throbber
INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 1 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF NEW YORK
`
`____________________________________
`MACKENZIE ARCHITECTS, P.C.
`
`
`Plaintiff,
`
`Civil Case No. 15-cv-1105 (TJM/DJS)
`
`
`
`- against –
`
`
`
`
`VLG REAL ESTATE DEVELOPERS,
`LLC; VICTOR GUSH; FGR ASSOCIATES,
`LLC; CAPTAINS LOOKOUT DEVELOPMENT
`LLC; DESIGN LOGIC ARCHITECTS, P.C.;
`CLARK REALTY, LLC; PAUL CLARK;
`FRANK TATE; and ROBERT BUCHER,
`
`
`
`Defendants.
`
`
`
`_______________________________________
`
`
`ANSWER WITH COUNTERCLAIMS
`
`Defendants FGR ASSOCIATES, LLC, CAPTAIN’S LOOKOUT DEVELOPMENT,
`
`
`
`LLC, CLARK REALTY, LLC, PAUL CLARK and FRANK TATE, (hereinafter “Captain’s
`
`Lookout Defendants”) by and through their attorneys, HESLIN ROTHENBERG FARLEY &
`
`MESITI P.C. respond to the First Amended Complaint (“Amended Complaint”) herein as
`
`follows:
`
`Introduction
`
`
`
`1.
`
`Plaintiff Mackenzie Architects agreed with a single developer team to design an
`
`upscale project in Cohoes, New York, but the developers did not properly compensate Plaintiff
`
`for the work. Instead, the developers sold Plaintiff's designs to third parties, then enabled and
`
`encouraged them to infringe Plaintiff's copyrights.
`
`
`
`Answer:
`
`Deny.
`
`{H0526597.6}
`
`
`1
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 2 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`2.
`
`Mackenzie Architects, through its principal, Steve Mackenzie, agreed with
`
`Defendants Victor Gush ("Gush"), FGR Associates, LLC ("FGR"), and VLG Real Estate
`
`Developments, LLC ("VLG") for Mackenzie Architects to create the designs for a new exclusive
`
`residential development project in Cohoes, New York, called Captain's Lookout. It was
`
`understood and agreed that Mackenzie Architects would retain its copyright in the designs and
`
`that FGR only would have a non-exclusive, non-transferable license solely to build this project.
`
`However, FGR did not fulfill its obligations under the contract, and did not build Captain's
`
`Lookout.
`
`
`
`
`
`Answer:
`
`Deny.
`
`3.
`
`Instead, after abandoning the agreement under the pretense that the project could
`
`not be financed, Mr. Gush sold the rights to the real property, along with the completed designs
`
`and accompanying technical drawings, for which he owned neither the rights nor the right to
`
`license or assign to others. These designs were sold to persons that Mr. Mackenzie had neither
`
`met, worked with, nor contracted with. Instead of originating their own design, these developers
`
`and architects created and built a residential development based almost entirely on the
`
`Mackenzie Architects design. At some point between Mr. Gush's unauthorized sale of the
`
`designs and the Defendants' deposit of the infringing designs with the City of Cohoes Building
`
`and Planning Department, all of Mackenzie Architects' and Mr. Mackenzie's personally
`
`identifying information was removed from the designs. The result is a multi-million dollar real
`
`estate project for which Defendants used the unique aesthetic of Plaintiff's architectural design as
`
`a prime selling point. Many parties profited handsomely from Mackenzie Architects' designs,
`
`although Mackenzie Architects never licensed these works to any of them. Yet, Mackenzie
`
`{H0526597.6}
`
`
`2
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 3 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`Architects has received neither compensation nor attribution of any kind from these parties for
`
`this work.
`
`
`
`
`
`Answer:
`
`Deny.
`
`4.
