sent to Brian Koppelman at EMI Records again in August 1995.
In the same time frame, Giovanni, through his dentist, got the
name of Jason Flom at a Warner Brothers Company, Atlantic
Records. Giovanni testified that he sent the Demo Tape to Flom,
who rejected the tape. There is no record relating to these
Giovanni also testified that he requested John Ferry, an agent
who had signed performers with Interscope, to have Interscope
review the Demo Tape. Giovanni further testified that he had been
told by someone that an unidentified member of "Nine Inch Nails"
had heard the Demo Tape. Without corroboration, however, this
vague double hearsay is not credible in view of Giovanni's
interest and his failure to refer to these events in an earlier
sworn statement on the subject.
In 1994 and 1995, Arthur Joseph Productions also submitted the
Demo Tape to Mercury Records, Arista Records, Inc., Columbia
Records, MCA Records, Interscope Records, Island Records, Geffen
Records, Sony Music, Epic Records and Virgin Records, through
particular individuals in most instances. These submissions did
not result in any further inquiries with respect to the Demo
Ken Lane and Brian Koppelman of EMI were invited to a
performance by Blue Dahlia on October 29, 1995 at which SYS was
played. Lane attended, but there is no evidence that Koppelman
There has been no effort to promote or sell the Demo Tape since
In early November 1999, Tisi heard TAP for the first time and
bought the a copy of the compact disc, "Title of Record," on
which the song appears, although in an affidavit submitted in
connection with the order to show cause, Tisi stated that he had
not learned of the Patrick song until told about it by others in
"late December 1999." The Tisis first consulted an attorney
concerning the enforcement of Tisi's copyright on October 25,
Patrick, a Chicago resident, has performed and composed music
since 1984 and has achieved wide recognition. In 1989, Patrick,
then twenty-one years of age, toured as a guitar player with the
band "Nine Inch Nails" and wrote music when not touring. In 1993,
Patrick formed his own band, Filter, and in 1994 signed a
recording agreement with Warner Brothers Records. "Short Bus,"
Filter's first album with songs written by Patrick, was released
in April 1995 by Reprise Records, Inc., a division of Warner
Brothers. A two-year tour followed. The "Short Bus" album
achieved platinum sales status. Although most of the compositions
on "Short Bus" are hard rock, two are more acoustic and softer,
as was a 1997 Patrick composition for television.
In late 1996, Patrick, while playing his electric guitar, hit
upon several chords which he liked, and he then composed a
chorus, all of which he put aside during the construction of his
sound studio in Chicago, the Abyssinian Sons Studio. In November
1997, Patrick recorded this guitar segment with a percussion
group and added a melody which was heard by a Reprise executive.
He composed the lyrics in 1998, which were related to an incident
when Patrick was asleep on an airplane.
In 1999, Patrick completed work on Filter's next album, "Title
of Record" and included as one of the songs this material which
he had worked on in 1996 and 1997 and entitled it "Take A
Picture." In the final version of the song, world-beat drums and
a twelve-string guitar and additional guitar tracks were added.
TAP was an independent creation by Patrick and those working with
him, none of whom had heard SYS.
TAP was commercially released on August 24, 1999, and was
promoted as a single to radio stations beginning on September 21,
1999. It started on the Billboard "Hot 100" chart at number 91
and by February 12, 2000 had risen to number 12. In early March
it was number 20,
when it was simultaneously number 1 on the Billboard "Dance" chart.
Filter has been on tour since the release of the album "Title
of Record," and TAP has become a signature song for Filter and
Patrick. Warner Brothers Records has invested over $4.5 million
in the composition, licensing, and promotion of the album.
Patrick does not accept or listen to unsolicited tapes and has
no relationship with EMI Records. EMI April Music Inc. and EMI
Music Inc. administer copyrights, including Patrick's, but have
no role in the creative process and have not sent tapes to
Patrick or to anyone else. Until this litigation was initiated,
Patrick had no knowledge of SYS or of Michael Tisi.
