Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

POLLARA v. SEYMOUR

July 18, 2001

JOANNE POLLARA, PLAINTIFF,
v.
JOSEPH J. SEYMOUR AND THOMAS E. CASEY, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd, United States District Judge

AMENDED OPINION

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

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.

II. FACTS

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.
Plaintiff is an artist in Albany, New York. She frequently paints for hire, and has often been asked to create large works of art for various groups in the Albany area. As with previous years, Pollara was hired by a public interest group, the Gideon Coalition,*fn1 to create the painting to protest funding cuts for legal aid which the Coalition feared would result in a denial of the right to counsel for the poor. This painting was to be displayed at ESP as part of the Gideon Coalition's annual lobbying effort at the New York State Capital in Albany. She created a 10-foot by 30-foot mural which depicted stylized figures standing in line outside closed doors to legal offices. The mural also contained the phrases "Executive Budget Threatens the Right To Counsel" and "Preserve the Right To Counsel, Now More Than Ever."
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 control.

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

III. STANDARD OF ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.