United States District Court, W.D. New York
STEVEN C. ARGENTO, individually and d/b/a S.C. FINE ARTS, Plaintiff,
MARILYN SANTIAGO, FOR THE LOVE OF RAMÓN LLC, ALL THAT JAZZ, ROCHESTER, LLC, ACT TWO HOME STAGING, and JOHN DOES 1 to 10. Defendants.
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE
March 17, 2016, Plaintiff Steven Argento brought this
copyright and trademark infringement suit against his Aunt
Marilyn Santiago. ECF No. 1. On June 24, 2016, Plaintiff
amended his Complaint to add Defendant All That Jazz
(hereinafter “Defendant”). ECF No. 7.
Specifically, Plaintiff accuses Defendant of unlawfully
distributing Plaintiff's copyrighted work in violation of
17 U.S.C. § 106(3), and knowingly selling merchandise
bearing a false or counterfeit trade-mark in violation of
Section 33.09 of the New York Arts and Cultural Affairs Law
(“ACAL”). Id. Following a November 2018,
2016 mediation session, Plaintiff settled with Marilyn
Santiago, but he maintains his suit against Defendant All
August 9, 2017, Defendant moved for summary judgment. ECF No.
41. Although Plaintiff's Response was due by October 19,
2017, he has not responded to Defendant's Motion or
requested an extension. For the reasons stated below, a
ruling on Defendant's Motion is DEFERRED with respect to
Plaintiff's copyright infringement claim, and
Defendant's Motion is GRANTED with respect to
Plaintiff's ACAL claim.
Summary Judgment Standard
motion for summary judgment should be granted where the
moving party shows that “there is no genuine dispute as
to any material fact” and that the moving party
“is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is material if it “might
affect the outcome of the suit under the governing law . . .
.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute regarding such a fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Thus, when presented with a motion for summary judgment, the
Court must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52.
burden of establishing that no genuine and material factual
dispute exists is on the moving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). To that end,
the Court must resolve all ambiguities and draw all
reasonable inferences in favor of the non-moving party.
See Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d
Cir. 2003). That said, if the non-moving party fails to
respond to their opponent's motion for summary judgment,
“the court may consider as undisputed the facts set
forth in the moving party's affidavits.”
Gittens v. Garlocks Sealing Technologies, 19
F.Supp.2d 104, 109 (W.D.N.Y. 1998). Once the Court is
satisfied that the moving party's assertions are
supported by citations to evidence in the record, and those
assertions show that the moving party is entitled to judgment
as a matter of law, summary judgment is appropriate.
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373
F.3d 241, 244 (2d Cir. 2004).
The Material Facts are Undisputed
Rule of Civil Procedure 56(e)(2) provides that if a party
“fails to properly address another party's
assertion of fact . . . the court may . . . consider the fact
undisputed for purposes of the motion.” The same rule
is contained in Local Rule of Civil Procedure 56(a)(2), which
The papers opposing a motion for summary judgment shall
include a response to each numbered paragraph in the moving
party's statement, in correspondingly numbered paragraphs
and, if necessary, additional paragraphs containing a short
and concise statement of additional material facts as to
which it is contended there exists a genuine issue to be
tried. Each numbered paragraph in the moving party's
statement of material facts will be deemed admitted for
purposes of the motion unless it is specifically controverted
by a correspondingly numbered paragraph in the opposing
Plaintiff failed to file a response to Defendant's
statement of material facts, this Court considers the facts
alleged by Defendant-which are supported by citations to
evidence in admissible form-to be undisputed, in accordance
with these rules. See Gubitosi v. Kapica, 154 F.3d
30, 31 n.1 (2d Cir. 1998). Accordingly, this Court adopts the
Defendant's Statement of Material Facts as to Which There
is No Genuine Issue. ECF No. 41-3. Those undisputed facts are
Plaintiff's Primary Dispute with Marilyn
Rochester-based artist Ramón Santiago died on December
18, 2001, naming his widow, Marilyn Santiago, as the sole
beneficiary of his estate. ECF No. 41-3 at 1. Accordingly,
all intellectual property interests in his art passed to Ms.
Santiago. Id. In 2002, Ms. Santiago and Plaintiff,
her nephew, entered into an agreement by which Plaintiff was
to market and sell Ramón Santiago's artwork and
share 40% of the sale proceeds with Ms. Santiago.
Id. The agreement gave Plaintiff ...