For the uninitiated, much of rock music sounds the same, and a
hasty comparison of SYS and TAP could result in a finding of
superficial similarity, as both songs employ a standard usage in
rock music: an introduction, verse, chorus, and bridge, with
harmonic and rhythmic similarities common to many musical genres,
including pop rock. A closer review of the two compositions
reveals, however, that they are significantly different. Even to
one unversed in the genre, the two songs can be heard to be quite
The expert presented by the defendants, Dr. Lawrence Ferrara,
is the Chair of the Department of Music and Performing Arts at
New York University, and a recognized musicologist. Michael
White, the expert proffered by Tisi, is a member of the graduate
faculty at the Julliard School and a composer of operas,
concertos and songs. As to the method of analysis, both were in
agreement that the elements to be considered on the question of
similarity between SYS and TAP were structure, melody, harmony,
and rhythm. Both agree that the melodies of the two songs are
dissimilar.*fn1 As to the other three elements, while there was
disagreement as to the ultimate conclusions, both experts noted
the same differences and similarities. Dr. Ferrara's conclusions
were sounder and more credible, and his analysis more convincing
once the examination moved beyond the initial audible overall
dissimilarity of the two songs.
As to structure, to the extent that the two songs share any
structural similarities, those similarities are not significant
because they are uniformly shared with most modern popular rock
music. Both songs employ a standard usage of introduction, verse,
chorus and bridge sections. There are significant structural
differences, however. TAP features a lengthy distorted rock
guitar intro not found in SYS. In addition, the construction of
the verse in both songs is significantly different as can be
determined from the verses set forth in Appendix A. Moreover,
there is a section that can be termed a "Closing" in TAP that is
not found in SYS. Finally, the length of each song differs
The harmony is the element where the songs are closest, given
the use of certain chords with common characteristics. However,
there are notable differences in the harmonies. The harmonies
throughout TAP are more complex and dissonant than in SYS, which
make the songs sound different. Throughout the introduction and
verse sections in TAP a B note (repeatedly played by the guitar)
is present in almost every chord, which connects and defines the
harmonic progression. No comparable or defining harmonic device
is used in SYS.
Both songs are in the key of A major, as are countless songs in
all genres of music. In addition, although both songs feature in
their respective introductions and verses a basic "I-IV" harmonic
progression, which is built on the first and fourth steps of the
scale (in SYS and TAP, from the A chord to the D chord), this
harmonic progression can be found in songs in all genres and
therefore its use in both SYS and TAP does not constitute a
In addition, there are significant differences within the
"I-IV" harmonic progressions found in TAP and SYS, although Tisi's
expert urged that the four chords upon which both songs are based
are the same: A (A7 and A9); D sus 4; D major. In fact, the four
chord progression he describes (A(A7 and A9); Dsus4; D) occurs
only in the introduction and verse in SYS and does not occur
anywhere in TAP. The harmonic progressions found in TAP's
respective introduction and verse are charted as follows:
5-8: A A Asus4 A Dsus4 D Dsus4 D
9-12: Asus2 Aadd2 Asus2 Asus4(add2) A(add2) Dsus4(add6) D6 Dsus4(add6) D6
13-16: Asus2 Aadd2 Asus2 Asus4(add2) A(add2) Dsus4(add6) D6 Dsus4(add6) D6
Although the "bottom notes" in the harmonies charted above are
the same (A and D), the use in each song of the name or "root" of
the chord as the "bottom note" for such chords is extremely
common. By contrast, the contour of the upper voicing or "top
notes" for the chords in their respective introductions is
SYS measures 1-8: B C# G F# G F# B C# F#
TAP measures 9-16 B C# B D C# G F# G F# B C# B D C# G F# G F#
Because of the different chords used in TAP, as described
above, TAP's harmony is more complex, nuanced, and dissonant than
the harmony of SYS and produces a different musical sound. These
harmonic differences demonstrate that the harmony of the two
songs is not shared. The sole similarity — the I chord (A
chord) to IV chord (D chord) progression — is so common to
rock and pop genres (indeed, to every type of Western music) that
it alone does not make the songs sound any more similar than
countless other songs.
