2017 03:37 PM - Courthouse News Service(c) "Merengue y Sentimiento" in 2015. 18. Pursuant to the 2010 Agreements, D.A.M. also produced and distributed for sale the following compilation

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

x D.A.M. PRODUCTIONS, INC. Index No.

Plaintiff,

- against - COMPLAINT

NELSON TORRES and EL TORITO ENTERTAINMENT INC.,

Defendants. x

Plaintiff, D.A.M. Productions, Inc. ("D.A.M."), by its attorneys, Smith, Gambrell

& Russell, LLP, for its complaint against defendants, Nelson Torres ("Torres") and El Torito

Entertainment Inc. ("Torito Entertainment"), alleges as follows:

NATURE OF THE PROCEEDING

1. D.A.M. brings this action to recover the monetary damages it has incurred from

Torres' and Torito Entertainment's (a) intentional interference with D.A.M.'s contractual relations

with the well-known Dominican artist Hector Acosta p/k/a/ "El Torito" ("Acosta") and (b)

tortious interference with D.A.M.'s prospective contractual violations with third-parties who but

for Torres' and Torito Entertainment's wrongful actions would have engaged Acosta's artistic

services through agreements with D.A.M. D.A.M. also seeks injunctive relief restraining Torres

and Torito Entertainment from continuing to interfere with D.A.M.'s existing and prospective

contractual relations.

THE PARTIES

2. D.A.M. is a music production and music publishing company, and a manager and

booking agent, incorporated under the laws of Florida, with its principal place of business

located in Miami, Florida.

1

FILED: NEW YORK COUNTY CLERK 02/21/2017 03:37 PM INDEX NO. 151678/2017

NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/21/2017

1 of 11

3. Torres is a resident of New York City who provides management services to

artists in New York State.

4. Torito Entertainment is a domestic business corporation which, upon information

and belief, Torres caused to be incorporated under the laws of New York with a principal place

of business in New York City.

JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to CPLR §301, as both

defendants reside and transact business in New York State.

6. Venue is proper in this Court under CPLR § 509, as both defendants reside and

transact business in New York City.

FACTUAL BACKGROUND

D.A.M.'s Contracts with Hector Acosta

7. On or about March 7, 2006, D.A.M. entered into written agreements with Acosta

pursuant to which Acosta (a) agreed to become an exclusive recording artist for D.A.M. and (b)

engaged D.A.M. to serve as his exclusive manager and booking agent throughout the world,

other than in the Dominican Republic (the "2006 Agreements").

8. Pursuant to the 2006 Agreements, D.A.M. planned, organized and arranged tours

and performances for Acosta between 2006 and 2009 in several states in the United States,

including New York. D.A.M. also planned, organized and arranged tours and performances for

Acosta in Latin America and Europe.

10. Also pursuant to the 2006 Agreements, D.A.M. produced and distributed for sale

three albums recorded by Acosta, which required D.A.M. to plan, organize and effectuate

2



2 of 11

marketing plans, promotional campaigns on radio and television and special events for each such

album.

11. Between February and July, 2010, D.A.M. and Acosta entered into the following

written agreements:

(a) An Exclusive Recording Agreement, executed by D.A.M. and Acosta on

February 1, 2010 (the "2010 Recording Agreement");

(b) An Exclusive Artist Representation Agreement, executed by D.A.M and

Acosta on February 1, 2010 (the "2010 Management Agreement"); and

(c) Annex "A" to the 2010 Recording Agreement and to the 2010

Management Agreement, executed by D.A.M. and Acosta on July 15, 2010 ("Annex A") (the

2010 Recording Agreement, the 2010 Management Agreement and Annex A will be referred to

hereafter together as the "2010 Agreements").

12. D.A.M. expressly incorporates the 2010 Agreements into this Complaint by

reference.

13. Pursuant to the 2010 Agreements, Acosta engaged D.A.M. to serve as his

exclusive agent and representative through the world, except for in the Dominican Republic.

