INDEX NO.

653767/2016

FILED: NEW YORK COUNTY CLERK 01/13/2017 01:50 PM

NYSCEF DOC. NO. 35

RECEIVED NYSCEF: 01/13/2017

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

BRANDY NORWOOD, professionally

known as BRANDY,

Index No. 653767/2016

Plaintiff,
-againstCHAMELEON ENTERTAINMENT, INC.
and CHAMELEON ENTERTAINMENT
ASSOCIATES INC.
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

COUNTERCLAIMS AND AMEND PLEADINGS

MELONI & MCCAFFREY

A Professional Corporation
Robert S. Meloni
Thomas P. McCaffrey
Justin Ratliff
3 Columbus Circle, 15th Floor
New York, New York 10019
Attorneys for Plaintiff Brandy Norwood

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .........................................................................................1
RELEVANT FACTS ...........................................................................................................2
The California Action .................................................................................................3
The New York Action .................................................................................................4
The Dissolution of CEA..............................................................................................5
ARGUMENT .......................................................................................................................5
I.

LEGAL STANDARDS ..............................................................................................5

A.

C.P.L.R. 3211(a)(1) .........................................................................................5

B.

C.P.L.R. 3211(a)(3). ........................................................................................7

C.

C.P.L.R. 3211(a)(7). ........................................................................................7

II.

CEA HAS NO STANDING TO SUE ........................................................................8

III.

DISMISSAL OF MALICIOUS PROSECUTION COUNTERCLAIM .....................9

A. The California Action Was Not Commenced Against CEA...............................10
B. The California Action Was Filed With Probable Cause ..................................10
C. The California Action Was Not Terminated In CEAs Favor ............................11
D. CEA Did Not Adequately Plead the Element of Malice .................................12
E. CEA Did not Suffer a Special Injury ...............................................................13

IV. AMENDMENTS TO NORWOOD PLEADINGS ...................................................15

A. Standards Under C.P.L.R. 3025 ........................................................................15
B. Amendment To Add Affirmative Defense .........................................................16
C. Amendments to Complaint .................................................................................16
D. No Prejudice As A Result of the Proposed Amendments...................................20
CONCLUSION ..................................................................................................................21

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TABLE OF AUTHORITIES
Cases

Pages

Allianz Underwriters Ins. Co. v. Landmark Ins. Co.,

13 A.D.3d 172, 787 N.Y.S.2d 15 (1st Dept 2004) .................................................7
Bank of New York v. Silverberg,
86 AD3d 274, 926 N.Y.S.2d 532 (2d Dept 2011) ..................................................7
Bass Oil and Chemicals LLC v. Bass,
43 Misc.3d 1217(A), 988 N.Y.S.2d 521 (Sup. Ct. Kings Co. 2014) .....................13
Big J Dev. Co., Inc. v. Big J Dev. Co., Inc.,
44 Misc. 3d 1207(A), 997 N.Y.S.2d 97 (Table) (Sup. Ct. Kings Co. 2014) ...........9
Brach v. Levine,
36 Misc.3d 1213(A), 957 N.Y.S.2d 263 (Sup. Ct. Kings Co. 2012) .................6 n.9
Brandy Norwood v. Chameleon Entertainment, Inc., a New York Corporation,
and Breyon Prescott,
[Case No.: BC615076] .............................................................................................3
Bronxville Knolls, Inc. v. Webster Town Center Partnership,
221 A.D.2d 248, 634 N.Y.S.2d 62 (1st Dept 1995) ...............................................6
Brown v. SlMR Gateway I, LLC,
22 Misc.3d 1139(A), 881 N.Y.S.2d 362 (Table) ...............................................6 n.9
Burt v. Smith,
181 N.Y. 1, 73 N.E. 495 (1905) .............................................................................10
Caniglia v. Chicago Tribune-New York News Syndicate, Inc.,
204 A.D.2d 233, 612 N.Y.S.2d 146 (1st Dept 1994) .......................................7, 14
Caprer v. Nussbaum,
36 A.D.3d 176, 825 N.Y.S.2d 55 (2d Dept 2006) ..................................................7
Castro v. East End Plastic, Reconstructive & Hand Surgery, P.C.,
47 A.D.3d 608, 850 N.Y.S.2d 483 (2d Dept 2008) ....................................9, 10, 12
Deere & Co. v. JPS Development, Inc.,
264 Ga. App. 672, 592 S.E.2d 175 (2003).............................................................17
Dermigny v. Siebert,
79 A.D.3d 460, 911 N.Y.S.2d 619 (1st Dept 2010) .......................................13, 14

ii
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Engel v. CBS, Inc.,

93 N.Y.2d 195, 689 N.Y.S.2d 411 (1999) .................................................10, 13, 14
Facebook, Inc. v. DLA Piper LLP (USA),
134 A.D.3d 610, 23 N.Y.S.3d 173 (1st Dept 2015) .......................................10, 11
Gas Pump, Inc. v. Gen. Cinema Beverages of North Florida,
263 Ga. 583, 436 S.E.2d 207 (1993)......................................................................18
Heaney v. Purdy,
29 N.Y.2d 157, 324 N.Y.S.2d 47 (1971) ...............................................................11
Held v. Kaufman,
91 N.Y.2d 425, 671 N.Y.S.2d 429 (1998) ...............................................................6
Hornstein v. Wolf,
109 A.D.2d 129, 491 N.Y.S.2d 183 (2d Dept 1985) ............................................13
Hudson Valley Marine, Inc. v. Town of Cortlandt,
79 A.D.3d 700, 912 N.Y.S.2d 623 (2d Dept 2010) ..............................................12
Juliano v. McEntee,
150 A.D.2d 524, 541 N.Y.S.2d 232 (2d Dept 1989) ..............................................6
Kearney v. Capelli Enterprises, Inc.,
2012 NY Slip Op 30439(U) (Sup. Ct. N.Y. Co Feb. 24, 2012) .........................6 n.9
Kimso Apartments, LLC v. Gandhi,
24 N.Y.3d 403, 411, 998 N.Y.S.2d 740 (2014) .....................................................15
Kliebert v. McKoan,
228 A.D.2d 232, 643 N.Y.S.2d 114 (1st Dept),
lv denied, 89 N.Y.2d 802 (1996)..............................................................................8
Loeb v. Teitelbaum,
77 A.D.2d 92, 432 N.Y.S.2d 487 (2d Dept 1980),
as amended, 80 A.D.2d 838 (2d Dept 1981) ........................................................11
Leon v. Martinez,
84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994) .................................................................6
Metered Appliances, Inc. v. 75 Owners Corp.,
225 A.D.2d 338, 638 N.Y.S.2d 631 (1st Dept 1996) .............................................8
Mobile Training & Educ., Inc. v. Aviation Ground Schools of America,
28 Misc.3d 1226(A), 958 N.Y.S.2d 61 (Table) (Sup. Ct. N.Y. Co. 2008) ............14

