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Argento v. Santiago

United States District Court, W.D. New York

December 18, 2017

STEVEN C. ARGENTO, individually and d/b/a S.C. FINE ARTS, Plaintiff,




         On 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 That Jazz.

         On 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.


         I. Summary Judgment Standard

         A 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.

         The 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).

         II. The Material Facts are Undisputed

         Federal 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 provides that:

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 statement.

         Because 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 summarized below.

         A. Plaintiff's Primary Dispute with Marilyn Santiago

         Renowned 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 ...

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