`
`By reproducing, distributing, displaying, and building Mackenzie Architects'
`
`copyrighted designs, each of the Defendants violated Plaintiff's exclusive rights under the United
`
`States Copyright Act as amended by the Architectural Work Copyright Protection Act. The
`
`Defendants are liable for damages under the Copyright Act, including Plaintiff's lost architectural
`
`fees for the project, Plaintiff's lost good will and business opportunities, profits the Defendants
`
`realized from their infringement of Plaintiff's architectural design, and statutory damages. Also,
`
`by removing Plaintiff's personally identifying copyright information and replacing it with falsely
`
`identifying information, Defendants violated 17 U.S.C. § 1202(a) and (b), and thus Plaintiff is
`
`entitled to statutory damages under 17 U.S.C. § 1202(c).
`
`
`
`
`
`Answer:
`
`Deny.
`
`The Parties
`
`5.
`
`Plaintiff Mackenzie Architects, P.C. ("Plaintiff') or ("Mackenzie Architects") is
`
`an architectural firm. It is a professional corporation licensed by the state of Vermont, with a
`
`principal place of business in Vermont. Its principal architect and shareholder is Steve
`
`Mackenzie.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 5 of the Amended Complaint.
`
`
`
`6.
`
`Defendant VLG Real Estate Developers, LLC ("VLG") is a New York State
`
`professional limited liability corporation, with a principal place of business in Castleton-on-
`
`Hudson, New York.
`
`{H0526597.6}
`
`
`3
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 4 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 6 of the Amended Complaint.
`
`
`
`7.
`
`Defendant Victor Gush is a natural person who, upon information and belief,
`
`resides in Albany, New York and is a controlling member of VLG.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 7 of the Amended Complaint.
`
`
`
`8.
`
`Defendant FGR Associates, LLC ("FGR") is a New York limited liability
`
`company with a principal place of business at 1698 Central Avenue, Albany, New York.
`
`
`
`Answer:
`
`Admit that Defendant FGR Associates, LLC is an inactive limited liability
`
`company that dissolved in 2014 and previously had a principal place of business in Albany, New
`
`York; deny the remaining allegations contained in Paragraph 8 of the Amended Complaint.
`
`
`
`9.
`
`Defendant Captain's Lookout Development, LLC is a New York State limited
`
`liability company with a principal place of business at 1698 Central Avenue, Albany, New York.
`
`
`
`
`
`Answer:
`
`Admit.
`
`10.
`
`Defendant Clark Realty, LLC ("Clark Realty") is a New York State limited
`
`liability company, with a principal place of business in Colonie, NY.
`
`
`
`
`
`Answer:
`
`Admit.
`
`11.
`
`Defendant Paul Clark is a natural person who, upon information and belief,
`
`resides in Albany, New York. He is a controlling member of Clark Realty, and the CEO of
`
`Captain's Lookout Development, LLC.
`
`
`
`Answer:
`
`Admit that Paul Clark is a natural person who resides in Albany, New
`
`York and is a controlling member of Clark Realty, LLC and a Manager of Captain’s Lookout
`
`{H0526597.6}
`
`
`4
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 5 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`Development, LLC; deny the remaining allegations contained in Paragraph 14 of the Amended
`
`Complaint.
`
`
`
`12.
`
`Defendant Design Logic Architects P.C. ("Design Logic") is a New York State
`
`professional corporation with a principal place of business at 3 Winners Circle, Albany, New
`
`York. Design Logic is the Architect of Record registered with the City of Cohoes Building and
`
`Planning Department for Captain's Lookout Apartments.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 12 of the Amended Complaint.
`
`
`
`13.
`
`Robert Bucher is a natural person who, upon information and belief, resides in
`
`Albany, New York. He is the principal architect at Design Logic.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 13 of the Amended Complaint.
`
`
`
`14.
`
`Frank Tate is a natural person who, upon information and belief, resides in
`
`Albany, New York and is a member of Captain's Lookout Development, LLC, and of FGR.
