
    Tom Robinson et al., Appellants, v Viacom International, Inc., et al., Respondents.
    [663 NYS2d 817]
   Order, Supreme Court, New York County (Stephen Crane, J.), entered on or about May 24, 1996, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The IAS Court properly dismissed plaintiffs’ copyright claim as having been finally determined in the prior Federal court action (Robinson v Viacom Intl., 1995 US Dist LEXIS 9781 [SD NY, July 13, 1995, Patterson, J., 93 Civ 2539 (RPP)]), and plaintiffs’ fraud claim as inadequately pleaded (CPLR 3016 [b]). The implied-in-fact and implied-in-law contract claims should be dismissed because of plaintiffs’ failure to rebut defendants’ prima facie showing that the allegedly misappropriated idea underlying those claims is not novel (see, Surplus Equip, v Xerox Corp., 120 AD2d 582, lv denied 68 NY2d 606; Oasis Music v 900 U.S.A., 161 Misc 2d 627, 630-631 [explaining Apfel v Prudential-Bache Sec., 81 NY2d 470]). Indeed, plaintiffs do not even address defendants’ proof on the issue of novelty, instead relying entirely on the erroneous argument that the Federal court’s ruling dismissing plaintiffs’ State law claims without prejudice to their reassertion in State court estops defendants from asserting lack of novelty. Concur— Sullivan, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.  