Pavia v. 1120 Ave. of the Americas Associates, 95 Civ. 1302 (RWS).

• Decision Date: 25 September 1995
• Docket Number: No. 95 Civ. 1302 (RWS).,95 Civ. 1302 (RWS).
• Parties: Philip PAVIA, Plaintiff, v. 1120 AVENUE OF the AMERICAS ASSOCIATES, The Hippodrome Garage and Building Company, Edison Parking Corporation, Harold A. Gottesman, The New York Hilton Joint Venture, The Hilton Hotels Corporation and The Prudential Insurance Company of America, Defendants.
• Court: U.S. District Court — Southern District of New York

901 F. Supp. 620

Philip PAVIA, Plaintiff, v. 1120 AVENUE OF the AMERICAS ASSOCIATES, The Hippodrome Garage and Building Company, Edison Parking Corporation, Harold A. Gottesman, The New York Hilton Joint Venture, The Hilton Hotels Corporation and The Prudential Insurance Company of America, Defendants.

No. 95 Civ. 1302 (RWS).

United States District Court, S.D. New York.

September 25, 1995.

COPYRIGHT MATERIAL OMITTED

Gale P. Elston, New York City, for Plaintiff.

Curtis, Morris & Safford, P.C., New York City (Adam L. Brookman, of Counsel), for Moving Defendant.

OPINION

SWEET, District Judge.

Plaintiff Philip Pavia ("Pavia"), an artist and sculptor, brought this action alleging, inter alia, that Defendants, holders of one of his sculptures, improperly displayed and mutilated his artwork in violation of 17 U.S.C. § 106A and Section 14.03 of the New York Arts and Cultural Affairs Law. Defendants 1120 Avenue of the Americas Associates, The Hippodrome Garage and Building Company, Edison Parking Corporation, and Harold A. Gottesman have moved this Court to dismiss Pavia's complaint against them, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. The motion is granted with respect to all claims arising under federal law and as to those claims arising under New York law based on improper display prior to February 23, 1992. The motion is denied with respect to those claims under New York law arising thereafter.

I. The Parties

Plaintiff Pavia is a professional artist and sculptor residing in New York, New York.

Defendant The Hilton Hotels Corporation ("Hilton") is a Delaware corporation with offices at 9336 Civic Center Drive, Beverly Hills, California.

Defendant The Prudential Insurance Company of America ("Prudential") is a New Jersey corporation with offices at 51 JFK Parkway, Short Hills, New Jersey.

Defendant The New York Hilton Joint Venture (the "Joint Venture") is a partnership between Hilton and Prudential with an office at The New York Hilton Hotel and Towers at 1335 Avenue of the Americas, New York, New York. (Hilton, Prudential and the Joint Venture are, collectively, the "Non-Moving Defendants.")

Defendant The Hippodrome Garage and Building Company ("Hippodrome") is a partnership having its principal place of business at 1120 Avenue of the Americas, New York, New York.

Defendant Edison Parking Corporation ("Edison") is a part owner of the premises at 1120 Avenue of the Americas, New York, New York and is a New York corporation with offices at 1120 Avenue of the Americas, New York, New York.

Defendant 1120 Avenue of the Americas Associates ("1120 Associates") is a general partnership having offices at 1120 Avenue of the Americas and 60 East 42 Street, New York, New York.

Defendant Harold A. Gottesman ("Gottesman") is an individual maintaining offices at 1120 Avenue of the Americas, New York, New York. Gottesman is a general partner of 1120 Associates. (Defendants Hippodrome, Edison, 1120 Associates and Gottesman are, collectively, the "Moving Defendants"; the Non-Moving Defendants and the Moving Defendants are, collectively, the "Defendants.")

II. Prior Proceedings

Pavia filed his complaint in this action on February 23, 1995, asserting the following six claims for relief: (1) negligence against the Non-Moving Defendants, (2) fraud against the Non-Moving Defendants, (3) violations by the Defendants of the Visual Artists Rights Act of 1990, 17 U.S.C. § 101 et seq. ("VARA") ("Count III"), (4) interference by the Defendants with Pavia's copyright ("Count IV"), (5) violations by the Defendants of Section 14.03 of the New York Arts and Cultural Affairs Law ("Count V"), and (6) infringement by the Defendants of Pavia's copyright ("Count VI").

On May 9, 1995, the Non-Moving Defendants filed an Answer and lodged a counterclaim against Pavia and six cross-claims against the Moving Defendants.

