Sporn v. MCA Records, Inc.

— Order of the Supreme Court, New York County (Pécora, J.), entered December 22, 1980, which granted defendants’ motion for partial summary judgment dismissing plaintiff’s claim of unfair competition, modified, on the law, to the extent of declaring that plaintiff has no enforceable rights against defendants to the recording of “Get A Job” by virtue of the expiration of the Statute of Limitations, and otherwise affirmed, without costs or disbursements. This appeal involves a claim of unfair competition in connection with an action challenging defendant/ ownership rights to the master phonograph recording to two “rock and roll” songs from the 1950’s. Bell Records, defendant Arista Records’ predecessor, released one of these songs, “Get A Job”, on an “oldie” renewal record in 1965. The instant suit was not commenced until June of 1976. While appellant does not dispute the lower court’s holding that a three-year Statute of Limitations is applicable to an action of this nature, he contends that a new tort occurred every time that defendants licensed and reproduced the master. He compares the present case to those situations, such as trespass or infringement, where the wrongs committed are treated as continuous and recurring, and, therefore, a new cause of action accrues for each injury. However, the facts indicate that the alleged tort — misappropriation of the record — took place in 1965 and was permanent thereafter. (See Sachs v Cluett, Peabody & Co., 265 App Div 497; M & T Chemicals v International Business Machs. Corp., 403 F Supp 1145.) Thus, only one wrong was committed, and Special Term properly dismissed the action as time barred. The court, however, improperly dismissed defendants’ motion for a declaratory judgment. If the plaintiff is not entitled to summary judgment, the court should not dismiss the claim but should enter a declaration in favor of the other party (Lanza v Wagner, 11 NY2d 317; see, also, Saratoga Harness Racing v City of Saratoga Springs, 44 NY2d 980). Concur — Sullivan, Markewich and Milonas, JJ.