`
`
`
`Answer:
`
`Admit that Defendant Frank Tate is a natural person who resides in
`
`Albany, New York; deny the remaining allegations contained in Paragraph 14 of the Amended
`
`Complaint.
`
`Jurisdiction and Venue
`
`
`
`15.
`
`This is an action for copyright infringement under the Copyright Act of 1976, 17
`
`U.S.C. §§ 101 et seq. (the "Copyright Act"), as amended by the Architectural Works Copyright
`
`Protection Act, Pub. L. No. 101-650, §§ 701-706, 5133-34 (1990) (as codified in sections of 17
`
`U.S.C.), and for false copyright management information and removal of copyright management
`
`information under 17 U.S.C. § 1202.
`
`{H0526597.6}
`
`
`5
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 6 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`
`
`Answer:
`
`Admit.
`
`16.
`
`This Court has subject matter jurisdiction over these federal claims under 28
`
`U.S.C. §§ 1331 and 1338, as the claims are federal questions under the Copyright Act.
`
`
`
`
`
`Answer:
`
`Admit.
`
`17.
`
`For the claims brought under the laws of New York State, this Court has
`
`supplemental jurisdiction under 28 U.S.C. § 1367.
`
`
`
`
`
`Answer:
`
`Admit.
`
`18. Moreover, this Court has diversity jurisdiction over the New York State law
`
`claims under 28 U.S.C. § 1332, as sole plaintiff Mackenzie Architects is domiciled in Vermont
`
`and the defendant parties all reside in New York State. The amount in controversy of the state
`
`law claims exceed $75,000.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`amount in controversy of the state law claims. Admit the remaining allegations contained in
`
`Paragraph 18 of the Amended Complaint.
`
`
`
`19.
`
`This Court has personal jurisdiction over each of the Defendants. Each of the
`
`Defendants reside in the territorial confines of the Northern District of New York ("N.D.N.Y."),
`
`or, in the case of the corporate Defendants, has its principal place of business within the
`
`territorial confines of the N.D.N.Y. Moreover, each Defendant has submitted to jurisdiction in
`
`the N.D.N.Y. through the actions alleged herein.
`
`
`
`
`
`Answer:
`
`Admit.
`
`20.
`
`Venue is proper in the N.D.N.Y. under 28 U.S.C. §§ 1391(b) and 1400(a)
`
`because the Defendants reside and/or conduct business in this judicial district and a substantial
`
`part of the events giving rise to the claims occurred in this judicial district.
`
`{H0526597.6}
`
`
`6
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 7 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`
`
`Answer:
`
`Admit.
`
`Facts
`
`21. Mackenzie Architects is an architectural firm based in Burlington, Vermont,
`
`known for its creative design approaches to multi-family housing. Founded in 2001, Mackenzie
`
`Architects combines efficient project management with innovative solutions to create functional,
`
`unique designs for its clients.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 21 of the Amended Complaint.
`
`
`
`22. Mackenzie Architects' focus on multi-family and senior housing projects lends its
`
`team a particular strength and depth of experience in this area. Since 2001, Mackenzie Architects
`
`has worked on nearly one hundred senior and multi-family residential projects, ranging in size
`
`from sixteen to 800 units per building.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 22 of the Amended Complaint.
`
`
`
`23.
`
`Stephen Mackenzie is the founder and principal of Mackenzie Architects
`
`(Mackenzie Architects and Mr. Mackenzie are collectively referred to as "Mackenzie"). He has
`
`over forty years of experience as an architect and has dedicated the last thirty years to senior and
`
`multi-family housing. Mr. Mackenzie, through Mackenzie Architects and elsewhere, has worked
`
`on over 200 senior and multi-family housing projects across the country and in Canada. He is a
`
`member of the American Institute of Architecture, and certified by the National Council of
`
`Architectural Registration Boards.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 23 of the Amended Complaint.
`
`{H0526597.6}
`
`
`7
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 8 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`24.
