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Cohen v. G&M Realty L.P.

United States District Court, E.D. New York

March 31, 2017

JONATHAN COHEN, SANDRA FABARA, STEPHEN EBERT, LUIS LAMBOY, ESTEBAN DEL VALLE, RODRIGO HENTER DE REZENDE, DANIELLE MASTRION, WILLIAM TRAMONTOZZI, JR., THOMAS LUCERO, AKIKO MIYAKAMI, CHRISTIAN CORTES, DUSTIN SPAGNOLA, ALICE MIZRACHI, CARLOS GAME, JAMES ROCCO, STEVEN LEW, and FRANCISCO FERNANDEZ, Plaintiffs,
v.
G&M REALTY L.P., 22-50 JACKSON AVENUE OWNERS, L.P., 22-52 JACKSON AVENUE, LLC, ACD CITIVIEW BUILDINGS, LLC, and GERALD WOLKOFF, Defendants. MARIA CASTILLO, JAMES COCHRAN, LUIS GOMEZ, BIENBENIDO GUERRA, RICHARD MILLER, CARLO NIEVA, and KENJI TAKABAYASHI, Plaintiffs,
v.
G&M REALTY L.P., 22-50 JACKSON AVENUE OWNERS, L.P., 22-52 JACKSON AVENUE, LLC, ACD CITIVIEW BUILDINGS, LLC, and GERALD WOLKOFF, Defendants.

          MEMORANDUM & ORDER

          FREDERIC BLOCK, Senior United States District Judge

         When this case first began on October 10, 2013, the plaintiffs principally invoked the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, to prevent the destruction of their paintings, all of which adorned either the exterior or the interior of buildings owned by the defendants. Now, the plaintiffs and defendants move for summary judgment. The defendants seek the dismissal of the plaintiffs' third and final complaint, comprising VARA and tort claims (“Cohen Complaint”); the plaintiffs ask for the dismissal of the defendants' counter-claim. For the reasons stated below, the plaintiffs' motion is GRANTED, and the defendants' motion is DENIED IN PART and GRANTED IN PART.

         I

         Because the history of this case has been set forth in the Court's prior decision denying the plaintiffs' request for a preliminary injunction, see Cohen v. G&M Realty L.P., 988 F.Supp.2d 212 (E.D.N.Y. 2013), a brief overview will suffice.[1]

         The several buildings comprising 5Pointz, owned by either Gerald Wolkoff (“Wolkoff” or “Gerald”) or one of the four named corporate defendants that he controls, had housed various commercial enterprises for many years. In the 1990s, however, uninvited graffiti by many self-proclaimed aerosol artists colored the buildings' exterior walls. In 2002, so as to control this problem, Jonathan Cohen (“Cohen”), one of the plaintiffs, approached Wolkoff and offered to become the curator of any future works that would be permitted to be painted on the walls. Though the agreement's precise terms remain disputed, Wolkoff orally agreed to this general bargain.

         Under Cohen's guidance, “the quality of the aerosol art vastly improved, ” and “[t]he site became known as 5Pointz and evolved into a mecca for high-end works by internationally recognized aerosol artists.” Id. at 219; see also 2d Am. Compl. ¶ 1, No. 13-cv-5612 (“Cohen Compl.”). Although Wolkoff recognized this fact and had even come to appreciate the work, he and the companies he managed (as well as his son, David Wolkoff) eventually decided to destroy the 5Pointz buildings and replace them with two-high rise towers containing 800 luxury rentals and more than 200 affordable units. The City Planning Commission blessed this project with a building permit issued on August 21, 2013.

         To prevent their works' destruction, Cohen and other artists sued the defendants on October 10, 2013. As in their two later pleadings, the plaintiffs then asserted not only VARA claims but also common law tort claims. With the complaint, the plaintiffs filed a motion for a preliminary injunction. On October 17, 2013, the Court issued a temporary restraining order, and on November 12, 2013, denied their request for injunctive relief. On June 17, 2014, the plaintiffs filed the Cohen Complaint. In it, four claims are pled: (1) VARA, (2) intentional infliction of emotional distress (“IIED”), (3) conversion, and (4) property damage. Cohen Compl. ¶¶ 191-210. The defendants responded with an answer and counterclaim for abuse of process. Discovery commenced, and these motions followed.

         On June 3, 2015, Maria Castillo and other artists (“Castillo Plaintiffs”) initiated a separate lawsuit against the defendants (“Castillo Matter”). As here, the Castillo Plaintiffs adduce the same four claims in their pleadings. And, as here, they and the defendants filed motions for summary judgment raising the same substantive arguments, now addressed by the Court.

         II

          A. Plaintiffs' VARA Claims

          1. Existence of Genuine Dispute

          “[A]s [the] defendants' expert correctly [and previously] acknowledged, VARA protects even temporary works from destruction.” Cohen, 988 F.Supp.2d at 227; cf. Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 51 (1st Cir. 2010) (noting that, while “[t]he text of VARA itself does not state when an artistic project becomes a work of visual art subject to its protections, ” VARA protects certain “unfinished” works of art).

         Moreover, even if a piece of art encompassed by VARA is destroyed, VARA provides that “monetary damages may be awarded” if “it is ultimately determined after trial that the plaintiffs' works were of ‘recognized stature.'” Cohen, 988 F.Supp.2d at 227; see also Pollara v. Seymour, 150 F.Supp.2d 393, 399 n.9, n.10 (N.D.N.Y. 2001) (holding that, if VARA applied, damages would be owed).

         The appropriate level of damages is set in the more general provisions of the Copyright Act (“Act”), which authorize either statutory or actual damages.[2] 17 U.S.C. § 504(b), (c)(1) (setting forth relevant standards); H.R. Rep. No. 101-514, at (1990) (noting that VARA “makes all title 17 remedies (excluding the criminal sanctions provided by section 506) available to those authors, ” including “monetary damages”). Though statutorily undefined, “‘[r]ecognized stature' is a necessary finding under VARA in order to protect a work of visual art.” Martin v. City of Indianapolis, 192 F.3d 608, 612 (7th Cir. 1999). To make this requisite showing, “plaintiffs generally, but not inevitably, will need to call expert witnesses to testify before the trier of fact.” Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303, 325 (S.D.N.Y. 1994). Naturally, defendants often respond with their own experts. Cf. Scott v. Dixon, 309 F.Supp.2d 395, 400 (E.D.N.Y. 2004) (“The stature of a work of art is generally established through expert testimony.”); Phillips v. Pembroke Real Estate, Inc., 288 F.Supp.2d 89, 97 (D. Mass. 2003) (noting that courts “generally” determine whether a particular work possessed “recognized statute” based on expert testimony); Pollara v. Seymour, 206 F.Supp.2d 333, 336 (N.D.N.Y. ...


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