A lay listener may hear a basic similarity between the guitar
rhythm of both songs because in both songs it is primarily based
on four basic accents per measure. However, this rhythmic
similarity is not significant because this guitar rhythm is
extremely common in the pop rock genre, and is also featured in
Eastern European folk music and is not original to either SYS or
TAP. Moreover, in SYS, sixteenth notes are played evenly on a
high hat cymbal and quarter notes are played on a bass drum. In
addition, a tambourine and drum play on the second and fourth
beats. This basic percussion rhythm is extremely common in the
pop rock genre.
The percussion parts in TAP are much more complex. TAP employs
"world music" rhythms and sounds with the use of uneven sixteenth
notes and other patterns played by a percussion instrument known
as a shaker, as well as contrasting rhythms played by a conga. In
addition, as the song progresses, TAP layers multiple percussion
tracks, which create complex and highly syncopated rhythms. These
rhythms are associated with "tribal music" (a term used by
ethnomusicologists). No similar rhythmic complexity can be found
Furthermore, despite the superficial similarity of the guitar
rhythms of the songs, significant differences exist. Multiple
guitar tracks are layered in TAP which create a more complex
guitar rhythm than in SYS. Further, the guitar rhythm in the
first eight measures of SYS differs in several significant ways
from the guitar rhythm in the correlative measures of TAP. The
most prominent rhythmic difference is each song's approach to the
fourth beat in each measure. In SYS, three sixteenth notes
approach the fourth beat. By contrast, in TAP one sixteenth note
followed by one eighth note approaches the fourth beat.
As mentioned, the melody in TAP does not share any notable
similarities with the melody in SYS.
What similarities do exist between TAP and SYS can also be
found in prior art contained in works by other groups and
composers such as The Pretenders, U2, Eurythmics, Peter Gabriel,
Neil Diamond, and Bon Jovi, as demonstrated by Dr. Ferrara.
Although Tisi objected to the transposition of certain of the
prior art songs to the key of A major to facilitate comparisons,
transcription is an accepted practice for musicological analysis.
The harmonic progressions and basic rhythms of this prior art are
common to many rock compositions.
However, TAP contains what Dr. Ferrara termed "fingerprints,"
unique treatments used by Filter and Patrick. TAP uses rhythmic
patterns, musical instruments (such as the shaker and conga) and
melodic formulae which provide a flavor of "tribal music" as do
several songs on the "Title of Record" album: "Sand" (track 1),
"It's Gonna Kill Me" (track 4, especially at 1'23" and 2'04"),
"The Best Things" (track 5) and "Miss Blue" (track 11), each
fusing "world music" with pop rock music. Another distinguishing
characteristic in TAP and other Filter songs is the enormous
increase in its dynamics and rhythmic complexity as the song
develops and flows to its ending. Furthermore, close to the end
of TAP (with the lyrics, "Hey, dad, what do you think about your
son now?"), the vocal range is very high, singing/screaming high
B's, a range found in other Filter songs.
In addition, like TAP, "So Cool," another Filter song, has a
closing section constituted of electronic synthesis, which is
absent in SYS. In view of the similarities that TAP shares with
the other songs recorded by Filter, TAP is consistent with
Filter's other musical works.
The most memorable characteristics in TAP (which include
complex rhythms, multi-layered guitar and percussion tracks,
harmonic dissonance, vocal melody, a dynamic build-up to the end,
and a "world music" flavor) are absent in SYS. To the extent that
there are any similarities between the two songs, those
similarities are insignificant and incidental and can be
attributed to common musical practices in rock and pop music. The
analysis of the two songs reinforces the finding. TAP was created
without any reference to SYS.