`
`VLG, FGR, and Mr. Gush (collectively, the "Gush Defendants") retained
`
`Mackenzie Architects as a consultant to design a brand new and unique design for a project
`
`called "Captain's Lookout," a multi-family residential building with related parking and a
`
`clubhouse and pool for resident use on about 6.4 acres between Delaware Avenue and the
`
`Hudson River in Cohoes, New York. Mackenzie discussed with the Gush Defendants that the
`
`aesthetic should maximize waterfront views in all units.
`
`
`
`Answer:
`
`Admit that Mackenzie Architects prepared preliminary drawings for a
`
`project called “Captain’s Lookout” and deny knowledge or information sufficient to form a
`
`belief as to the remaining allegations contained in Paragraph 24 of the Amended Complaint.
`
`
`
`25.
`
`The parties understood and agreed that any designs created by Mackenzie
`
`Architects would be used on a non-exclusive basis by the Gush Defendants only for Captain's
`
`Lookout. The parties never agreed or even contemplated that the Gush Defendants' non-
`
`exclusive license to use the designs was transferable or assignable.
`
`
`
`
`
`Answer:
`
`Deny.
`
`26.
`
`In a document titled Agreement to Proceed dated December 31, 2007, the parties
`
`memorialized their Agreement that Mackenzie Architects would retain its copyrights, and
`
`provided that it was a temporary short form agreement pending a subsequent “AIA” contract.
`
`(Exhibit H).
`
`
`
`
`
`Answer:
`
`Deny.
`
`27.
`
`The parties exchanged the AIA agreement, (Exhibit A), to supersede an earlier
`
`executed agreement to proceed. The contract’s written terms confirm the prior understanding of
`
`Mr. Gush and Mackenzie Architects: that Mackenzie Architects retained all copyrights and that
`
`FGR was granted only a non-exclusive, non-assignable license in exchange for payment in full.
`
`{H0526597.6}
`
`
`8
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 9 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`The agreement stated that if the owner failed to fulfill its obligations under the contract, it would
`
`be considered substantial nonperformance of the contract and there would be no license. (Exhibit
`
`A).
`
`
`
`
`
`Answer:
`
`Deny.
`
`28. Mackenzie substantially completed the tasks under the contract, providing an
`
`original set of architectural designs and technical drawings to the Gush Defendants on or about
`
`March or April 2009 (collectively, the "Designs"). (Exhibit B)
`
`
`
`
`
`Answer:
`
`Deny.
`
`29.
`
`The Designs featured unique and creative original elements, individually and as a
`
`whole, all designed by Mackenzie. The designs prominently displayed the name and address of
`
`Mackenzie Architects as the Architect and copyright owner.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 29 of the Amended Complaint.
`
`
`
`30.
`
`Upon information and belief, Mr. Gush failed in his initial attempts to obtain
`
`financing for the project. VLG is still an active company registered with the New York
`
`Department of State as of June 26, 2015. FGR is an inactive company registered with the New
`
`York Department of State as of June 26, 2015. Although Mackenzie had substantially performed
`
`and provided the copyrighted designs, the Gush Defendants did not satisfy the payment
`
`obligations, leaving a balance remaining.
`
`
`
`Answer:
`
`Admit that Defendant FGR Associates, LLC is an inactive company in
`
`New York State; deny knowledge or information sufficient to form a belief as to the remaining
`
`allegations contained in Paragraph 30 of the Amended Complaint.
`
`{H0526597.6}
`
`
`9
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 10 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`31. Mr. Gush later parted ways with FGR, but he and FGR decided to revive the
`
`project at the expense of Mackenzie. Without any notice to Mackenzie, without Mackenzie's
`
`authorization or permission, and without any compensation or attribution to Mr. Mackenzie or
`
`Mackenzie Architects, Mr. Gush sold the project site, along with the Designs, to Clark Realty.
`
`Upon information and belief, Mr. Clark agreed to purchase the plans on behalf of Clark Realty.
