20 before us, we assume, without deciding, that Rather's claim of breach of = the=20 implied covenant of good faith and fair dealing asserted as against CBS = in the=20 original complaint may also properly be reviewed. cf. O'Ferral v. City of New York, 8 AD3d 457, = 459, 779=20 N.Y.S.2d 90, 91 (1st Dept. 2004) (since court granted leave to file = amended=20 complaint that superseded original complaint, issue of disposition of = claim=20 included in original but not in amended complaint is academic).=20

At the outset, we find that Supreme Court erred in declining to = dismiss=20 Rather's breach of contract claim against CBS. Rather alleges that he = delivered=20 his last broadcast as anchor of the CBS Evening News on March 9, 2005, = and that,=20 since he was only nominally assigned to 60 Minutes II and then 60 = Minutes, he=20 should have received the remainder of his compensation under the = agreement in=20 March 2005. Rather claims that, in effect, CBS "warehoused" him, and = that, when=20 he was finally terminated and paid in June 2006, CBS did not compensate = him for=20 the 15 months "when he could have worked elsewhere." This claim attempts = to=20 gloss over the fact that Rather continued to be compensated at his = normal CBS=20 salary of approximately $6 million a year until June 2006 when the = compensation=20 was accelerated upon termination, consistent with his contract.=20

Contractually, CBS was under no obligation to "use [Rather's] = services or to=20 broadcast any program" so long as it continued to pay him the applicable = compensation. This "pay or play" provision of the original 1979 = employment=20 agreement was specifically reaffirmed in the 2002 Amendment to the = employment=20 agreement.=20

That Amendment also provided, in subparagraph 1(g), that if CBS = removed=20 Rather as anchor or co-anchor of the CBS Evening News and failed to = assign him=20 as a correspondent on 60 Minutes II or another mutually agreed upon = position,=20 the agreement would be terminated, Rather would be free to seek = employment=20 elsewhere, and CBS would pay him immediately the remainder of his weekly = compensation through November 25, 2006.=20

We agree that subparagraph 1(g) must be read together with the = subparagraph=20 1(f), which provided that if CBS removed Rather from the CBS Evening = News, it=20 would assign him to 60 Minutes II "as a full-time Correspondent," and if = 60=20 Minutes II were canceled, it would assign him to 60 Minutes as a = correspondent=20 "to perform services on a regular basis." However, this construction = does not=20 render any language of the agreement inoperative, since, consistent with = the=20 "pay or play" clause, neither subparagraph 1(g) nor 1(f) requires that = CBS=20 actually use Rather's services or broadcast any programs on which = he=20 appears, but simply retains the option of accelerating the payment of = his=20 compensation under the agreement if he is not assigned to [*4]either program.=20

It is clear that subparagraph 1(g) applies only to a situation where = CBS=20 removed Rather as anchor of CBS Evening News and then failed to assign = him "as a=20 Correspondent on 60 Minutes II." The amended complaint alleges that when = Rather=20 no longer performed anchor duties at CBS, he was assigned to 60 Minutes = II.=20 Thus, Rather implicitly concedes that CBS fully complied with = subparagraph 1(g).=20

Supreme Court erred in finding that subparagraph 1(g) modified the = "pay or=20 play" provision when it ignored the initial prefatory clause to the rest = of that=20 subparagraph, which states "[e]xcept as otherwise specified in this = Agreement."=20 As the defendants correctly assert, the seven words are crucial because = they=20 require subparagraph 1(g) to be read together with the "pay or play" = provision,=20 and thus, subparagraph 1(g) cannot modify the "pay or play" provision to = mean=20 that CBS must utilize Rather in accordance with some specific standard = by=20 featuring him in a sufficient number or types of broadcasts. As the = defendants=20 aptly observed, "the notion that a network would cede to a reporter = editorial=20 authority to decide what stories will be aired is absurd."=20

Rather's claim for lost business opportunities due to CBS's failure = to=20 release him to seek other employment is insufficiently supported. Since, = according to Rather's own allegations, an immediate result of the = September 8,=20 2004 broadcast was criticism that he was biased against Bush, it would = be=20 speculative to conclude that any action taken by CBS would have alone=20 substantially affected his market value at that time. Rather's claim for = damages=20 for loss of reputation arising from the alleged breach of contract is = not=20 actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d = 768, 392=20 N.Y.S.2d 299 (1st Dept. 1977).=20