As between Tisi and Patrick, the facts already set forth
demonstrate that the balance of hardship, were injunctive relief
granted, tilts strongly against Tisi's unknown and unpublished
composition and in favor of Patrick's highly successfully and
expensively promoted composition. This tilt is accentuated by
Tisi's failure to act during much of the period of TAP'S
CONCLUSIONS OF LAW
I. The Applicable Legal Standards
A. Preliminary Injunction
A preliminary injunction is "an extraordinary and drastic
remedy" which should not be granted "absent a clear showing that
the movant has met its burden of proof." Karmikel Corp. v. May
Dep't Stores Co., 658 F. Supp. 1361, 1367 (S.D.N.Y. 1987); see
also Parenting Unltd. v. Columbia Pictures Television,
743 F. Supp. 221, 224 (S.D.N.Y. 1990).
A preliminary injunction may not be issued unless the moving
[B]oth (1) irreparable harm in the absence of the
requested relief, and (2) either (a) a likelihood that it
will succeed on the merits of the action, or (b) a
sufficiently serious question going to the merits
combined with a balance of hardships tipping decidedly in
favor of the moving party.
Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033,
1038 (2d Cir. 1992) (vacating preliminary injunction); see also
Harm Reduction Coalition v. Bratton, No. 95 Civ. 3171, 1995 WL
271766, at *1 (S.D.N.Y. May 9, 1995) (preliminary injunction
In cases of copyright infringement, irreparable injury is
generally presumed if the plaintiff can demonstrate a likelihood
of success on the merits. See, e.g., Richard Feiner & Co. v.
Turner Entertainment Co., 98 F.3d 33, 34 (2d Cir. 1996).
B. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Second
Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J.,
dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d
Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757
(S.D.N.Y. 1995). If, when viewing the evidence produced in the
light most favorable to the non-movant, there is no genuine issue
of material fact, then the entry of summary judgment is
appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v.
Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of factual
issues — where those issues are not material to the claims
before the court — will not suffice to defeat a motion for
summary judgment." Quarles v. General Motors Corp., 758 F.2d 839,
840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than
"metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (citations
II. Copyright Infringement
There are two elements to a copyright infringement claim: "(1)
ownership of a valid copyright; and (2) copying of constituent
elements of the work that are original." Feist Publications, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); accord Fonar
Corp. v. Domenick, 105 F.3d 99, 103 (2d Cir. 1997).
A certificate of registration from the United States Register
of Copyrights constitutes prima facie evidence of the valid
ownership of a copyright. See 17 U.S.C. § 410(c). Tisi has
secured such registration for SYS and Defendants do not dispute
the validity of Tisi's copyright in SYS. Thus, Tisi meets the
first element of an infringement claim.
"To prove infringement, a plaintiff with a valid copyright must
demonstrate that: `(1) the defendant has actually copied the
plaintiff's work; and (2) the copying is illegal because a
substantial similarity exists between the defendant's work and
the protectable elements of plaintiff's.'" Knitwaves, Inc. v.
Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (quoting
Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119,
122-23 (2d Cir. 1994)).
Since direct evidence of copying is seldom available,
"[c]opying may be inferred where a plaintiff establishes
that the defendant had access to the copyrighted work and
that substantial similarities exist as to protectable
material in the two works." Walker v. Time Life
Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986). In the
alternative, "[i]f the two works are so strikingly
similar as to preclude the possibility of independent
creation, `copying' may be proved without a showing of
access." Ferguson v. NBC, Inc., 584 F.2d 111, 113 (5th
Cir. 1978); Gaste v. Kaiserman, 863 F.2d 1061, 1067-68
(2d Cir. 1988).
Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995).