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Moran v. Hurst,
66 A.D.3d 972, 888 N.Y.S.2d 109 (2d Dept 2009) ................................................8
MuroLight v. Farley,
95 AD3d 846, 944 N.Y.S. 2d 541 (2d Dept 2012) .........................................13, 14
M & R European Const. Corp. v. Arnell Const. Corp., LLC,
41 Misc.3d 1212(A), 980 N.Y.S.2d 276 (Sup. Ct. Kings Co. 2013)) ......................8
New York State Assn. of Nurse Anesthetists v. Novello,
2 N.Y.3d 207, 778 N.Y.S.2d 123 (2004) .................................................................7
Nikki Williams v. Chameleon Entertainment, Inc., et al
[Case No. 16-cv-07037-LLS] ................................................................................18
Pagliarulo v. Pagliarulo,
30 A.D.2d 840, 293 N.Y.S.2d 13 (2d Dept 1968) ................................................12
Roberts v. Pollack,
92 A.D.2d 440, 461 N.Y.S.2d 272 (1st Dept 1983) .............................................13
Scarsini Interiors, Inc. v. Just in Time Furniture Warehouse, Inc.,
2009 NY Slip Op 3 1702U (Sup. Ct. N.Y. Co. 2009) .......................................6 n.9
Schel v. Roth,
242 A.D.2d 697, 663 N.Y.S.2d 609 (2d Dept 1997) ..............................................9
Squire Records v. Vanguard Recording Soc.,
25 A.D.2d 190, 268 N.Y.S.2d 251 (1st Dept 1966) .............................................13
State of New York v. Wolowitz,
96 A.D.2d 47, 468 N.Y.S.2d 131 (2d dept 1983) ...................................................9
Town of N. Hempstead v. Sea Crest Constr. Corp.,
119 A.D.2d 744, 501 N.Y.S.2d 156 (2d Dept 1986) ..............................................8
U.S. Bank, N.A. v. Collymore,
68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dept 2009) ................................................7
Weidlich v. Weidlich,
177 Misc. 246, 30 N.Y.S.2d 326 (Sup. Ct. N.Y. Co. 1941 ...........................11, n.11
Wells Fargo Bank Minn., N.A. v. Mastropaolo,
42 A.D.3d 239, 837 N.Y.S.2d 247 (2d Dept 2007) ................................................7
Wilhelmina Models, Inc. v Fleisher,
19 A.D.3d 267, 797 N.Y.S.2d 83 (1st Dept 2005) ...............................................14
iv
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Statutes
California Business & Professions Code 17200. ...........................................................3
C.P.L.R. 3025(c) ..........................................................................................................1, 14
C.P.L.R. 3211(a)(1) .............................................................................................1, 5, 9, 15
C.P.L.R. 3211(a)(3) ...................................................................................1, 5, 6, 9, 15, 16
C.P.L.R. 3211(a)(7) .......................................................................................................7, 8
McKinneys Business Corporation Law 1005. ..........................................................8 n.10
McKinneys Business Corporation Law 1006. ..........................................................8 n.10
New York Tax Law 203. ...................................................................................................8
OCGA 14-2-1421.............................................................................................................17
OCGA 14-2-1421(c) ........................................................................................................17
OCGA 1421422(a) .......................................................................................................17

v
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PRELIMINARY STATEMENT1
Plaintiff Brandy Norwood, professionally known as Brandy (hereafter Norwood or
Plaintiff)

submits this memorandum of law in support of her motion to dismiss the

Counterclaims2 asserted by Defendant Chameleon Entertainment Associates, Inc. (hereafter

CEA) pursuant to C.P.L.R. 3211(a)(1), (defense founded upon documentary evidence - i.e., the
dissolution proclamation); and C.P.L.R. 3211(a)(3) (based on CEAs lack of capacity to sue), on
the grounds that CEA was dissolved by proclamation by the New York Secretary of State on June
29, 2016.3 To the extent Norwoods C.P.L.R. 3211(a)(3) argument is challengeable as waived,
Norwood hereby moves pursuant to C.P.L.R. 3025(c) to amend her answer to the counterclaims to
conform to the documentary proof submitted under C.P.L.R. 3211(a)(1).
Norwood also moves to dismiss CEAs claim for malicious prosecution pursuant to
3211(a)(7) for failure to state a claim on the grounds that the original civil suit filed by Norwood in
California, (the California Action) (1) was not filed against CEA; (2) was filed with probable
cause; (3) was not filed with the required malice; (4) was not terminated in favor of CEA; and (4)
that CEA has failed to allege the special damages required to state an actionable claim.
For each of the above reasons, all counterclaims asserted by CEA must be dismissed.
Norwood also hereby requests leave to amend her Reply to the Counterclaims, and to amend
her Complaint to ensure that the proper legal entity is named as the defendant herein, a Georgia
corporation named Chameleon Entertainment, Inc., and adding additional claims relating to that
defendant, based on information discovered subsequent to the filing of the Complaint.
1

This memorandum of law is accompanied by the Affirmation of Robert S. Meloni dated January 11, 2017 (hereafter
Meloni Affirm.).

A copy of CEAs Answer and Counterclaims [Dkt. No. 6] is attached to the Meloni Affirmation as Exhibit A.

The confirmation of dissolution by proclamation or annulment of authority of CEA is attached to the Meloni Affirm.,
as Exhibit G.