14. Pursuant to the 2010 Agreements, D.A.M. — and only D.A.M. — was authorized

by Acosta to make all arrangements for tours and other performances to take place in the United

States, Latin America (other than the Dominican Republic) and Europe.

15. Pursuant to the 2010 Agreements, Acosta agreed to record exclusively for D.A.M.

three different record albums.

3



3 of 11

D.A.M.'s Performance Under The 2010 Agreements

16. Pursuant to the 2010 Agreements, D.A.M. planned, organized and arranged tours

and other performances for Acosta each year between 2010 to 2016 in several states in the

United States, including New York. D.A.M. also planned, organized and arranged tours and

other performances for Acosta in Latin America (other than in the Dominican Republic) and

Europe.

17. Pursuant to the 2010 Agreements, D.A.M. produced and distributed for sale the

following albums recorded by Acosta for D.A.M.:

(a) "Obligame" in 2010;

(b) "Con El Corazon Abierto" in 2012; and

(c) "Merengue y Sentimiento" in 2015.

18. Pursuant to the 2010 Agreements, D.A.M. also produced and distributed for sale

the following compilation albums of recordings previously made by Acosta for D.A.M.:

(a) "Ultimate Bachata Collection" in 2010;

(b) "Una Noche Con El Torito" in 2010;

(c) "En Vivo" in 2008;

(d) "Ultimate Merengue Collection" in 2011; and

(e) "La Historia.... Mis Exitos" in 2014.

19. Pursuant to the 2010 Agreements, D.A.M. also licensed to third parties to include

in compilation albums several of the musical tracks Acosta recorded for D.A.M.

20. Pursuant to the 2010 Agreements, D.A.M. produced and distributed videos

performed by Acosta entitled "Tu Veneno" and "Tu Primera Vez".

4



4 of 11

21. Pursuant to the 2010 Agreements, D.A.M. planned, organized and effectuated

marketing plans, local and national promotional campaigns on television and radio, and special

events on local and national radio and television programs to promote Acosta's artistic career.

Torres' And Torito's Entertainment's Interference with the 2010 Agreements

22. In September and October 2016, Torres — without D.A.M.'s authorization —

engaged Roc Nation and TIDAL to produce a video performed by Acosta entitled "Amorcito

Enfermito". D.A.M. controls all rights with respect to the master recording of "Amorcito

Enfermito".

23. In October 2016, Torres and Acosta — without D.A.M.'s authorization ~ entered

into a plan to promote Acosta's artistic career on television and radio stations located in the

United States.

24. In November 2016, Torres and Acosta engaged in several interviews with various

media in attendance at the Latin Grammy Awards in Las Vegas, Nevada. During these

interviews Torres asserted that Torres was Acosta's representative and manager.

25. On several occasions, Torres engaged in promotional activities in Mexico at

which Torres asserted that Torres was Acosta's representative and manager.

26. On December 9, 2016, D.A.M. caused its attorney to send Torres written notice

advising Torres that

(a) pursuant to the 2010 Agreements, Acosta is an exclusive recording artist

for D.A.M. and D.AM, serves as Acosta's exclusive manager and booking agent;

(b) the 2010 Agreements remain in full force and effect;

5



5 of 11

(c) D.A.M. would construe any actions taken by Torres or others to enter into

agreements with or on behalf of Acosta outside of the Dominican Republic as tortious

interference with the 2010 Agreements; and

(d) D.AM, would take the actions necessary to enforce its rights under the

2010 Agreements.

27. In January 2017, D.A.M. discovered that Torito Entertainment was incorporated

on or about November 30, 2016 in the State of New York. The address information that appears

on the New York Department of State website for Torito Entertainment is care of Torres at his

residential address.

28. On February 2, 2017, D.AM, caused its attorney to send written notice to Torres'

attorney again advising that the 2010 Agreements remain in full force and effect and that any

actions taken by Torres to enter into any agreement on behalf of Acosta would constitute

intentional interference with the 2010 Agreements.