A. Access Has Not Been Demonstrated
Although Arthur Tisi submitted unsolicited demo tapes
containing SYS to EMI Records and Warner Brothers, there is no
evidence that SYS was ever conveyed from EMI Records or Warner
Brothers Records to Patrick or to anyone with creative input into
Access means that the alleged infringer "had an opportunity to
view or copy plaintiff's work." Sid & Marty Krofft Television
Prod. v. McDonalds Corp., 562 F.2d 1157, 1172 (9th Cir. 1977)
(citing Arrow Novelty Co. v. Enco Nat'l Corp., 393 F. Supp. 157,
160 (S.D.N.Y.), aff'd 515 F.2d 504 (2d Cir. 1975)). The plaintiff
has the burden of presenting "significant, affirmative and
probative" evidence to support a claim of access. See, e.g.,
Palmieri v. Estefan, 35 U.S.P.Q.2d 1382 (S.D.N.Y. 1995), aff'd on
other grounds, 88 F.3d 136 (2d Cir. 1996); Intersong-USA v. CBS,
Inc., 757 F. Supp. 274, 281 (S.D.N.Y. 1991). Conjecture or
speculation is insufficient. See, e.g., Cox v. Abrams, No. 93
Civ. 6899, 1997 WL 251532, at *3 (S.D.N.Y. May 14, 1997) ("To
survive summary judgment Plaintiffs must show a reasonable
possibility of access, not a bare possibility."); Intersong-USA,
757 F. Supp. at 281.
This principle has been confirmed recently in Dimmie v. Carey,
88 F. Supp.2d 142 (S.D.N.Y. 2000). Dimmie rejected a claim nearly
identical to that asserted here, holding that plaintiff's
submission of her song to Columbia Records failed to establish
that there was a "reasonable possibility" that the composers had
access to the song and granting defendants' motion for summary
judgment. See id. at 145-48.
The same result was previously reached by this Court in Novak
v. National Broad. Co., 752 F. Supp. 164 (S.D.N.Y. 1990), in
which the plaintiffs had alleged that the creators of "Saturday
Night Live" had copied a comedy sketch that the plaintiffs had
written. The plaintiffs had submitted a tape containing their
sketch to NBC Entertainment's president, Brandon Tartikoff, and
Saturday Night Live's allegedly infringing skit aired
approximately three weeks later. The tape was subsequently
returned to plaintiffs, along with a note typed on Tartikoff's
letterhead stating, "We found this in our office and thought you
might like it back." Id. at 167. Tartikoff testified that he
never viewed plaintiffs' tape. The Court noted that plaintiffs
had not introduced any evidence contradicting Tartikoff's
testimony. The Court held that plaintiffs had failed to raise a
genuine issue of fact regarding access and granted summary
judgment dismissing plaintiffs' claim.
Cox v. Abrams, 1997 WL 251532, is in accord as are a number
of other cases.*fn2
While Tisi has cited Gaste v. Kaiserman, 863 F.2d 1061 (2d
Cir. 1988), to support the claim of access, Gaste did not address
the "bare corporate receipt" doctrine, and in Gaste the court
found that defendant Kaiserman offered demonstrably false evidence
in an effort to dispute access.
There is no question that Tisi has failed to meet the standard
on a motion for a preliminary injunction for demonstrating
access, to say nothing of his failure to meet the standard for
summary judgment. On the contrary, even construing the facts in
the light most favorable to Tisi, he has failed to establish as a
matter of law that Patrick or anyone else involved with the
creation of TAP had access to SYS.
B. Tisi Has Made No Showing of Striking Similarity
As Tisi has failed to prove access as a matter of law —
even construing the facts in the light most favorable to Tisi
— in order to prevail on his motions either for a
preliminary injunction or for summary judgment, Tisi must now
show that TAP is strikingly similar to SYS. Indeed, in order to
defeat Defendants' cross-motion for summary judgment Tisi must
set forth disputed facts material to a finding of striking
similarity. This he has not done.
Under the stringent test of "striking similarity," a plaintiff
can avoid dismissal only by proving that the works "are so
`strikingly similar' as to preclude the possibility of
independent creation." Cox, 1997 WL 251532 at *3 (quoting Gaste,
863 F.2d at 1067-68); see also Ferguson v. National Broad. Co.,
584 F.2d 111, 113 (5th Cir. 1978) (same). "[S]triking similarity
exists when two works are so nearly alike that the only
reasonable explanation for such a great degree of similarity is
that the later . . . was copied from the first." Cox, 1997 WL
251532 at *5 (citations omitted).