The Moving Defendants filed the instant motion to dismiss Pavia's Complaint against them on May 8, 1995. Oral argument on the motion was heard on June 27, 1995, and the motion was deemed fully submitted at that time.

III. Rule 12(b)(6) Standards

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court presumes the factual allegations of the complaint to be true and draws all factual inferences in the plaintiff's favor and against the defendant. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations set forth and considered herein are taken from Pavia's Complaint and do not constitute findings of fact by the Court.

Rule 12(b)(6) imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2905-06, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

In determining the sufficiency of the present complaint, consideration is limited to the factual allegations of the complaint. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).

IV. Facts

In 1963, the Non-Moving Defendants commissioned Pavia to create a work of art to be placed in the lobby of the Hilton Hotel (the "Hotel") on Sixth Avenue (now called Avenue of the Americas) in New York City. Although consideration was paid for Pavia's services, title to the work did not pass from Pavia to the Non-Moving Defendants. Pavia created a large bronze sculpture, entitled "The Ides of March," consisting of three large, diamond-shaped, standing forms and one smaller form lying on its side. Soon thereafter, "The Ides of March" was recognized by critics and the news media as a noteworthy work of art. The sculpture remained on display at the Hotel until 1988. Pavia filed for copyright registration for the work on January 11, 1995.

According to Pavia's assertions, at about the time the sculpture was commissioned, the Non-Moving Defendants assured Pavia, with knowledge that they were lying and intent to induce him to relinquish possession of his sculpture, that "The Ides of March" would be permanently and properly displayed in the lobby of the Hotel. Although the Non-Moving Defendants had no intention to display the work there permanently and properly, Pavia allegedly believed these representations to be true and relied on them in entrusting his work to the Non-Moving Defendants.

On July 11, 1988, the Defendants entered into an agency agreement, which permitted the Moving Defendants to take possession of "The Ides of March" and display the work at the Hippodrome Parking Garage (the "Garage"), a commercial warehouse located at 1120 Avenue of the Americas. The lobby and ground floor of the Garage are accessible to the public twenty-four hours a day, seven days a week.

Two of the original four bronze forms that comprised "The Ides of March" have been displayed in the Garage since 1988. The other two forms have been removed, and the work is currently displayed in this disassembled state. The improper display of "The Ides of March" is alleged to have damaged Pavia's honor and reputation as an artist, and that harm is alleged to continue as long as "The Ides of March" is improperly displayed. From 1992 to 1994, Pavia made numerous requests of the Non-Moving Defendants to display the piece properly. The Non-Moving Defendants in turn requested that the Moving Defendants return the work to them. The Moving Defendants have so far refused to return the piece.

V. Discussion

A. Count V

1. The Acts Alleged Violate § 14.03

Section 14.03 of the New York Arts and Cultural Affairs Law ("§ 14.03") provides in pertinent part:

(1) ... on and after January first, nineteen hundred eighty-five, no person other than the artist or a person acting with the artist's consent shall knowingly display in a place accessible to the public or publish a work of fine art or limited edition multiple of not more than three hundred copies by that artist or a reproduction thereof in an altered, defaced, mutilated or modified form if the work is displayed, published or reproduced as being the work of the artist, or under circumstances which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom....

(4)(a) An artist aggrieved under subdivision one ... of this section shall have a cause of action for legal and injunctive relief.

N.Y. Arts & Cult.Aff.Law § 14.03 (McKinney Supp.1993).

Taking Pavia's factual allegations to be true, as is required on a motion to dismiss under Rule 12(b)(6), the Moving Defendants have violated § 14.03. "The Ides of March" is a work of fine art, see N.Y.Arts and Cult. Aff.Law § 11.01(9) (McKinney Supp.1993), produced in a single copy. Without Pavia's consent, the Moving Defendants have knowingly displayed the sculpture since 1988 at the Garage — a place accessible to the public — in an altered, defaced, mutilated, or modified form. Pavia's reputation has been and continues to be damaged by the improper display. Although Pavia fails to allege that authorship of the sculpture is explicitly attributed to him as now displayed, the facts as alleged — particularly the notoriety of Pavia and the sculpture — directly give rise to an inference, for the purposes of this motion, that the work can be regarded by others as Pavia's work. "The Ides of March," then, is protected under § 14.03, and the Moving Defendants' acts are of the type the statute prohibits.

2. The Statute of Limitations Bars Improper Display Before February 23, 1992

a. The Statute Ap...