`
`
`
`Answer:
`
`Deny the allegations as contained in Paragraph 31 of the Amended
`
`Complaint, except to admit that Defendants Gush and FGR parted ways.
`
`
`
`32.
`
`Clark Realty then contracted with other parties, including Captain's Lookout
`
`Development, LLC, to build Captains Lookout. Mackenzie's copyrighted architectural designs
`
`and technical drawings were provided to other developers and architects, with, upon information
`
`and belief, all of Mackenzie's personally identifying information removed.
`
`
`
`
`
`Answer:
`
`Deny.
`
`33.
`
`The records for the Building and Planning Department of the City of Cohoes, NY
`
`("BPD") reflect that designs for Captain's Lookout were deposited on or around September 23,
`
`2013. The BPD record is in the name of Design Logic, with a copyright notice attributable to
`
`Design Logic only. (Exhibit C)
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`records of the Building and Planning Department of the City of Cohoes; admit that Plaintiff has
`
`attached Exhibit C to the Amended Complaint, and respectfully refer the Court to Exhibit C for
`
`the true content thereof.
`
`
`
`34.
`
`Although the designs submitted to the BPD are nearly identical to Mackenzie's
`
`Designs, none of Mackenzie's personally identifying information appears on the submitted
`
`designs.
`
`{H0526597.6}
`
`
`10
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 11 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`
`
`Answer:
`
`Deny.
`
`35.
`
`Having learned that his copyrighted architectural designs and technical drawings
`
`were misappropriated by others, Mackenzie Architects promptly applied to register the copyright
`
`with the United States Copyright Office.
`
`
`
`
`
`Answer:
`
`Deny.
`
`36.
`
`The overall look and feel of the Captain's Lookout design is nearly identical to
`
`Mackenzie's Design. There are only minimal differences in the final designs.
`
`
`
`
`
`Answer:
`
`Deny.
`
`37.
`
`Upon information and belief, Captain's Lookout first broke ground in or around
`
`Fall 2013, and spaces have been advertised to the public as early as June 18, 2013.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`remaining allegations contained in Paragraph 37 of the Amended Complaint.
`
`
`
`38.
`
`Clark Realty's Facebook page touts Captain's Lookout and its unique design. It
`
`depicts a ribbon cutting ceremony held on April 21, 2015, joined by Frank Tate, Paul Clark, Joe
`
`Clark, Shereen Tate, and other partners and members of the defendant entities. (Exhibit D)
`
`
`
`Answer:
`
`Admit that Plaintiff has attached Exhibit D to the Amended Complaint;
`
`and respectfully refer the Court to Exhibit D for the true content thereof; deny all remaining
`
`allegations as contained in Paragraph 38 of the Amended Complaint.
`
`
`
`39.
`
`Images of the infringing designs are depicted on the Captain's Lookout website.
`
`All of Mackenzie's personally identifying information is excluded. (Exhibit E)
`
`
`
`Answer:
`
`Admit that Plaintiff has attached Exhibit E to the Amended Complaint;
`
`and respectfully refer the Court to Exhibit E for the true content thereof; deny all remaining
`
`allegations as contained in Paragraph 39 of the Amended Complaint.
`
`{H0526597.6}
`
`
`11
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 12 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`40.
`
`Each of the Defendants has realized a substantial profit directly from the unique
`
`design and its aesthetic appeal.
`
`
`
`
`
`
`
`Answer:
`
`Deny.
`
`41.
`
`Upon information and belief, Design Logic was paid for their infringing design.
`
`Answer:
`
`Admit that Defendant Design Logic was paid for work performed and
`
`deny all remaining allegations contained in Paragraph 41 of the Amended Complaint.
`
`
`
`
`
`
`
`42.
`
`None of the Defendants compensated Mackenzie for use of the Designs.
`
`Answer:
`
`Deny.
`
`43.
