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POLLARA v. SEYMOUR
July 18, 2001
JOANNE POLLARA, PLAINTIFF,
JOSEPH J. SEYMOUR AND THOMAS E. CASEY, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge
MEMORANDUM-DECISION AND ORDER
On June 14, 1999, plaintiff Joanne Pollara ("Pollara") commenced the
instant action against defendants Joseph J. Seymour ("Seymour") and
Thomas E. Casey ("Casey") (collectively, "defendants") pursuant to the
Visual Artists Rights Act, 17 U.S.C. § 106A, and 42 U.S.C. § 1983.
Defendants answered the complaint on July 9, 1999. Defendants now move
for summary judgment on all claims pursuant to Federal Rule of Civil
Procedure 56. Plaintiff opposes. Oral argument was heard on February
23, 2001, in Albany, New York. Decision was reserved.
This action arises from the destruction of a painting created by
plaintiff and displayed, without a permit, at the Empire State Plaza
("ESP"). The following are the facts pertinent to this motion as stated
in the light most favorable to the non-moving plaintiff.
The mural was created on a long sheet of paper, and was designed to be
displayed by being affixed to a large metal frame. Pollara installed the
painting at ESP without a permit, but with the assumption that the Gideon
Coalition had obtained the necessary permission for her to do so. During
the evening after she installed the mural, but before it had been viewed
by the public, it was removed from its frame by ESP employees. It was
torn and severely damaged in the process.
Casey is the Plaza Manager at ESP for the New York State Office of
General Services ("OGS"). Seymour is the Commissioner of OGS.*fn2 Casey
was responsible for ordering and supervising the removal of Pollara's
painting by ESP employees. Both Casey and one of his subordinates, Joseph
Keyser ("Keyser"), testified at deposition that Casey instructed Keyser
to remove the mural without damaging it, but that Keyser expressed doubt
as to whether it could be removed without ripping it. (Pl. Mem. at 9.)
Defendants claim that the mural ripped accidentally as it was being
removed from the steel support poles to which it was affixed.
Plaintiff disputes this version of events. Based on her experience
erecting and removing murals of this type, she asserts that, if the
damage occurred as defendants claim, the rips in the mural would have
been diagonal rather than vertical (as they were). She alleges that the
three vertical rips in the mural are indicative of intentional tearing of
the mural from its frame, and that such tearing would not occur from a
careful attempt to remove the mural without damaging it.
In addition, Pollara alleges that, when she returned to ESP the next
day, she found the mural torn and crumpled in a corner of Casey's
office. Defendants dispute this allegation, and claim that the mural was
carefully rolled and stored for plaintiff's retrieval. For purposes of
the instant motion, it is plaintiff's version of the facts which must
Based on the foregoing, Pollara commenced the instant action pursuant
to the Visual Artists Rights Act ("VARA"), which provides artists with
the right "to prevent any [intentional or grossly negligent] destruction
of a work of recognized stature." 17 U.S.C. § 106A(a)(3)(b).*fn3
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