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RELEVANT FACTS
Norwood is a Grammy award-winning singer, actress and entrepreneur. Complaint, 1
[Dkt. No. 2]. CEA was a corporation formed pursuant to the laws of the state of New York on
October 21, 2009. This case is based on an exclusive recording artist agreement dated May 25,
2011 (the Agreement) between Norwood and Chameleon Entertainment, Inc., a Georgia
corporation (CEI)4 See Meloni Affirm., 11(c), Ex. C. The Agreement provided for an initial
contract period in which Norwood was required to deliver one studio album, and CEI would have
four separate options during which Norwood would be required to deliver an additional studio
album during each option period. In exchange, CEI promised to pay Norwood a Recording Fund
for each album to cover the costs of production, and also pay royalties based on sales of each album.
Pursuant to the Agreement, CEI also agreed that it would pay annual Minimum Compensation
payments during each of the option years. CEI satisfied the Minimum Compensation payment
obligation for the first Contract Year. However, CEI has not paid Norwood any of the Minimum
Compensation payments due under the Agreement for the option periods. Norwood alleges that she
has performed all her obligations under the Agreement, and that CEI lost any rights to Norwoods
recording artist services based on its repudiation of the Agreement. Norwood further alleges that
CEI wrongfully suspended the term of the Agreement and, as a result, the term of the Agreement
lapsed or was otherwise terminated due to CEIs failure to advise Norwood in writing that it would
4

The party to the contract at issue in the action is Chameleon Entertainment, Inc. (CEI). See Meloni Affirm, Ex. C.
The New York corporation called Chameleon Entertainment Associates, Inc., (CEA), the only defendant who has
appeared in this action, is owned by Breyon Prescott. See Meloni Affirm, Ex. E(ii) (Affidavit of Breyon Prescott in
Support of CEA Motion to Dismiss) at 1. CEA has asserted that it is the contracting party, not CEI, the party named in
the Agreement, blaming the confusion on a typographical error on the Agreement. See Counterclaims, Ex. A n. 1 and
7 (As the result of a typographical error on the Agreement, CEA is stated to be Chameleon Entertainment Inc.
instead of Chameleon Entertainment Associates Inc.). Given that CEA was the only party to respond to the California
Action, and given its position that it is the proper party to the contract, Norwood protected her interests and named CEA
in the complaint as a defendant in this action. With full reservation of rights and for purposes of this motion only,
Norwood will assume arguendo, that CEA is the only party responding to the complaint and seeking to enforce the
contract at issue. However, this memorandum of law will continue to refer to CEI, the Georgia corporation, and not
CEA as the party to the Agreement.

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permit Norwood to fulfill her recording commitment for the first option period. Norwood alleges
various causes of action including, but not limited to, claims for declaratory judgment that the
Agreement is terminated and/or repudiated, and for breach of contract based on CEIs breach of the
Agreement by failing to pay Minimum Compensation and royalties.
A.

The California Action.

In March 2016, Norwoods prior counsel filed an action in the Superior Court of the State of
California For the County of Los Angeles, Central District entitled Brandy Norwood v. Chameleon
Entertainment, Inc., a New York Corporation, and Breyon Prescott [Case No.: BC615076] (the
California Action).5 The complaint in the California Action included causes of action against
Chameleon Entertainment, Inc.6 and its owner individually, Breyon Prescott, for (1) intentional
interference with contract; (2) intentional interference with business relations; (3) violation of
California Business & Professions Code 17200; and (4) declaratory relief. Meloni Affirm., Ex. D.
CEA and Prescott responded in the California Action and moved to dismiss the California Action
because the Agreement contained a forum selection clause requiring that any disputes Norwood had
with CEI under the Agreement be adjudicated in a New York court pursuant to New York law.
Meloni Affirm., Ex. E. The affidavit of Breyon Prescott submitted in support of CEAs motion
stated as follows: I am one of the Defendants in the above-captioned matter. I am also the
President and CEO of Chameleon Entertainment Associates, Inc., sued herein as Chameleon

Attached to the Meloni Affirm. respectively, is the Complaint filed in the California Action (Ex. D); the motion papers
relating to CEAs and Prescotts motion to dismiss the California Action (Ex. E), and the Order of Judge Michael
Johnson, Superior Court Judge, dismissing the California Action based on the forum selection clause (Ex. F).

See note 2, infra. The first time Norwood was made aware of CEAs position that it was the contracting party to the
Agreement was in their motion in the California Action. Indeed, given that CEA was not named by Norwood as a party
in the California Action, its claim for malicious prosecution has no basis in fact or law.

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Associates, Inc. (Chameleon) another defendant in the above-captioned matter. See Meloni
Affirm., Ex. E(ii).7
Norwood argued that the forum selection cause did not govern the types of claims asserted
by Norwood in the California Action and that enforcement of the Agreements forum selection
clause would be unreasonable under Californias strong public policies. See Meloni Affirm., Ex. D
and Ex. E (iii). The California Court agreed with CEA that the forum selection clause was
controlling and dismissed the California Action for lack of jurisdiction. It did not reach or rule on
the substance of any of the claims asserted by Norwood. See Meloni Affirm., Ex. F.
B.

The New York Action.

After retaining present litigation counsel, Norwood filed suit in New York Supreme

Court on July 18, 2016. Norwood asserted the following claims: (1) Declaratory Judgment that the
Agreement was repudiated by CEI; (2) Declaratory Judgment that the term of the Agreement was
improperly suspended; (3) Declaratory Judgment that the Agreement was terminated on its own
terms; (4) Breach of contract based on CEIs failure to pay Norwood any portion of the Recording
Fund for the second album; (5) Declaratory Judgment that exculpatory language in paragraph
15.01(d) of the Agreement to avoid paying the minimum annual compensation CEI guaranteed
Norwood in paragraphs 15.01(a) and 15.01(b) is void as against Californias strong public policy;
(6) breach of contract based on CEIs failure to pay Norwood the guaranteed income described in
paragraphs 15.01(a) and 15.01(b); and (7) for an accounting. See Dkt. No. 2.
In its Answer and Counterclaims, filed on August 25, 2016, CEA asserted the following
counterclaims: (1) Breach of contract based on Norwoods failure to cooperate with CEA in

Prescotts reference to another defendant, an entity he called Chameleon Associates, Inc., is puzzling, if not an
outright falsehood, since neither Chameleon Entertainment Associates, Inc. nor Chameleon Associates, Inc. were
named defendants in the California Action. As explained in greater detail in this memorandum, Prescott has a habit of
using corporations (real or imagined, existing or not, inactive or active) as if he were in a shell game.

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connection with the recording of additional master recordings and in connection with auditions, and
by self-releasing a single entitled Beggin & Pleadin; and (2) Malicious prosecution based on
Norwoods filing the California Action. See Dkt. No. 6.
C.

The Dissolution of CEA.