Rather's cause of action for breach of fiduciary duty must also be = dismissed.=20 Supreme Court held that the issue of "whether a fiduciary duty has been = created=20 in the course of the long relationship between Rather and CBS is really = a=20 question of fact." Previously, the court determined that "the length of=20 [Rather's] contractual relationship with [CBS], and the nature of the = service=20 that [Rather] performed under his contracts" created an issue of fact = that could=20 not be resolved on motion. This was error.=20

Rather claims that his "four-decade history" with CBS constituted a = "special=20 relationship that imposed fiduciary duties upon CBS toward [Rather]." = The law in=20 this Department, and indeed enunciated in every reported=20 appellate-division-level case, is that employment relationships do not = create=20 fiduciary relationships. Simply put, "[the employer] did not owe = plaintiff, as=20 employee, a fiduciary duty." Angel v. Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d = 368,=20 370, 835 N.Y.S.2d 57, 60 (1st Dept. 2007), citing Weintraub v.=20 Phillips, Nizer, Benjamin, Krim & Ballon, 172 A.D.2d 254, = 568=20 N.Y.S.2d 84 (1st Dept. 1991); see Schenkman v. New York Coll. Of Health = Professionals, 29=20 AD3d 671, 672, 815 N.Y.S.2d 159, 161 (2d Dept. 2006) ("[employees] = failed to=20 plead any facts demonstrating how the arm's-length, employer-employee=20 relationship [...] gave rise to any fiduciary duty."); Cuomo v. Mahopac Natl. Bank, 5 AD3d 621, 622, = 774=20 N.Y.S.2d 779, 780 (2d Dept. 2004), lv. denied, 3 NY3d 607, 785 = N.Y.S.2d=20 25, 818 N.E.2d 667 (2004).=20

The length of Rather's tenure at CBS is irrelevant to, and does not = support,=20 this claim of a [*5]fiduciary relationship = (see=20 e.g., Michnick v. Parkell Prods., 215 A.D.2d 462, 626 = N.Y.S.2d 265=20 (2d Dept. 1995)), nor does Rather's status as "the public face of CBS = News after=20 Walter Cronkite retired [...]." See e.g. Maas v. Cornell Univ., = 245=20 A.D.2d 728, 666 N.Y.S.2d 743 (3d Dept. 1997).=20

Supreme Court's reliance on Apple Records v. Capitol Records = (137=20 A.D.2d 50, 529 N.Y.S.2d 279 (1st Dept. 1988)) and Wiener v. Lazard = Freres=20 & Co. (241 A.D.2d 114, 672 N.Y.S.2d 8 (1st Dept. 1998)), was = also error.=20 Unlike in Apple Records, where fledgling musicians ultimately = became a=20 worldwide music phenomenon known as the Beatles, Rather was an = established=20 correspondent represented by a leading talent agent, who negotiated a = contract=20 that was extensively amended several times, that paid Rather a lucrative = salary,=20 and that detailed, in 50 pages, everything from his assignments and = on-air work=20 at CBS Evening News to requirements that he attend rehearsals and join = the=20 union. See Faulkner v Arista Records LLC, 602 F.Supp.2d 470, 484=20 (S.D.N.Y. 2009) ("there are no facts here to suggest that the dealings = between=20 the Rollers and Arista were anything other or more than garden-variety = arm's=20 length transactions").=20

The Apple Records court also made plain that the defendant was = not=20 only the exclusive distributor of and manufacturer of the Beatles' = recordings=20 but also that the Beatles "entrusted their musical talents" to the = defendant=20 over a period of many years commencing when the Beatles were "still=20 unacclaimed." Apple Records, supra, 137 A.D.2d at 57, 529 = N.Y.S.2d=20 at 283. No such exclusive distributor relationship exists in the instant = case.=20 (See e.g. Zimmer-Masiello, Inc. v. Zimmer, Inc., 159 A.D.2d 363, = 552=20 N.Y.S.2d 935 (1st Dept. 1990)), nor can Rather argue that he "entrusted" = his=20 particular talents to CBS. Indeed, it may well be that Apple = Records will=20 remain a singular holding because of its application to a phenomenon=20 (unacclaimed artists who were also unsophisticated businessmen thrust to = the=20 pinnacle of success at warp speed) that's not likely to be seen again, = not even=20 on American Idol.=20

