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Axelrod & Cherveny Architects, P.C. v. T. & S. Builders, Inc.

United States District Court, E.D. New York

May 2, 2013

AXELROD & CHERVENY, ARCHITECTS, P.C., DAVID SALYARDS, ARCHITECTS GROUP INC., COUNTRY VIEW PROPERTIES DEVELOPMENT CORP., and WINDING WOOD, INC., Plaintiffs,
v.
T. & S. BUILDERS INC., SALVATORE MALGUARNERA and RED BARN ESTATES, LLC, Defendants

For Plaintiffs: Thomas M. Fleming, Esq., MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, Woodbury, New York.

For Defendants: Stephen R. Jellenik, Esq., SCHEYER & JELLENIK, ESQS., Nesconset, New York.

OPINION

Page 358

MEMORANDUM & ORDER

Denis R. Hurley, United States District Judge.

Plaintiffs Axelrod & Cherveny Architects, P.C. (" Axelrod" ), David Salyards (" Salyards" ), Architects Group Inc. (" AGI" ), Country View Properties Development Corp. (" Country View" ), and Winding Wood, Inc. (collectively, " plaintiffs" ) commenced this action against defendants T. & S. Builders Inc. (" T& S" ), Salvatore Malguarnera (" Malguarnera" ), and Red Barn Estates, LLC. (" Red Barn" ) (collectively, " defendants" ) alleging that defendants, inter alia, infringed upon the copyrights of Axelrod and Salyards by designing, marketing, constructing, and selling four homes under the model name " the Franklin" that were substantially similar

Page 359

to plaintiffs' copyrighted architectural designs known as " Home Design 2434" and the " Georgetown II." Axelrod and Salyards moved for partial summary judgment pursuant to Federal Rule of Civil Procedure (" Rule" ) 56 as to Counts I, II, III, and V of the Amended Complaint. In a Memorandum & Order dated August 26, 2008 (the " August 26 Order" ), the Court directed the parties to submit supplemental briefing on two issues, as described infra . Having reviewed the parties' supplemental briefs, and for the reasons set forth below, plaintiffs' motion is granted.

BACKGROUND [1]

Salyards and Axelrod each hold Certificates of Registration issued by the United States Copyright Office for their residential home designs known as " Home Design 2434" and " Georgetown II," respectively.[2] Country View, acting with the consent of Salyards, AGI (an architectural firm of whom Salyards is a principal), and Axelrod, created an advertising brochure to market the Georgetown II (the " Georgetown II Brochure" ). The Georgetown II Brochure, which was not itself copyrighted, contains, inter alia, an artist's rendition of the copyrighted design of the home's exterior as well as a two-page floor plan for the copyrighted design of the interior of the home.

Plaintiffs allege that defendants T& S (a builder of residential homes), Malguarnera (the president of T& S) and Red Barn (a limited liability company engaged in the construction of one-family dwellings) illegally copied the Georgetown II design for use in connection with the construction of four homes under the model name " the Franklin" on Long Island, without plaintiffs' permission. It is undisputed that T& S used sales literature to market the Franklin model. These advertisements contain a copy of the first page of the Georgetown II Brochure, displaying the exterior of the Georgetown II and actually referring to the Franklin as the Georgetown II, with the name " Country View" removed.

In addition, one of the Franklin flyers includes the two-page floor plan from the Georgetown II Brochure. Another depicts a floor plan which is nearly identical to the floor plan for the Georgetown II, except for two modifications, i.e., the lavatory on the first floor in the Georgetown II is situated differently than in the Franklin, and the Georgetown II second floor plan includes one walk-in closet, while the Franklin plan calls for two. Otherwise, the two floor plans are identical.

Defendants T& S and Red Barn[3] ultimately constructed four Franklin homes, three of which Defendants built and sold pursuant to three separate contracts of sale. The fourth home was completed for Salvatore Malguarnera, Jr., the son of defendant Malguarnera.

The Amended Complaint

Count I alleges that " Defendants designed, constructed, advertised, marketed and sold a [Franklin] ...


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