29. On or about February 3, 2017, D.A.M. learned that Acosta had posted on his

Twitter and Instagram social networks sites statements purporting to designate Torres as Acosta's

sole representative and agent in the United States and Europe.

30. On February 7, 2017, D.A.M. served on Acosta a Notice to Cure Acosta's

violations of his obligations under the 2010 Agreements. D.A.M. included among such

violations actions taken by Acosta in conjunction with Torres whereby Torres purported to act as

Acosta's representative in the United States.

31. On February 8, 2017, D.A.M. caused its attorney to send Torres' attorney a copy

of the Notice of Cure and again advised in writing that D.A.M. intended to recover from Torres

6



6 of 11

the damages D.A.M. incurs as a result of Torres' intentional interference with the 2010

Agreements.

32. On February 13, 2017, Acosta released a public statement via a public relations

and marketing company whereby Acosta asserted that Torito Entertainment and Torres would

serve as the sole managers of his artistic career.

D.A.M.'s Damages Resulting From Torres' And Torito Entertainment's Interference

33. To properly plan, organize and arrange for the tours, performances and events

described in paragraphs 16 to 21, above, D.A.M. must begin such planning months before the

events are scheduled to take place.

34. Due to Torres' and Torito Entertainment's wrongful interference with the 2010

Agreements, D.A.M. has not been able to schedule for 2017 any of the tours, performances or

special events described in paragraphs 16 to 21, above.


Agreements, D.A.M. has not been able to produce or distribute for sale additional new albums

Acosta is required to record for D.A.M. pursuant to the 2010 Agreements.


Agreements, D.A.M. has not been able to plan, organize or effectuate any of the marketing plans,

promotional campaigns or special events that must precede and be coordinated with the release

of any new album (including compilation albums). Therefore, D.A.M. has not been able to

produce or distribute for sale any new compilation albums containing musical tracks previously

recorded by Acosta for D.A.M.


Agreements, D.A.M. has not been able to plan, organize or effectuate the marketing plans,

7



7 of 11

promotional campaigns (including radio campaigns) and special events that generate Sound

Exchange royalties and other income for D.A.M. from digital music sales and digital streaming

of the musical tracks and currently released albums recorded by Acosta for D.A.M.

38. Torres' and Torito Entertainment's wrongful interference with the 2010

Agreements has impeded D.A.M.'s ability to market for sale in 2017 any merchandise containing

Acosta's image or brand.

39. As an example of the substantial damages D.A.M. has incurred from Torres' and

Torito Entertainment's wrongful interference with the 2010 Agreements, D.A.M. will derive no

income from tours and performances by Acosta in the first quarter of 2017. Prior to Torres' and

Torito Entertainment's wrongful interference with the 2010 Agreements, D.A.M. derived the

following net revenues from tours and performances D.A.M. arranged for Acosta in the first

quarter of the three preceding years:

(a) D.A.M. derived approximately $56,000 in net revenues from Acosta's

tours and performances in the first quarter of 2016;

(b) D.A.M. derived approximately $52,000 in net revenues from Acosta's

tours and performances in the first quarter of 2015; and

(c) D.A.M. derived approximately $83,000 in nets revenues from Acosta's

tours and performances in the first quarter of 2014.

FIRST CAUSE OF ACTION (Tortious Interference With Contract)

40. D.A.M. repeats and realleges each and every allegation contained in paragraphs 1

through 39, above, with the same force and effect as if set forth hereat at length.

41. The actions taken by Torres and Torito Entertainment described in paragraphs 22

to 32, above have impeded D.A.M.'s ability to arrange for (a) tours and other performances for

8



8 of 11

Acosta in the United States and Europe; (b) the production and distribution of additional new

albums Acosta is required to record for D.A.M. pursuant to the 2010 Agreements; (c)

distribution for sale of compilation albums containing musical tracks Acosta recorded for

D.A.M.; (d) the marketing and promotion of digital sales of the musical tracks Acosta recorded

for D.A.M.; and (e) marketing for sale merchandise containing Acosta's image or brand.

