Fortgang v. Pereiras Architects Ubiquitous LLC

230 F. Supp. 3d 77, 2017 U.S. Dist. LEXIS 8175, 2017 WL 280713
CourtDistrict Court, E.D. New York
DecidedJanuary 20, 2017
Docket16-cv-3754 (ADS)(AYS)
StatusPublished

This text of 230 F. Supp. 3d 77 (Fortgang v. Pereiras Architects Ubiquitous LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fortgang v. Pereiras Architects Ubiquitous LLC, 230 F. Supp. 3d 77, 2017 U.S. Dist. LEXIS 8175, 2017 WL 280713 (E.D.N.Y. 2017).

Opinion

Decision & Order

SPATT, District Judge:

Homeowners Seth Fortgang and Rivka Fortgang (the “Fortgangs”) allege that copyrighted design elements of their home in Lawrence are being illegally infringed through the construction of a look-a-like home in neighboring Cedarhust.

Presently before the Court is a motion by the Defendants, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6), seeking to dismiss the Fortgangs’ complaint on the ground that it fails to state a plausible claim under the federal Copyright Act of 1976 (the “Copyright Act”), 17 U.S.C. § 101 et seq.

I. Background

The following facts are drawn from the complaint and accompanying exhibits. [81]*81They are construed in favor of the Plaintiffs.

The Fortgangs live in a custom-built home at 14 Auerbach Lane in the village of Lawrence (the “Lawrence Home”). Constructed in 2005, the design of the Lawrence Home was based on architectural plans created by a firm known as DJ Associates Architect, PC (“DJ Associates”).

In August 2015, the individual Defendants Daniella Schwartz and Ari Schwartz (the “Schwartzes”) requested a copy of the plans for the Lawrence Home from the Lawrence Building Department. According to the complaint, the Schwartzes—with the help of co-Defendants Pereiras Architects Ubiquitous LLC and Friedman Group LLC—then used the Lawrence Home’s plans to create a substantially similar architectural design for a home to be built at 266 Villa Place in the nearby Village of Cedarhurst (the “Cedarhurst Home”).

The alleged similarities between the Lawrence Home and the Cedarhurst Home form the principal basis for this action. However, although the complaint refers in general terms to the home’s underlying “architectural drawings,” which apparently relate to the interior and exterior of the Lawrence Home, the well-pled allegations in the complaint focus exclusively on the home’s external fagade. See, e.g., Compl. ¶ 16 (referring to a “visually distinctive and unique exterior stucco fa-gade”); ¶ 19 (including a color photograph of the exterior of the Lawrence Home); ¶ 28 (featuring a side-by-side comparison of the homes’ exteriors in support of the allegation that the Cedarhurst Home “is substantially similar to” the Lawrence Home); ¶ 30 (alleging that the Cedarhurst Home is under construction “and its fagade is not yet complete”); ¶ 31 (alleging that the Defendants intend to build the Cedar-hurst Home “in accordance with” a graphic rendition of the home’s exterior); ¶ 40 (alleging that the Plaintiffs will suffer irreparable harm if the Defendants are not restrained from building the Cedarhurst Home “with an exterior fagade that is substantially similar to” that of the Lawrence Home).

Thus, the Court’s analysis will be limited to any alleged similarities that are observable in the exterior, front-elevation views of the homes which are contained in the complaint and its attachments. This necessarily does not include the argument, set forth solely in the Fortgangs’ legal memorandum, that the. Cedarhurst Home also “eopie[s] the interior ground floor plan” of the Lawrence Home. See Russo v. New York Presbyterian Hosp., No. 09-cv-5334, 2011 U.S. Dist. LEXIS 28202, at *13 (E.D.N.Y. Mar. 3, 2011) (noting that on a motion to dismiss, “a court considers only the allegations made in the complaint and any documents attached thereto, and thus disregards allegations made in a memorandum of law” (citations omitted)); see also Taormina v. Thrifty Car Rental, No. 16-cv-3255, 2016 WL 7392214, at *4, 2016 U.S. Dist. LEXIS 176673, at *11 (S.D.N.Y. Dec. 21, 2016) (a party “cannot supplement his Complaint with facts asserted for the first time in his memorandum of law”).