On June 26, 2016, CEA was legally dissolved by proclamation or annulment of

authority by the New York Secretary of State for failure to file and/or pay franchise tax returns for
two or more years. See Meloni Affirm. 11(g), Ex. G. CEA was never reinstated. Id. 11(g).8
CEA filed its Verified Answer and Counterclaims on August 25, 2016. See Meloni
Affirm., Ex. A. As a result, CEA cannot assert any of the counterclaims in this action because it has
no legal existence and thus no standing to sue. Finally, CEAs claim for malicious prosecution is
also fatally defective because the California Action against CEI and Prescott: (1) was not filed
against CEA; (2) was filed by California counsel with probable cause; (3) was not terminated in
favor of CEA; (4) CEA has failed to adequately allege the element of malice; and (5) CEA has
not alleged or suffered the kind of special damages required to assert a claim for malicious
prosecution under New York law.
ARGUMENT
I. LEGAL STANDARDS
A. C.P.L.R. 3211(a)(1).
C.P.L.R. 3211(a)(1) provides for dismissal where a defense to the claim is founded upon
documentary evidence. A partys cause of action will be dismissed pursuant to C.P.L.R. 3211(a)(1)
where documentary evidence conclusively establishes a defense to the asserted claim as a matter
8

The Georgia corporation called Chameleon Entertainment, Inc., which is also owned by Prescott (hereafter CEIGA) formed on December 27, 2002 and administratively dissolved by the State of Georgia on July 9, 2005. See Meloni
Affirm., Ex. H. As part of this motion, Norwood seeks to amend her complaint to include CEI-GA in place of CEI (the
New York corporation) as a defendant in this action.

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of law. Held v. Kaufman, 91 N.Y.2d 425, 671 N.Y.S.2d 429 (1998); Leon v. Martinez, 84 N.Y.2d
83, 614 N.Y.S.2d 972 (1994); Bronxville Knolls, Inc. v. Webster Town Center Partnership, 221
A.D.2d 248, 634 N.Y.S.2d 62, 63 (1st Dept 1995); Juliano v. McEntee, 150 A.D.2d 524, 541
N.Y.S.2d 232, 233 (2d Dept 1989).
Here, the documentary evidence directly refutes a specific allegation concerning CEAs
legal standing to assert the counterclaims, and establishes that CEA has no legal standing to sue in
New York because it is a dissolved corporation.9 Moreover, the documentary evidence that is
directly referred to in the complaint i.e., the courts decision dismissing the California Action
demonstrates that CEAs claim for malicious prosecution is also irreparably defective because: (1)
the California Action was not filed against CEA; (2) CEA cannot prove that the California Action
was not filed with probable cause; (3) the California Action was not terminated in favor of CEA; (4)
CEA has failed to adequately allege the required element of malice for the malicious prosecution
claim; and (5) CEA has failed to adequately allege the required special damages for the malicious
prosecution claim. For each of the above reasons, the malicious prosecution counterclaim must be
dismissed.

Attached as Exhibit G to the Meloni Affirmation is the computer printout of the results of a search of the website of the
New York State Department of State on January 11, 2017 which demonstrates that CEAs status is inactive i.e., not a
corporation in good standing as it was dissolved by proclamation on June 29, 2016. See Meloni Affirm., 11(e) and Ex.
G. This Court can take judicial notice of the computer printout of a governmental website like the Department of State
and treat it as exempt from the hearsay rules. See Brach v. Levine, 36 Misc.3d 1213(A), 957 N.Y.S.2d 263 (Sup. Ct.
Kings Co. 2012) (court admitted defendants documentary evidence under C.P.L.R. 3211(a)(1) including a computer
printout from the New York State Department of State indicating that one of the plaintiffs was inactive.); Kearney v.
Capelli Enterprises, Inc., 2012 NY Slip Op 30439(U) (Sup. Ct. N.Y. Co Feb. 24, 2012) (Uncertified computer printout
from New York State Department of State website admissible); Brown v. SlMR Gateway I, LLC, 22 Misc.3d 1139(A),
881 N.Y.S.2d 362 (Table), 2009 WL 806792 (Sup. Ct. Kings Co. 2009) (department of state website printout was
admissible as a business records exception to the hearsay rule under C.P.L.R. 4518(a)and under State Technology
Law302); Scarsini Interiors, Inc. v. Just in Time Furniture Warehouse, Inc., 2009 NY Slip Op 3 1702U (Sup. Ct. N.Y.
Co. 2009) (uncertified copy printed from government maintained website is exempt from C.P.L.R. hearsay rules).

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B. C.P.L.R. 3211(a)(3).
Norwood also moves pursuant to C.P.L.R. 3211(a)(3) to dismiss the counterclaims based
upon CEAs lack of legal standing as a legally dissolved New York corporation to assert those
counterclaims. See Bank of New York v. Silverberg, 86 A.D.3d 274, 277, 926 N.Y.S.2d 532 (2d
Dept 2011). A challenge to standing pursuant to 3211(a)(3) requires an inquiry into whether a
litigant has an interest ... in the lawsuit that the law will recognize as a sufficient predicate for
determining the issue at the litigant's request. Caprer v. Nussbaum, 36 A.D.3d 176, 182, 825
N.Y.S.2d 55 (2d Dept 2006). See New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d
207, 211, 778 N.Y.S.2d 123 (2004); Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239,
242, 837 N.Y.S.2d 247 (2d Dept 2007). Where, as here, the issue of standing is raised by a
defendant, a plaintiff must prove its standing in order to be entitled to relief. See U.S. Bank, N.A. v.
Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 (2d Dept 2009). Given that CEA is a dissolved
corporation under New York law, it has no standing to assert the counterclaims in this action.
C. C.P.L.R. 3211(a)(7).
Finally, Norwood moves to dismiss CEAs counterclaim for malicious prosecution under
C.P.L.R. 3211(a)(7). A party may move for judgment dismissing one or more causes of action
asserted against him on the ground that . . . the pleading fails to state a cause of action . . . .
C.P.L.R. 3211(a)(7).

In such a motion, the counterclaim must be construed in the light most

favorable to the counterclaim-plaintiff, and all factual allegations must be accepted as true.
Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172, 174, 787 N.Y.S.2d 15 (1st
Dept 2004). However, allegations consisting of bare legal conclusions, as well as factual claims
inherently incredible or flatly contradicted by documentary evidence are not presumed to be true
nor accorded every favorable inference. Caniglia v. Chicago Tribune-New York News Syndicate,