The striking similarity test, moreover, is applied with
particular stringency in cases, such as here, involving popular
music. McRae v. Smith, 968 F. Supp. 559, 566 (D.Colo. 1997)
(citing Gaste, 863 F.2d at 1068). Indeed, the Second Circuit has
instructed that a court must be "mindful of the limited number of
notes and chords available to composers and the resulting fact
that common themes frequently appear in various compositions,
especially in popular music." Gaste, 863 F.2d at 1068; see also
McRae, 968 F. Supp. at 566-67 (rejecting plaintiff's experts'
claim of striking similarity because most of the elements the
experts relied on — such as the songs' rhythm, chord
progression, and melodic line — were common musical
elements which were not copyrightable); Jarvis v. A&M Records,
827 F. Supp. 282, 291 (D.N.J. 1993) ("Easily arrived at phrases
and chord progressions are usually non copyrightable");
Intersong-USA, 757 F. Supp. at 282 (songs' structure, patterns,
harmonic progression and recurring eighth note rhythm were common
musical elements which were not copyrightable).
Even construing the facts in the light most favorable to Tisi,
the two songs are not strikingly similar as a matter of law.
Significantly, Tisi cannot contend that either the lyrics or the
melody of TAP are strikingly similar to SYS. His striking
similarity theory is based solely on basic, non-protectable
musical elements found in his song: the key of A major, tempo
(although Tisi's expert concedes that TAP actually has a slower
tempo), a chord structure/harmonic progression common to much
rock music (although the structure is not identical, which Tisi's
expert admits), the guitar rhythm (but not the overall
rhythm and percussion, nor the additional guitar rhythms in TAP),
and the fact that the chords of both songs are in "root" position.
These elements are not copyrightable as a matter of law and summary
judgment for defendants is appropriate. See, e.g., McRae, 968 F.
Supp. at 566-67; Jarvis, 827 F. Supp. at 291; Intersong-USA, 757
F. Supp. at 282.
As found above, there is nothing unusual about the key of A
Major, a "I-IV" chord progression, the rhythm of SYS, an acoustic
guitar introduction, or the so-called "adult contemporary" style
of his song, as are demonstrated in numerous songs written and
recorded by other well-known recording artists. The elements Tisi
alleges were copied are not copyrightable.*fn3
Further, numerous elements of the two songs, including the
structure, chords and rhythm, are clearly distinguishable from
one another. "Although plaintiff's expert opines that the songs
are strikingly similar, an issue of fact cannot be created by
merely reciting the magic words `strikingly similar' and `no
possibility of independent creation.'" McRae, 968 F. Supp. at
Finally, as found above, Patrick has established by unrebutted
evidence that TAP was created independently. Even a prima facie
case of copying may be rebutted by proof of independent creation.
See, e.g., Procter & Gamble Co. v. Colgate-Palmolive Co.,
199 F.3d 74, 77 (2d Cir. 1999); Repp v. Webber, 132 F.3d 882, 889 (2d
Cir. 1997) ("[i]ndependent creation is an affirmative defense,
evidence of which may be introduced to rebut a prima facie case
of infringement"); Dimmie, 88 F. Supp.2d at 150-51; Cox, 1997 WL
251532, at *7 ("Even if plaintiffs were able to infer copying,
defendants could rebut this inference with evidence that the
challenged work was independently created.").
In sum, the two songs share nothing in common aside from the
use of basic pop and rock musical devices, which are common to
many, many songs. The numerous differences between the chord
progressions, tempo, rhythm, structure, lyrics and melodies of
the two songs precludes as a matter of law a finding of striking
For the reasons set forth above, Tisi' motions for a
preliminary injunction and for summary judgment are denied.
Defendants' motion for summary judgment is granted.
Submit judgment on notice.
It is so ordered.