The opinion of the court was delivered by: RICHARD OWEN
Plaintiffs and defendants each move for summary judgment against plaintiff-intervenor Jeffrey Sado.
Summary judgment is appropriate when there is no genuine issue of material fact, and the moving patty is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The nonmoving patty "cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations omitted). Rule 56(e) mandates:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed. R. Civ. P. 56(e) (emphasis supplied). Sado has failed to oppose the motions, despite being given ample opportunity, and indeed being prodded, to do so. According to the summary judgment briefing schedule, Sado had two weeks to respond to the motions. When Sado failed to do so, I sua sponte granted him a further week's extension. Sado once again failed to respond, inexplicably choosing instead to use that time to prepare a twenty-six page, thirty-four exhibit motion for reargument of an earlier denied perjury motion, the validity of which had already been greatly questioned by me on the record at a conference.
This is also to be viewed against earlier hearings, especially one involving the claim that Mr. Sado had threatened a lawyer in the case which, after hearing from the participants, I found he had, because Mr. Sado, under oath, basically acknowledged the threats in his phone call to the lawyer. Based not only on Mr. Sado's failure to oppose the motion, but also upon an assessment of the entire record, I conclude that summary judgment must be granted in favor of the moving parties.
This action arises out of a dispute over a corporate marketing proposal titled "Countdown 2000." The proposal was developed to garner corporate sponsorship of the Times Square New Year's Eve ball-drop ceremonies leading up to the year 2000. Defendant One Times Square Associates Limited Partnership ("OTSALP") was, during the time relevant to this litigation, the owner of One Times Square, the site of the ball-drop ceremony.
Defendant One Times Square Management Corp. managed the building, and defendant Old Country Management Corp. was the building's broker. Defendant Steven Israel was an OTSALP partner.
Israel met Sado in April of 1988, and the two orally agreed that Sado would work at One Times Square to lease office space within the building and to market the building as a location for television commercials and films. Later, Sado's role changed to include selling signage on the building's exterior. Israel provided Sado with a desk, secretary, telephone and information about One Times Square. Sado was to function as an independent contractor, receiving $ 500 per week as a draw against any commissions earned.
When OTSALP purchased One Times Square in 1985, the building was subject to a preexisting lease held by Van Wagner Advertising Corporation. Under the terms of that lease, Van Wagner had the right to sell signage on certain portions of the building's exterior. When Israel attempted to negotiate a signage deal with Pepsi-Cola, a dispute arose between Israel and Van Wagner over who had the rights to sell signage for the seventeenth floor terrace (alternatively referred to as the seventeenth floor setback). Israel claimed that the terrace was reserved for the building's owner, while Van Wagner maintained it was covered by its lease. In January of 1989, Van Wagner brought suit in New York State Supreme Court, claiming that OTSALP was violating the lease by soliciting Pepsi advertising. Van Wagner was granted a temporary restraining order enjoining OTSALP from displaying Pepsi ads. The order was subsequently lifted and Van Wagner was denied a preliminary injunction, because the judge found the lease to be ambiguous as to who had the signage rights to the terrace. See infra p. 9. Van Wagner and OTSALP settled their differences by entering into an amended lease agreement which gave OTSALP a greater percentage of commissions for signs on the seventeenth floor terrace. Ultimately, Van Wagner entered into a signage contract with Pepsi pursuant to the amended lease agreement.
Plaintiffs Robin Ellis and Robert Morrison, producers of live media events, entered the picture in March of 1989. At that time, Sado introduced them to Israel to discuss the production of a special event centering on the Times Square New Year's Eve ball-drops leading up to the year 2000. Israel provided Sado, Ellis and Morrison with information about One Times Square such as diagrams and demographic studies, and Ellis and Morrison wrote a corporate marketing proposal. Although the proposal, known as Countdown 2000, was used by all the parties in an effort to obtain corporate sponsorship, no income was ever generated by it. Ellis and Morrison copyrighted the proposal in their names, leading to a dispute with Israel and OTSALP that resulted in the current litigation.
In March 1990, plaintiffs brought suit against defendants alleging copyright infringement, unfair competition, breach of contract and unjust enrichment. In May 1991, Sado sought and was granted leave to intervene, claiming that he initiated Countdown 2000 and was entitled to commissions allegedly generated by the proposal. He originally asserted five causes of action, but he later amended his complaint to withdraw two of the claims. Three causes of action remain. First, Sado alleges that plaintiffs fraudulently registered his original intellectual property and failed to give him credit for it. Second, he alleges that defendants fraudulently induced him to enter into a co-brokerage agreement to sell signage when they knew that Van Wagner had a restrictive covenant on new signage. Finally, Sado alleges that plaintiffs and defendants conspired to deprive him of rights deriving from the Countdown 2000 proposal. Plaintiffs and defendants eventually settled their case in 1993. Although Sado was invited to take part in the settlement negotiations, he declined to do so. Plaintiffs and defendants now move for summary judgment, and, for the reasons set forth below, the motions are granted.
Plaintiffs move for summary judgment on count one of Sado's amended complaint. Count one alleges that Sado conceived of Countdown 2000 and that plaintiffs "wrongfully, maliciously, intentionally and fraudulently, without Sado's authorization and in wanton disregard of Sado's rights, registered Sado's original intellectual property in copyright application PAN 130-6-62 listing only the plaintiffs as authors and owners and failed to give Sado the credit to which he is entitled as author/owner." Sado claims he is entitled to damages reflecting his equity interest, as well as a declaratory judgment declaring him a 33 1/3% owner of the Countdown 2000 proposal and directing plaintiffs to file an amended registration form crediting him as the author/owner of the proposal. It is unclear what legal claim Sado is putting forth with these allegations. Plaintiffs construe count one as a claim of conversion and for declaratory judgment of co-authorship. Regardless of what formal construction is placed on Sado's allegations, count one must fail because Sado has failed to adduce any evidence of the facts he asserts.
Sado alleges that he was the "author/owner" of the Countdown 2000 proposal. However, his own words contradict these assertions. The following are excerpts from Sado's October 1994 deposition.
Q: I'm going to make this easy. What I want you to do, Jeffrey [Sado], is I want you to go through the corporate sponsorship proposal and show me the pages that you wrote, okay? Show me what you wrote and you can also include the photographs that you own, okay? I do not want you to mention the pages that belong to other people that you provided. I just want to know exactly what you own.
A: My intellectual property would encompass . . . input.
Q: I'm looking at his proposal. I want to see in his proposal what you wrote. I don't want to talk about ...