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Inc., 204 A.D.2d 233, 233-34, 612 N.Y.S.2d 146 (1st Dept 1994). Any allegation that states purely
legal opinions or conclusions, rather than facts, will not be afforded any weight. See Kliebert v.
McKoan, 228 A.D.2d 232, 643 N.Y.S.2d 114 (1st Dept), lv denied, 89 N.Y.2d 802 (1996).
Norwood has established that CEA cannot satisfy any of the elements required to prove a claim for
malicious prosecution, where the absence of any one of them would doom the claim. Therefore,
dismissal of the pleading pursuant to C.P.L.R. 3211 (a)(7) will be warrantedin those situations
in which it is conclusively established that there is no cause of action Town of N. Hempstead v. Sea
Crest Constr. Corp., 119 A.D.2d 744, 501 N.Y.S.2d 156 (2d Dept 1986).
II. AS A DISSOLVED CORPORATION, CEA HAS NO STANDING TO SUE.
Under New York Tax Law 203, the New York Secretary of State may dissolve a
corporation that fails to pay taxes. See M & R European Const. Corp. v. Arnell Const. Corp., LLC,
41 Misc.3d 1212(A), 980 N.Y.S.2d 276 (Sup. Ct. Kings Co. 2013) (citing Tax Law 203). Once a
corporation has been dissolved by proclamation for failure to pay taxes, absent subsequent
reinstatement, the corporation is legally dead, and is no longer permitted to sue, except as
specifically permitted by statute. See Metered Appliances, Inc. v. 75 Owners Corp., 225 A.D.2d
338, 638 N.Y.S.2d 631, 632 (1st Dept 1996) (As plaintiff did not seek reinstatement, the IAS court
properly held that it had no legal capacity to commence the action and therefore, dismissal of the
complaint was warranted). See also Moran v. Hurst, 66 A.D.3d 972, 888 N.Y.S.2d 109 (2d Dept
2009).10
The documentary evidence demonstrates that CEA has been dissolved for failing to pay its
corporate franchise taxes. See Meloni Affirm., 11(g), Ex, G. As such, CEA does not enjoy the
right to bring suit in the courts of this state. Weiss v. Markel, 110 A.D.3d 869, 871, 973 N.Y.S.2d

10

Specifically, pursuant to statute, the dissolved corporation may only institute a suit, if related to the winding up of the
affairs of the corporation. See Business Corporation Law 1005, 1006.

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318 (2d Dept 2013) (When the loan transaction at issue occurred, AquaTrol was a dissolved
corporation, and there is no suggestion that the loan was related to the winding up of AquaTrol's
affairs . . . . Accordingly, AquaTrol lacks capacity to sue the defendants for their actions in
connection with the loan.). See also Big J Dev. Co., Inc. v. Big J Dev. Co., Inc., 44 Misc. 3d
1207(A), 997 N.Y.S.2d 97 (Table) (Sup. Ct. Kings Co. 2014) (Dismissing claim pursuant to
3211(a)(3) based upon the dissolved corporate plaintiffs lack of capacity to sue). As a result, based
upon this documentary evidence, CEA a dissolved corporation - has no standing to sue Norwood
and all counterclaims against her must be dismissed. See C.P.L.R. 3211 (a) (1) and (3).
III. DISMISSAL OF MALICIOUS PROSECUTION COUNTERCLAIM.
CEAs claim for malicious prosecution must also fail under C.P.L.R. 3211(a)(7). A
defendant's objection that a complaint fails to state a cause of action under C.P.L.R. 3211(a)(7)
may be raised in a motion at any time even if such objection was not raised in the answer. Schel
v. Roth, 242 A.D.2d 697, 663 N.Y.S.2d 609 (2d Dept 1997) (quoting State of New York v.
Wolowitz, 96 A.D.2d 47, 54, 468 N.Y.S.2d 131 (2d dept 1983)). Here, CEAs claim for malicious
prosecution fails to state a claim upon which relief may be granted.
The elements of the tort of malicious prosecution are: (1) prosecution of a civil action
against the party alleging malicious prosecution, (2) by or at the instance of the other party, (3)
without probable cause, (4) with malice, (5) which terminated in favor of the [party alleging
malicious prosecution], and (6) causing special injury. Castro v. East End Plastic, Reconstructive
& Hand Surgery, P.C., 47 A.D.3d 608, 609, 850 N.Y.S.2d 483 (2d Dept 2008). Here, CEA is
unable to demonstrate any of the elements as a matter of law that the California Action was bought
by Norwood against CEA, without probable cause, was terminated in CEAs favor and that CEA
suffered the required special injury as a result of having to respond to the California Action.

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A. The California Action was not commenced against CEA.

As demonstrated by the documentary evidence, the California Action was never asserted
against CEA, who was not named as a party thereto, so CEA has no claim for malicious prosecution
against Norwood as a result of the filing of the California Action. See Castro, 47 A.D.3d at 609;
Meloni Affirm., Ex. D.
B. The California Action was Filed With Probable Cause.
With respect to the element of probable cause, plaintiff must allege that the underlying
action was filed with a purpose other than the adjudication of a claim and that there was an entire
lack of probable cause in the prior proceeding. Facebook, Inc. v. DLA Piper LLP (USA), 134
A.D.3d 610, 613-14, 23 N.Y.S.3d 173 (1st Dept 2015) (quoting Engel, 93 N.Y.2d at 204). The
burden remains with CEA to prove the lack of probable cause. Id. at 614. Moreover, the lack of
probable cause must be patent. Id. 134 A.D.3d at 614. For purposes of a claim for malicious
prosecution:
Probable cause is the knowledge of facts, actual or apparent, strong enough to justify
a reasonable man in the belief that he has lawful grounds for prosecuting the
defendant in the manner complained of. The want of probable cause does not mean
the want of any cause, but the want of any reasonable cause, such as would persuade
a man of ordinary care and prudence to believe in the truth of the charge.
Id. (quoting Burt v. Smith, 181 N.Y. 1, 56, 73 N.E. 495 (1905)). Here, Norwood asserted claims
against CEI (not CEA) and Prescott in the California Action arising out of Norwoods position that
the Agreement was terminated. See Meloni Affirm., Ex. D. The complaint in the California Action
was dismissed solely on the grounds of the mandatory forum section clause in the Agreement as to
CEI and, as to Prescott, that he was closely related to the contractual relationship between
Norwood and CEI and, therefore, the forum selection clause applied to him as well. The dismissal
was not based on the merits of claims asserted by Norwood. Id. Ex. F.

