Zitz v. Pereira

• Decision Date: 30 September 1999
• Docket Number: No. CV 97-0575(ETB).,CV 97-0575(ETB).
• Citation: 119 F.Supp.2d 133
• Parties: Richard J. ZITZ, Plaintiff, v. Leonel Bernadino Dos Santos PEREIRA and Peter Podlas, Defendants.
• Court: U.S. District Court — Eastern District of New York

119 F.Supp.2d 133

Richard J. ZITZ, Plaintiff, v. Leonel Bernadino Dos Santos PEREIRA and Peter Podlas, Defendants.

No. CV 97-0575(ETB).

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

September 30, 1999.

Daniel P. Burke, Thomas M. Galgano, Galgano & Burke, Hauppauge, NY, for Richard J. Zitz, Inc., plaintiff.

John L. Ciarelli, Ciarelli & Dempsey, Melville, NY, for Leonel Pereira, Leonel Bernadino Dos Santos Pereira, defendant.

Marie Ann Hoenings, L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City, NY, Paula M. Gart, L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City, NY, for Peter T. Podlas, defendant.

MEMORANDUM OPINION and ORDER

BOYLE, United States Magistrate Judge.

FACTS

This is an action for copyright infringement of a house design created by the plaintiff, Richard J. Zitz, Inc. ("Zitz").

The parties consented to have this action tried before me non-jury, pursuant to 28 U.S.C. § 636(c). This memorandum opinion and order constitutes my findings of fact and conclusions of law, pursuant to Rule 52 of the Federal Rules of Civil Procedure.

Richard J. Zitz, is a building contractor and the sole owner of the plaintiff,¹ a building contracting company that designs and makes single family houses in and around Southampton, New York. (Transcript of Proceedings, dated July 20-21, 1998 at 23-24) (hereinafter "Tr."). Zitz is neither an architect nor an engineer. (Tr. 242, 245.) As of the date of this bench trial, Zitz has built eight houses. (Tr. 24.) The first house at issue in this case (hereinafter "Townhouse I") was originally designed to fit within a triangular piece of property owned by Zitz on Little Noyack Path in Water Mill, New York. (Tr. 40, 64.) It was completed in 1991. Zitz built a second version of Townhouse I on Summerfield Lane in Bridgehampton and a third, with the addition of a breakfast nook, on Deerfield Road in Water Mill. (Pl.Ex. 4, 40; Tr. 45, 48-49, 271-72.) Zitz also designed a larger house based on the design of Townhouse I ("Townhouse II"), which had not been constructed as of the date of this trial. (Tr. 317.)

Zitz met the defendant, Leonel Pereira ("Pereira"), on a job site at which they both were working. (Tr. 63.) Pereira is a house painter. (Tr. 60, 368.) Zitz employed Pereira to paint the first house—at 45 Little Noyack Path—and the Summerfield Lane house. (Id.) During the course of his employment, Pereira told Zitz that he was interested in having Zitz build him a house similar to the Summerfield Lane house. (Id.) Subsequently, Pereira visited Zitz in his office at the Little Noyack Path house somewhere between ten and twenty times to discuss the plans for his future house (which was to become Townhouse II). (Tr. 64.) Zitz testified that he showed various plans and models to Pereira during those visits. (Id.) Townhouse II was designed in the same manner as Townhouse I and was based on the Deerfield Road house. (Tr. 53.)

Zitz helped Pereira find a piece of property on Uncle Leo's Lane, in Watermill, suitable for the new house. (Tr. 68.) As a condition of the contract to buy the land, Pereira was required to obtain the seller's approval of the plans for the dwelling to be built on the property. Zitz provided the plans to Townhouse I, which were annexed to the contract, and Zitz accompanied Pereira to the closing to keep them in his possession. (Tr. 66-68.) Pereira closed on the land on December 2, 1992. (Tr. 67.)

On January 3, 1993, Zitz drafted a contract for the construction of Pereira's proposed house on Uncle Leo's Lane. (Tr. 68-69.) Zitz gave Pereira two copies of the proposed contract. (Tr. 72.) Although Zitz did not give Pereira any drawings of Townhouse II, he did provide him with the proposed contract and the specifications for the house. (Id.) The specifications included, among other things, information about the building materials, plumbing and heating, the electrical system, and the frame measurements. (Id.) Zitz testified that he never gave any drawings to Pereira, and that it was not his practice to ever give plans to a customer until the construction contract had been signed. (Tr. 72-73, 75.) Zitz testified that after the contract was drafted, by coincidence, he spotted Pereira's van parked outside a real estate office in January 1993. (Tr. 73.) When he stopped in the office to inquire whether Pereira was there, he was informed that Pereira was across the street at the library making photocopies. (Tr. 73.) Concerned about what Pereira was copying, Zitz started towards the library. (Id.) There he ran into Pereira, who was carrying a manila envelope containing the still unexecuted contract and the specifications on the house. (Tr. 74.) Zitz took the envelope away and said "I guess you're not going to be building this house" and then walked off. (Tr. 74, 280-81.) There were no plans in the envelope. (Tr. 74, 280-82.)