Similarly, Supreme Court improperly relied on Wiener, where we = found=20 that the plaintiff specifically alleged that employees of the defendant = acted on=20 the plaintiff's behalf in conducting negotiations with a bank, and that = they=20 relied on the defendant's "expertise and reputation" as well as certain=20 connections inside the management of the bank. 241 A.D.2d at 123, 672 = N.Y.S.2d=20 at 15. It simply cannot be argued that CBS acted as Rather's agent when = Rather=20 employed his own agent to negotiate with CBS for Rather's benefit. Any = claim to=20 the contrary is belied by both the evidence and common sense.=20

We affirm dismissal of Rather's fraud claims against CBS and the = individual=20 defendants although we find that Supreme Courterred in its rationale for = the=20 dismissal as it also erred in rejecting the defendants' other challenges = to the=20 fraud claim.=20

We take judicial notice of Rather's second amended complaint = (hereinafter=20 referred to as "SAC") filed by leave of Supreme Court on July 27, 2009, = and by=20 separate order, as a matter of discretion in the interest of judicial = economy,=20 we deny Rather's motion to withdraw that portion of his appeal relating = to the=20 dismissal of his fraud claim.=20

The SAC repleads the fraud claim in an attempt to remedy the defects = to which=20 Supreme Court pointed in its dismissal of the claim in its September 25, = 2008=20 order. However, Supreme [*6]Court = erred in its=20 rationale for the dismissal in holding that Rather "failed to allege = [...] that=20 his financial compensation at HDNet [...] is less than he would have = received=20 had his contract been renewed." Thus, the mere inclusion of Rather's = actual=20 annual compensation at HDNet is not helpful to his case, and would not = be=20 helpful to his case before this Court at any future date.=20

Rather alleges that various misrepresentations ( e.g., promises to = publicly=20 defend his reputation and to conduct an independent investigation into = the 2004=20 broadcast, and assurances that CBS intended to use his talents fully and = to=20 extend his contract, which was due to expire on November 25, 2006) = induced him=20 to remain silent about his role in the broadcast and to remain with CBS, = where=20 he was allegedly "warehoused" until thecompletion of his contract. As a = result,=20 he alleges he suffered money and reputation damages. Relying on Rather's = well-footnoted appellate brief, this Court was already cognizant of his = argument=20 that, following the completion of his CBS contract, his compensation at = HDNet=20 was less than the $4 million a year established as an approximate market = rate=20 for comparable journalists. However, for reasons set forth here, this=20 information was not required for our analysis, and the lack of it was = not the=20 reason for affirming dismissal.=20

It is hornbook law that,=20

"In an action to recover damages for fraud, the plaintiff = must=20 prove a misrepresentation or a material omission of fact which was = false and=20 known to be false by defendant, made for the purpose of inducing the = other=20 party to reply upon it, justifiable reliance of the other party on the = misrepresentation or material omission, and = injury."

Lama=20 Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, = 80, 668=20 N.E.2d 1370, 1373 (1996), citing Channel Master Corp v. Aluminum Ltd. = Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 (1958). = Supreme Court=20 properly dismissed Rather's fraud claims for failure to allege pecuniary = loss.=20

"The true measure of damage is indemnity for the actual = pecuniary=20 loss sustained as the direct result of the wrong or what is known as = the=20 out-of-pocket rule. Under this rule, the loss is computed by = ascertaining the=20 difference between the value of the bargain which a plaintiff was = induced by=20 fraud to make and the amount or value of the consideration exacted as = the=20 price of the bargain. Damages are to be calculated to compensate = plaintiffs=20 for what they lost because of the fraud, not to compensate them for = what they=20 might have gained. Under the out-of-pocket rule, there can be no = recovery of=20 profits which would have been realized in the absence of fraud." = Lama,=20 88 N.Y.2d at 421, 646 N.Y.S.2d at 80 (internal quotation marks and = citations=20 omitted).