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The dismissal of the

California Action based on the application of a forum selection clause does not prove lack of
probable cause as to the merits of the action that was dismissed. Heaney v. Purdy, 29 N.Y.2d 157,
160, 324 N.Y.S.2d 47 (1971).11 Norwoods filing the California Action was based on both tortious
conduct by an individual who was not a party to the Agreement [Breyon Prescott], as well as a
legitimate business dispute between Norwood and CEI, the parties to the Agreement. Thus, CEA
cannot carry its burden of proving that Norwood filed the California Action without probable cause.
Nor, for that matter, can CEA carry its burden that the California action was filed with malice.
Again, the California Action was not filed against CEA. CEAs conclusory allegations to the
contrary are inadequate to support its claim for malicious prosecution. Facebook, Inc. v. DLA Piper
LLP (USA), 134 A.D.3d at 614 (Inasmuch as plaintiffs cannot demonstrate the existence of the
element of probable cause, we need not consider the remaining elements of actual malice or special
injury.)
C. The California Action Was Not Terminated In CEAs Favor.
Termination on the merits in favor of the plaintiff is a sine qua non for a cause of action for
malicious prosecution. Heaney v. Purdy, 29 N.Y.2d 157, 160 (1971). See Loeb v. Teitelbaum, 77
A.D.2d 92, 98, 432 N.Y.S.2d 487 (2d Dept 1980), as amended, 80 A.D.2d 838 (2d Dept 1981). In
the absence of a factual dispute relative to the circumstances of the dismissal, favorable termination
is a question for the court. Loeb, 77 A.D. 2d at 98.
Courts require that a party bringing a malicious prosecution claim must prove that a prior
case, concerning the same events and circumstances as the current case, was decided on the merits
in favor of the moving party. For this reason, [t]he favorable termination element must be
established by evidence that the court passed on the merits of the charge or claimunder such
11

Moreover, whereas here, Norwood acted in good faith upon the opinion of counsel in filing the California Action
(however erroneous that opinion may be), it is sufficient evidence of a probable cause, and a good defense to an action
for a malicious prosecution. See Weidlich v. Weidlich, 177 Misc. 246, 252, 30 N.Y.S.2d 326 (Sup. Ct. N.Y. Co. 1941).

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circumstances as to shownonliability, or evidence that the action was abandoned under

circumstances which fairly imply the plaintiffs innocence.

Castro v. East End Plastic,

Reconstructive & Hand Surgery, P.C., 47 A.D.3d 608, 609, 850 N.Y.S.2d 483 (2d Dept 2008)
(quoting Pagliarulo v. Pagliarulo, 30 A.D.2d 840, 293 N.Y.S.2d 13 (2d Dept 1968)). See also
Hudson Valley Marine, Inc. v. Town of Cortlandt, 79 A.D.3d 700, 703, 912 N.Y.S.2d 623 (2d Dept
2010). CEA has failed to satisfy these mandates.
CEA was not a named party in the California Action. The California Action was dismissed
for lack of jurisdiction before issue was joined. There was no adjudication on the merits in the
California Action and therefore a claim for malicious prosecution is not warranted.
D. CEA Did Not Adequately Plead the Element of Malice.
CEA asserts a single conclusory allegation that the California Action was filed out of
malice towards CEA: Upon information and belief, Plaintiff commenced the California Action
against Defendants with malice and solely to require the Defendants to retain counsel in California
and thus cause Defendants financial harm. See Meloni Affirm, Ex. A, 45. As mentioned
previously, Norwood never asserted any claims against CEA, so there can be no allegations asserted
against CEA, malicious or otherwise. Moreover, the bare allegations are insufficient to satisfy the
element of malice.
The California Action included contract claims by Norwood, a California resident, against
CEI regarding a business dispute that even CEA admits exists. It was premised on Norwoods belief
that Californias public policies were implicated, thus warranting her choice of venue there, as well
as the fact that Prescott, also a California resident (and not a party to the Agreement), was the
primary defendant named as the target of the tort claims asserted therein. Thus, the California

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Actions primary allegations involved tortious conduct which took place entirely in California.12
Where other motives exist for asserting a claim, such as profit, self-interest, or business advantage, a
prima facie tort like malicious prosecution does not lie. Roberts v. Pollack, 92 A.D.2d 440, 447, 461
N.Y.S.2d 272 (1st Dept 1983) (citing Squire Records v. Vanguard Recording Soc., 25 A.D.2d 190,
268 N.Y.S.2d 251 (1st Dept 1966)). In its counterclaims, CEA utterly fails to allege facts sufficient
to demonstrate that in filing the California Action against CEI and Prescott, Norwood was
motivated solely by a desire to harm or torment CEA. On its face, the complaint in the California
Action is based on Norwoods desire to vindicate important rights under California law, based on
longstanding public policies, and contractual rights and remedies which is at the heart of both
actions.
E. CEA Did Not Suffer a Special Injury.
As for special injury, the final element of a malicious prosecution claim, [t]he mere
bringing of a civil suit, even if groundless and ill motivated, does not result in special damage or
injury sufficient to sustain an action for malicious prosecution. Hornstein v. Wolf, 109 A.D.2d
129, 132, 491 N.Y.S.2d 183 (2d Dept 1985). See also Dermigny v. Siebert, 79 A.D.3d 460, 79
A.D.3d 460 (1st Dept 2010). To show special injury, the defendant must abide some concrete
harm that is considerably more cumbersome than the physical, psychological or financial demands
of defending a lawsuit. Bass Oil and Chemicals LLC v. Bass, 43 Misc.3d 1217(A), 988 N.Y.S.2d
521 (Sup. Ct. Kings Co. 2014) (quoting Engel v. CBS, Inc., 93 N.Y.2d 195, 205, 689 N.Y.S.2d 411
(1999)). The party is required to allege interference with his or her person or property because of
resort to a provisional remedy, such as arrest, attachment, injunction, receivership, or notice of

12

This is a case brought by one California resident [Norwood] against another California resident [Prescott] based on
conduct that took place almost exclusively in California, which violates a California statute designed to protect
California citizens from unfair and unlawful business practices. See Meloni Affirmation, Ex. E (Norwood Opposition
to [CEA] Motion to Dismiss] at 1.