42. Torres' and Torito Entertainment's actions described in paragraphs 22 to 32, above

were intended to and did interfere with the 2010 Agreements.

43. By reason of the foregoing, D.A.M. has suffered actual direct, consequential and

other damages in an amount to the determined at trial.

SECOND CAUSE OF ACTION (Tortious Interference With Prospective Contractual and/or Business Relations)



45. D.A.M. has prospective contractual and/or business relationships with numerous

venues located in New York State and other parts of the United States at which D.A.M. had

previously arranged for performances by Acosta.

46. Torres and Torito Entertainment had knowledge of the previous engagements

D.A.M. had arranged for Acosta at these venues.

47. Torres and Torito Entertainment intentionally interfered with the above-

referenced relationships by falsely purporting to act as Acosta's representatives and by asserting

that D.A.M. was not Acosta's representative.

48. As a result of Torres' and Torito Entertainment's interference, D.A.M. was not

able to make arrangements with the above-referenced venues to engage Acosta to perform at said

9



9 of 11

venues. D.A.M. otherwise would have been able to make such arrangements, but for Torres' and

Torito Entertainment's interference.

49. Torres and Torito Entertainment interfered with D.A.M.'s above-referenced

prospective and/or business relations with the sole purposed of harming D.A.M. or by wrongful

means.

50. By reason of the foregoing, D.A.M. has suffered actual, direct, consequential and

other damages in an amount to be determined at trial.

THIRD CAUSE OF ACTION (Injunctive Relief)



52. Upon information and belief and based on the allegations set forth of paragraphs

22 through 32, above, Torres and Torito Entertainment will continue to interfere with D.A.M.'s

contractual relations with Acosta and D.A.M.'s prospective contractual relations with venues in

New York State and in other parts of the United States and the world.

53. D.A.M. has suffered and will continue to suffer irreparable harm in the form of

lost engagements in an indefinite number if Torres and Torito Entertainment are not restrained

from continuing to interfere with D.A.M.'s existing and prospective contractual relations.

53. By reason of the foregoing, D.A.M. is entitled to an injunction restraining Torres

and Torito Entertainment from interfering with D.A.M.'s 2010 Agreements with Acosta and

D.A.M.'s prospective contractual relations with venues in New York State, the United States and

the rest of the world, except in the Dominican Republic.

10



10 of 11

WHEREFORE, D.A.M. is entitled to judgment against Torres and Torito Entertainment

(i) on the First Cause of Action for actual, direct, consequential and other

damages in an amount to be determined at trial;

(ii) on the Second Cause of Action for actual, direct, consequential and other

damages in an amount to be determined at trial;

(iii) on the Third Cause of Action, an Order enjoining Torres and Torito

Entertainment from interfering with (a) D.A.M.'s 2010 Agreements with

Acosta and (b) D.A.M.'s prospective contractual and/or business relations

with venues in New York State, the rest of the United States and the rest

of the world, except in the Dominican Republic; and

(iv) awarding D.A.M. such other and further relief as the Court deems just and

proper.

Dated: New York, New York February 21, 2017

SMITH, GAMBRELL & RUSSELL, LLP

Roger Juan Maldonado Nicole 7 la I f

1301 Avenue of the Americas, 21st Floor New York, New York 10019 (212) 907-9700 [email protected] nhaff@s grlaw. com

Attorneys for Plaintiff D.A.M. Productions, Inc.

11



11 of 11

Documents

2017 03:37 PM - Courthouse News Service(c) "Merengue y Sentimiento" in 2015. 18. Pursuant to the 2010 Agreements, D.A.M. also produced and distributed for sale the following compilation