Thus, under Lama Holding Co. and its progeny, Rather was = required to=20 plead that he had something of value, was defrauded by CBS into = relinquishing it=20 for something of lesser value, and that the difference between the two=20 constituted Rather's pecuniary loss.=20

Rather's claim that, but for CBS' fraud, he could have had more = remunerative=20 employment than that which he ultimately obtained at HDNet is = unavailing. "[T]he=20 loss of an alternative contractual bargain [...] cannot serve as a basis = for=20 fraud or misrepresentation damages because the loss of the bargain was=20 undeterminable and speculative.'" Lama, 88 N.Y.2d at 422, [*7]646 N.Y.S.2d at 80, quoting Dress Shirt = Sales v.=20 Hotel Martinique Assoc., 12 N.Y.2d 339, 344, 239 N.Y.S.2d 660, 664, = 190=20 N.E.2d 10, 13 (1963); see Geary v. Hunton & Williams, 257 = A.D.2d 482,=20 684 N.Y.S.2d 207 (1st Dept. 1999).=20

Rather claims, based on his value and the value of similar = professionals in=20 the industry, that he would have been paid $4 million annually from 2005 = through=20 2010. However, while claiming that he had an "agreement-in-principle" = with CBS=20 in the summer of 2004 to extend his contract, he alleges in the amended=20 complaint that he had an unwritten "proposal" that "contemplated" a = contract=20 extension, and the terms of the proposal were compensation of $4 million = for the=20 first 19 months and $2 million annually thereafter. Rather admits that, = the=20 broadcast and its aftermath aside, CBS was already contemplating that he = would=20 step down from the anchor position in 2006 and assume a reduced role.=20

As to lost opportunities in the trade, while Rather has shown his own = track=20 record of earnings and the earnings of other trade professionals, his = future=20 earnings are speculative, because there is no basis to conclude that his = employment status would not have changed, regardless of CBS's actions, = once he=20 determined to make the broadcast. Rather never identified a single = opportunity=20 with specified terms that was actually available to him and which he = declined to=20 accept because of CBS' actions.=20

Even if Rather pled pecuniary loss sufficiently to satisfy the = Lama=20 standard, his claim would nonetheless fail. Although allegations that = defendants=20 made statements to the general public, for example, that they falsely = blamed=20 Rather for alleged errors in the broadcast, may constitute a defamation = claim=20 (see Morrison v. National Broadcasting Co., 19 N.Y.2d 453, = 458-459, 280=20 N.Y.S.2d 641, 644, 227 N.E.2d 572, 574 (1967)), they are time-barred.=20 Furthermore, Rather's claim of under-use merely recasts his breach of = contract=20 claim in terms of fraud. See Wegman v Dairylea Coop., 50 A.D.2d = 108, 113,=20 376 N.Y.S.2d 728, 734-735 (1975), lv. dismissed, 38 N.Y.2d 918, = 382=20 N.Y.S.2d 979, 346 N.E.2d 817 (1976), and CBS's alleged promise to extend = Rather's contract constitutes a non-actionable statement of future = intent. See Laura Corio, M.D., PLLC v R. Lewin Interior = Design,=20 Inc., 49 AD3d 411, 412, 854 N.Y.S.2d 55, 56-57 (1st Dept. 2008). =

Even if Rather had alleged "a breach of duty which is collateral or=20 extraneous to the contract between the parties" Krantz v Chateau = Stores of=20 Canada, 256 A.D.2d 186, 187, 683 N.Y.S.2d 24, 25 (1st Dept. 1998) = (internal=20 quotation marks and citations omitted), he failed to adequately allege = damages.=20

To the extent Rather claims that he should have been released from = the=20 agreement earlier to pursue other opportunities, this claim is = duplicative of=20 his breach of contract claim. See Non-Linear Trading Co. v. Braddis=20 Assoc., 243 A.D.2d 107, 118, 675 N.Y.S.2d 5, 13 (1st Dept. = 1998).=20 Similarly, Rather's claim for breach of the implied covenant of good = faith and=20 fair dealing was properly dismissed by Supreme Court for being = duplicative of=20 his breach of contract claim. See Canstar v. Jones Constr. Co., = 212=20 A.D.2d 452, 622 N.Y.S.2d 730 (1st Dept. 1995).=20