In this regard, the Court, in its discretion, also declines to consider the extrinsic evidence, which, although not attached to the complaint, was submitted by the parties in connection with the present motion. In the Court’s view, because the complaint cannot fairly be read as containing allegations specifically pertaining to any interior design elements of the Lawrence Home, evidence such as floor plans and architectural drawings is inappropriate to consider at this’juncture. See Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (limiting the kinds of evidence a court may consider in adjudicating a Rule 12(b)(6) motion).

[82]*82With that limitation in mind, the Court notes that the exteriors of the Lawrence Home and the Cedarhust Home, as they are depicted in photographs and graphic renderings in the complaint, do apparently share some similarities. Given the detailed nature of the architectural works in question; and mindful that “the works themselves supersede and control contrary descriptions of them, Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986), rather than attempt its own description of the two structures, the Court will reproduce the following side-by-side comparison, which appears at paragraph 28 of the complaint, and which, for purposes of this motion, the Court accepts as an accurate depiction of the Lawrence Home (left) and the Cedarhurst Home (right):

[[Image here]]

At an unspecified time—apparently after learning of the planned construction of the Cedarhurst Home—the Fortgangs acquired from DJ Associates the proprietary rights to the original architectural drawings for the Lawrence Home, and submitted them to the United States Copyright Office. On June 8, 2016, the Fortgangs received Copyright Registration Number VA 2-006-920 for an architectural work entitled “Fortgang Residence I.” The Court notes that the Registration Certificate is attached to the complaint, but none of the underlying materials submitted to the Copyright Office are in the current record.

At or about the same time that the Fortgangs received copyright protection for the “Fortgang Residence I,” their counsel sent a series of letters to the Defendants demanding that they cease and desist from further construction on the Cedarhurst Home. Following the Defendants’ noncompliance with these demands, the Fortgangs commenced this action seeking to enforce the copyright in the architectural design of the Lawrence Home; to recover alleged monetary damages; and to secure a permanent injunction preventing the Defendants from completing construction on the Cedarhurst Home.

II. Discussion

A. The Standard of Review

Under Rule 12(b)(6), a party may move to dismiss a cause of action that “fail[s] to state a claim upon which relief can be granted.” Thus, “[t]o survive a motion to dismiss, the complaint must plead ‘enough facts to state a claim to relief that is plausible on its face,’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).” Otis-Wisher v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Ashcroft v. Iqbal
556 U.S. 662 (Supreme Court, 2009)
Belair v. MGA Entertainment, Inc.
503 F. App'x 65 (Second Circuit, 2012)
Silberstein v. Fox Entertainment Group, Inc.
424 F. Supp. 2d 616 (S.D. New York, 2004)
Lewinson v. HENRY HOLT AND CO., LLC
659 F. Supp. 2d 547 (S.D. New York, 2009)
Boisson v. Banian, Ltd.
273 F.3d 262 (Second Circuit, 2001)
Aiola v. Malverne Union Free School District
115 F. Supp. 3d 321 (E.D. New York, 2015)
Love v. Premier Utility Services, LLC
186 F. Supp. 3d 248 (E.D. New York, 2016)
Zalewski v. Cicero Builder Dev., Inc.
754 F.3d 95 (Second Circuit, 2014)
Silberstein v. John Does 1-10, Allposters.Com, Inc.
242 F. App'x 720 (Second Circuit, 2007)
Belair v. MGA Entertainment, Inc.
831 F. Supp. 2d 687 (S.D. New York, 2011)
Zalewski v. T.P. Builders, Inc.
875 F. Supp. 2d 135 (N.D. New York, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
230 F. Supp. 3d 77, 2017 U.S. Dist. LEXIS 8175, 2017 WL 280713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortgang-v-pereiras-architects-ubiquitous-llc-nyed-2017.