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pendency, or something substantially equivalent to the provisional remedy effect. See Engel v.
CBS, Inc., 93 N.Y.2d 195, 205, 689 N.Y.S.2d 411 (1999); Dermigny v. Siebert, 79 A.D.3d 460, 460,
911 N.Y.S.2d 619 (1st Dept 2010); MuroLight v. Farley, 95 A.D.3d 846, 846847, 944 N.Y.S. 2d
541 (2d Dept 2012). Again, CEA was never named as a defendant in the California Action.
Moreover, in the Verified Answer and Counterclaims, CEA claims that Norwoods filing
and prosecution of the California Action caused CEA special damages include, but are not limited
to, CEA having incurred significant legal fees to successfully defend themselves in the California
Action. See Meloni Affirm, Ex. A, 49.. Even were CEA a named defendant, the costs of
defending the California Action does not constitute special injury for purposes of a wrongful
prosecution claim. Mobile Training & Educ., Inc. v. Aviation Ground Schools of America 28
Misc.3d 1226(A), 958 N.Y.S.2d 61 (Table), 2010 WL 3310257 (Sup. Ct. N.Y. Co. 2008) (rejected
malicious prosecution claim holding [h]ere, MT & E alleges only that it suffered the expense of
defending against the lawsuit in California, which is decidedly not special.). CEAs conclusory
allegations that, as a result of the California Action, it has suffered harm to its reputation and lost
business does not satisfy the C.P.L.R. 3211(a)(7) pleading standard. Caniglia v. Chicago TribuneNew York News Syndicate, Inc., 204 A.D.2d 233, 233-34, 204 A.D.2d 233 (1st Dept 1994). See
also Wilhelmina Models, Inc. v Fleisher, 19 A.D.3d 267, 797 N.Y.S.2d 83 (1st Dept 2005)
(granting dismissal under C.P.L.R. 3211(a)(7) court held that to succeed on a claim for malicious
prosecution a plaintiff must allege and prove special injury). In the end, CEA has failed to
satisfy any of the elements to assert an actionable malicious prosecution claim.

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IV. AMENDMENTS TO NORWOOD PLEADINGS.

A. Standards Under C.P.L.R. 3025.
Under C.P.L.R. 3025, a party may amend a pleading at any time by leave of court
(C.P.L.R. 3025[b]), before or after judgment to conform [the pleading] to the evidence (C.P.L.R.
3025[c]).

Prejudice is the key to any motion to amend under C.P.L.R. 3025(c). In Kimso

Apartments, LLC v. Gandhi, the Court of Appeals stated:

Prejudice is more than the mere exposure of the [party] to greater liability
(citations omitted). Rather, there must be some indication that the [party] has been
hindered in the preparation of [the party's] case or has been prevented from taking
some measure in support of [its] position (id.). The burden of establishing prejudice
is on the party opposing the amendment (citations omitted). The party opposing the
amendment has the burden of establishing prejudiceMoreover, prejudice is more
than the mere exposure of the party to greater liability, there must be some
indication that the [party] has been hindered in the preparation of [the partys] case
or has been prevented from taking some measure in support of [its] position.
Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 745 (2014).
Norwoods proposed amendments include the following: (1) addition of the affirmative
defense of lack of standing; (2) amendments relating to the Complaints allegation concerning the
state of incorporation of Defendant Chameleon Entertainment, Inc. from New York corporation
to a Georgia Corporation; and (3) adding a claim for declaratory judgments that Chameleon
Entertainment, Inc., a Georgia Corporation is the real party to the Agreement and, since it was
administratively dissolved in 2005 and never reinstated, its status as a dissolved corporation at the
time it signed the Agreement renders the Agreement void and unenforceable.
A copy of Norwoods [Proposed] Amended Reply to Counterclaims is annexed to the
Meloni Affirmation as Exhibit I.
A copy of Norwoods [Proposed] Amended Complaint is annexed to the Meloni
Affirmation as Exhibit J.

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B. Amendment to Add Affirmative Defense.

Should this Court determine that Norwoods defense of lack of standing is challengeable as
waived under C.P.L.R. 3211(a)(3), Norwood respectfully moves pursuant to C.P.L.R. 3025(c) to
amend her Reply to CEAs counterclaims to conform to the documentary proof that CEA and
Chameleon Entertainment, Inc. have been legally dissolved. Here, the proffered documentary
evidence under C.P.L.R. 3211(a)(1) demonstrates that counterclaimant CEA, a New York
Corporation, is an inactive corporation under New York law. See Meloni Affirm, 11(g), Ex. G.
CEA filed its counterclaims on August 25, 2016, almost five months ago. Paragraph 16 of
CEAs counterclaims states it was in the process of re-instating the company. There is no
prejudice to CEA by this Court allowing an amendment to Norwoods reply to counterclaims to
conform the pleadings to the documentary evidence and assert the defense of lack of standing under
C.P.L.R 3211(a)(3).13 CEA has no standing to assert any claims against Norwood. See Meloni
Affirm. Ex. I.
C. Amendments to Complaint.
The Complaint, filed July 18, 2016, alleges that both corporate defendants Chameleon
Entertainment, Inc. (CEI) and Chameleon Entertainment Associates, Inc. (CEA) were New
York Corporations. See Complaint [Dkt. No. 2] at 2. At that time, plaintiff believed that the
contracting party was Chameleon Entertainment, Inc., the New York Corporation, the entity named
in the Agreement. Since Defendants counsel claimed in the California Action that the correct
entity was named Chameleon Entertainment Associates, Inc. due to a typographical error, both
entities were named in this action, assuming that discovery or further investigation would flush out
which one was the correct entity. Since that time, Norwoods counsel discovered that the New
York Corporation called Chameleon Entertainment, Inc. has no connection to Breyon Prescott, the
13

A copy of Norwoods Amended Answer to Counterclaims is annexed to the Meloni Affirmation as Exhibit I.

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sole owner of CEA, and that Prescott formed a Georgia Corporation in 2002 also called Chameleon
Entertainment, Inc., of which he is also the owner (CEI-GA). See Meloni Affirm., 4-7, Ex. H.
In its Answer in this action, as in the California Action, CEA alleged that CEA is the entity
that entered into the Agreement with Norwood on May 25, 2011, not Chameleon Entertainment,
Inc., and that the reference to the latter corporate name was the result of a typographical error on
the Agreement between CEA and Plaintiff, [and that] CEA is stated to be Chameleon
Entertainment Inc. instead of Chameleon Entertainment Associates Inc. See Meloni Affirm., Ex.
A, n. 1.
Whether or not this is true, and Norwood submits that it is not, Norwoods request to amend
her Complaint to properly identify the Prescott-owned corporation, the Georgia entity called
Chameleon Entertainment Inc. is necessary to address this alleged misnomer and any confusion
caused by the Defendants. See Meloni Affirm., Ex. J.
The distinction is critical because CEI-GA was administratively dissolved on July 9, 2005.
See Meloni Affirm., 6, Ex. H. That was more than five years before the date of execution of the
Agreement with Norwood. Georgias winding up statute, [OCGA 14-2-1421] has a limited
purpose of permitting the continuation of the existence of an administratively-dissolved corporation.
However, there is a basic restriction on the activities of administratively-dissolved corporations set
forth in OCGA 14-2-1421(c): A corporation administratively dissolved continues its corporate
existence but may not carry on any business except that necessary to wind up and liquidate its
business and affairs under Code Section 14-2-1405. An additional limitation is provided in OCGA
14-2-1422(a), which provides an administratively-dissolved corporation a period of only two
years in which to seek reinstatement as a viable corporate entity. What is most critical for purposes
of this action is that an administratively-dissolved Georgia corporation like CEI-GA cannot, after