Finally, Supreme Court properly dismissed the claim of tortious = interference=20 with a contract as against CBS and Viacom. First, CBS asserts correctly = that=20 Viacom is not a proper party to this action. Documentary evidence = demonstrates=20 that on December 31, 2005, Viacom [*8](old = Viacom)=20 split into two publicly traded companies named Viacom (new Viacom) and = CBS=20 Corporation, the latter retaining all of the liabilities concerning = CBS's=20 broadcasting business. Thus, the motion court correctly found that new = Viacom=20 carries no liability for old Viacom's acts in this suit. Second, as to = the claim=20 against CBS, the court correctly applied the economic interest doctrine = to=20 dismiss this claim against the corporate defendant. See White Plains Coat & Apron Co., Inc. v. Cintas = Corp., 8 NY3d 422, 835 N.Y.S.2d 530, 867 N.E.2d 381 (2007). = Rather's=20 bare allegations of malice do not suffice to bring the claim under an = exception=20 to the economic interest rule. See Ruha v. Guior, 277 A.D.2d 116, = 717=20 N.Y.S.2d 35 (1st Dept. 2000). Since on appeal, Rather has not addressed = his=20 argument as to this cause of action to the individual defendants, we = deem the=20 argument abandoned. In any event, there is no particularized pleading of = allegations that the acts committed by the individual corporate = employees were=20 either beyond the scope of their employment or motivated by their desire = for=20 personal gain. See Petkanas v. Kooyman, 303 A.D.2d 303, 305, 759 = N.Y.S.2d=20 1, 2 (1st Dept. 2003).=20

Accordingly, the judgment of the Supreme Court, New York County (Ira=20 Gammerman, J.H.O.), entered April 14, 2008, dismissing the complaint = asagainst=20 the individual defendants, and bringing up for review an order, same = court and=20 J.H.O., entered April 11, 2008, which, inter alia, granted defendants' = motion to=20 dismiss the complaint to the extent of dismissing the causes of action = for=20 fraud, breach of the implied covenant of fair dealing, and tortious = interference=20 with prospective business relations, and denied the motion to the extent = it=20 sought to dismiss the causes of action for breach of contract and breach = of=20 fiduciary duty, should be modified, on the law, to grant the motion to = dismiss=20 the causes of action for breach of contract and breach of fiduciary = duty, and=20 otherwise affirmed, with costs. Judgment, same court and J.H.O., entered = September 30, 2008, dismissing the amended complaint as against Viacom, = Inc. and=20 dismissing the causes of action for fraud and tortious interference with = contract as against CBS Corporation, and bringing up for review an = order, same=20 court and J.H.O., entered September 23, 2008, which granted CBS and = Viacom's=20 motion to the extent it sought to dismiss the causes of action for fraud = and=20 tortious interference with contract and denied the motion to the extent = it=20 sought to dismiss the cause of action for breach of fiduciary duty, = should be=20 modified, on the law, to dismiss the remaining causes of action against = CBS, and=20 otherwise affirmed, with costs. Plaintiff's appeals from the aforesaid = orders=20 should be dismissed, without costs, as subsumed in the appeals from the=20 respective judgments. The Clerk is directed to enter judgment in favor = of [*9]defendant CBS dismissing the amended = complaint as=20 against it.=20

All concur.
Judgment, Supreme Court, New York County (Ira = Gammerman,=20 J.H.O.), entered April 14, 2008, modified, on the law, to grant the = motion to=20 dismiss the causes of action for breach of contract and breach of = fiduciary=20 duty. Judgment, same court and J.H.O., entered September 23, 2008, = modified, on=20 the law, to dismiss the remaining causes of action against CBS. Appeals = from the=20 aforesaid orders unanimously dismissed, as subsumed in the appeals from = the=20 respective judgments.=20

Opinion by Catterson, J. All concur.
Gonzalez, P.J., Buckley, = Catterson,=20 McGuire, Renwick, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF = THE=20 SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.=20

ENTERED: SEPTEMBER 29, 2008=20

CLERK