Pereira testified that this encounter occurred in January 1993. He testified that he had copied only the unexecuted contracts. He stated that the specifications were also in the envelope. (Tr. II 32.)² Zitz testified that Pereira had not photocopied any plans of Townhouse II, since they were not in the envelope, but that he believed Pereira had memorized his plans of the house. (Tr. 285.) Pereira built the house on Uncle Leo's Lane, using defendant architect Peter Podlas ("Podlas") later in 1993. (Tr. 374.) Pereira sold the house in 1995 or 96 and started to build the second house on Noyack Path shortly thereafter. (Tr. II 38.)

Zitz originally filed an action for copyright infringement against Pereira on March 3, 1996.³ (Tr. 281; Def.Ex. E at 15.) In the 1996 complaint, Zitz alleged that:

It was in late January 1993, when plaintiff's president, happened on the defendant Pereira in the Southampton Town Public Library photocopying the contract, plans, and specifications owned and produced by plaintiff that plaintiff first became aware of defendant Pereira's intention to proceed on his own with construction of the house, using all of the plans drawings and specifications obtained from plaintiff.

(Def.Ex.E, ¶ 15.)

As already noted, Zitz testified at trial that he did not catch Pereira copying plans since none were included in the envelope. (Tr. 282.) Zitz further testified that Trunzo, his attorney at the time, was mistaken about the facts of that particular incident and erroneously included them in the 1996 complaint. (Tr. 282; Def.Ex. E, ¶ 15.) Zitz testified that the complaint in the instant action, filed February 4, 1997⁴, and the first amended complaint filed February 14, 1997, also contained the same incorrect allegation. (Tr. 282, 289; Def.Ex. F at 9; Def.Ex G at 9.) Zitz testified that he did not remember when he noticed the error, but he told his attorneys about it as soon as he did. (Tr. 290-92.) On July 1, 1997 the second amended complaint was filed, without these allegations, simply stating that:

In late January of 1993, plaintiff's president happened on defendant Pereira outside the Southampton Town Public Library with photocopies of the contract previously provided to defendant Pereira by plaintiff. Richard J. Zitz took the photocopies of the contract from defendant Pereira and told defendant Pereira not to build Town House II.

Complaint, ¶ 15.

At trial, Zitz testified that the first time he saw Pereira's house on Uncle Leo's Lane was late in 1994, after someone showed him a copy of Homes & Land Magazine that had pictured the house on page 33. (Tr 75-76; 307.) Zitz testified that the first time he saw Pereira's second house on Noyack Path,⁵ which he claims is an unauthorized copy of Townhouse II, was on page 42 of a different Homes &amp Land magazine at some time in the first half of 1996. (Tr. 78-81.) Zitz testified that shortly after seeing the Noyack Path house in Homes & Land he went to the property to see it. (Tr 78-81.)

Zitz lived in the Little Noyack Path house from September of 1992 through February of 1994. (Tr. 279.) Zitz testified that during this time he had traveled south on Little Noyack Path to Cooks Lane, but was unable to remember if he had during 1992 or 1993 when Pereira was building his house on Uncle Leo's lane. (Tr. 273-74.) A map of the area reveals that both of Pereira's houses were built very close to each other and also very close to the intersection of Cooks Lane and Little Noyack Path, which is within five miles of the Zitz house on Little Noyack Path. (Def.Ex. C.) In March of 1994, Zitz moved to 1879 Montauk Highway in Bridgehampton and lived there until October 1994. (Tr. 279.) The latter house is located approximately three miles south of Pereira's two houses. (Def.Ex. C.) In November 1994, Zitz moved to 77 Lake Drive, Southampton and lived there until January 1997. That house is approximately seven miles from the Pereira houses. (Tr. 280; Def.Ex. C.) From February 1997 through the date of this trial, Zitz was living at 219 Middle Land Highway, also in Southampton, and approximately five miles from the Pereira houses. (Tr. 280; Def.Ex. C.) Zitz testified that the community in which he and Pereira lived and worked is small. (Tr. 301.) Zitz testified that many of the roads in the areas are, or were at the times in question, nothing more than unpaved dirt paths, many of which were unmarked; he testified that this made it difficult to ascertain from a map which roads he actually traveled while living in those various areas. (Tr. 272.)

On cross-examination, the defendant introduced deposition testimony of Zitz relevant to when he first became aware that his Townhouse II design had been coped by Pereira. (Tr. 298.) The testimony related to a conversation that Zitz had with the purchaser of the Summerfield Lane house, Thomas Moore ("Moore"). (Tr. 297-99.) The application for a building permit on that house is dated October 16, 1991 (Df. Podlas' Ex. BB.) Moore reportedly commented to Zitz that he was upset because Pereira was constructing a house resembling his. (Tr. 297-98.) The relevant...