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the time its demise is deemed complete (at the end of the statutory period for winding up its affairs,
which in this case was not later than July 9, 2010) initiate any activity unnecessary to winding up its
affairs, and any activities at all unrelated to winding up (which in this case was not later than July 9,
2007).
The effect of the expiration of the time for CEI-GAs reinstatement, and in the absence of
such reinstatement, its legal demise was deemed complete on July 9, 2007. That means CEI-GA
could not initiate any activity after July 9, 2007 since it ceased to exist for any purpose. See Gas
Pump, Inc. v. Gen. Cinema &c., 263 Ga. 583, 584-585, 436 S.E.2d 207 (1993); Deere & Co. v. JPS
Development, Inc., 264 Ga. App. 672 (2003).
Virtually every document of which Norwood is aware indicates that the party to the
Agreement was Chameleon Entertainment, Inc., the Georgia Corporation, not CEA. These include
the following documents created by defendants or their counsel between 2011-2014 which name
Chameleon Entertainment, Inc. as the contracting party, not CEA:
1.

Agreement dated May 25, 2011 between Norwood and Chameleon Entertainment,
Inc., both at heading and on signature page. Meloni Affirm., Ex. C.

2.

Agreement between Chameleon Entertainment, Inc. and RCA/Jive, a label group of

Sony Music Entertainment, for the services of Brandy Norwood. Meloni Affirm., Ex.
N.

3.

Letter from CEIs counsel Erin Love to Norwoods counsel dated August 23, 2013
where Ms. Love refers to Chameleon Entertainment, Inc. in three places. Meloni
Affirm., Ex. M.

4.

Letter from Erin Love to Norwoods counsel dated April 3, 2014 where Ms. Love
refers to Chameleon Entertainment, Inc. in three places. Meloni Affirm., Ex. M.

5.

Letter from CEIs counsel Erin Love to Norwoods counsel dated October 9, 2014
where Ms. Love refers to Chameleon Entertainment, Inc. in three places. Meloni
Affirm., Ex. M.

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6.

Letter from CEIs counsel Erin Love to Norwoods counsel dated December 3, 2014
where Ms. Love refers to Chameleon Entertainment, Inc. in three places. Meloni
Affirm., Ex. M.

7.

Draft record agreement between Epic Records [and] Chameleon Entertainment, Inc.
f/s/o Brandy Norwood p/k/a Brandy dated October 30, 2014, which refers to
Chameleon Entertainment, Inc. in four places. Meloni Affirm., Ex. M.

There is virtually no document in existence of which Norwood is aware that names

Chameleon Entertainment Associates, Inc. as having any legal or business relationship with
Norwood.
Despite its legal demise on July 9, 2005, CEI-GA continued to do business, including
entering into at least three significant agreements in 2011, one of which was the Agreement dated
May 25, 2011 at issue in this action. Meloni Affirm., Ex. C. The second was the furnishing
agreement date May 26, 2011 between Chameleon Entertainment, Inc., for the services of Brandy
Norwood, and RCA/Jive, a label group of Sony Music Entertainment. Meloni Affirm., Ex. N. The
third was an exclusive recording distribution agreement dated August 26, 2011 between
Chameleon Entertainment, Inc. and Island Def Jam Music Group, under which Chameleon
Entertainment, Inc. granted Def Jam exclusive rights to distribute sound recordings of the artist
known as Nikki Williams. See Meloni Affirm., 8-9, Ex. K (Complaint filed in the United States
District Court for the Southern District of New York on September 9, 2016 in the action entitled
Nikki Williams v. Chameleon Entertainment, Inc., et al [Case No. 16-cv-07037-LLS]), Dkt. No. 1.
In the Williams case, counsel for CEA (who also happens to be counsel for CEA in this
action) similarly claimed that the party named in the Nikki Williams agreement, as well as the
Williams complaint, was incorrectly styled as Chameleon Entertainment, Inc.

Williams v.

Chameleon, Dkt. No. 13 [Notice of Appearance of Sarah Matz, stating that Chameleon
Entertainment Associates, Inc., (incorrectly sued herein as Chameleon Entertainment, Inc.)].

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Meloni Affirm., Ex. L. However, there is virtually no support in the record of the Williams case
files, as in this one, that such a statement has any basis in reality. To the contrary, based on a review
of that Williams recording agreement and the Complaint in that action, and conversations between
Norwoods counsel and counsel for Ms. Williams, it was clearly evident that Ms. Williams contract
was with Chameleon Entertainment, Inc., and not a completely different entity called Chameleon
Entertainment Associates, Inc., since the contract for Ms. Williams recording services clearly
names Chameleon Entertainment, Inc. as the contracting party, just as in the case of Norwood. Id.
CEAs position that the Norwood Agreement, the RCA/Jive contract and the Nikki
Williams contract all contained typographical errors misnaming the contracting party in multiple
places, not once, but with two different artists and three different contracts, strains credulity.
D. No Prejudice as a Result of the Proposed Amendments.
This action is in the early stages. No discovery has taken place apart from the service of
discovery demands by Norwood and CEA. Furthermore, Norwoods initial set of discovery
demands requested documents and information concerning the ownership, identity and business
activities relating to Norwood of Chameleon Entertainment, Inc., the Prescott-owned company.
CEA has refused to produce any documents at all, including those relating to the actual contracting
party, contending that the corporate entity named in all of the aforementioned documents is the
wrong party, and that CEA is the contracting party despite the fact that virtually everything points
to the opposite conclusion. See Meloni Affirm. 5.
Accordingly, since there is no prejudice to CEA, Norwood respectfully submits that her
application to amend the Complaint should be granted.

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CONCLUSION
For the foregoing reasons, Norwood respectfully requests that the Court dismiss CEAs
Verified Counterclaims in their entirety and grant Plaintiff leave to amend her Reply to
Counterclaims and the complaint, together with such other and further relief as it deems just and
proper.
Dated: January 13, 2017
Respectfully submitted,
MELONI & MCCAFFREY
A Professional Corporation

By: ____________________________
Robert S. Meloni
Thomas P. McCaffrey
Justin Ratliff
3 Columbus Circle, 15th Floor
New York, New York 10019
Tel: (212) 520-6090
Attorneys for Plaintiff Brandy Norwood

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