`
`An attorney for Steve Mackenzie sent letters ("Demand Letters") to Defendants
`
`Clark and Captain's Lookout Development, and to Mr. Bucher and Design Logic, on or around
`
`November 2, 2014, notifying them that they had unlawfully copied Mackenzie's Designs.
`
`
`
`Answer:
`
`Admit that a letter was sent by an attorney for Stephen Mackenzie in or
`
`around November or December 2014 and deny knowledge or information sufficient to form a
`
`belief as to the remaining allegations contained in Paragraph 43 of the Amended Complaint.
`
`
`
`44. Mr. Clark responded to the letter by contacting Mackenzie's attorney and
`
`explaining that he bought the designs from Mr. Gush and that there was no name on the
`
`drawings.
`
`
`
`Answer:
`
`Admit that Mr. Clark responded to the attorney and deny all remaining
`
`allegations contained in Paragraph 44 of the Amended Complaint.
`
`
`
`
`
`45.
`
`No other party responded to the Demand Letters.
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 45 of the Amended Complaint.
`
`{H0526597.6}
`
`
`12
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 13 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`46.
`
`The Defendants tout the unique aesthetic of Captain's Lookout as a major factor in
`
`its appeal. The Captain's Lookout website and Facebook page include layouts and 3D mockups,
`
`and text promoting the value of the building's unique design. Upon information and belief,
`
`Defendants used a collateral design for the promotional website, after removing Mackenzie's
`
`personally identifying information.
`
`
`
`
`
`Answer:
`
`Deny.
`
`47.
`
`Upon information and belief, the value of Captain's Lookout is at least
`
`$9,000,000.
`
`
`
`
`
`Answer:
`
`Deny.
`
`48.
`
`Upon information and belief, the Defendants are creating more buildings at
`
`Captain's Lookout, based entirely on Plaintiffs' designs.
`
`
`
`
`
`Answer:
`
`Deny.
`
`49.
`
`For the purposes of the Copyright Act, Mackenzie Architects performed as an
`
`independent contractor to VLG and FGR.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 49 of the Amended Complaint.
`
`
`
`50. Mackenzie Architects is the owner of valid Copyright Registrations in the
`
`Architectural Design Construction Documents, registration number VAu001210869, and the
`
`Technical Drawing, registration number VAu001210868 (Exhibits F and G).
`
`13
`
`
`
`Answer:
`
`Deny.
`
`
`
`
`
`
`
`{H0526597.6}
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 14 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`51.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`First Cause of Action
`
`herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 51; however to the
`
`extent a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`52.
`
`Plaintiff is the exclusive owner of all rights, title, and interest in and to the
`
`Designs and their copyrights.
`
`
`
`Answer:
`
`Deny knowledge or information sufficient to form a belief as to the
`
`allegations contained in Paragraph 52 of the Amended Complaint.
`
`
`
`
`
`
`
`53.
`
`The Defendants had access to and possession of Mackenzie's Designs.
`
`Answer:
`
`Deny.
`
`54. While having such access, the Defendants, without authorization from Plaintiff,
`
`with knowledge that such authorization was required, and with good reason to believe that no
`
`such authorization existed, copied Plaintiff's copyrighted Designs into: (1) the drawings filed
`
`with the City of Cohoes; and (2) the Captain's Lookout project.
`
`
`
`
`
`Answer:
`
`Deny.
`
`55.
`
`The Defendants' copying of Plaintiff's copyrighted Design constitutes copyright
`
`infringement because the filed drawings and finished project are nearly identical to Plaintiff's
`
`design.
`
`
`
`Answer:
`
`Deny.
`
`{H0526597.6}
`
`
`14
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 15 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`56.
`
`As a result, Plaintiff is entitled to an award of actual damages suffered, including
`
`loss of good will and lost business opportunities, in addition to any profits realized by the
`
`Defendants from the unauthorized use of Mackenzie's Designs, under 17 U.S.C. § 504(b).
`
`
`
`
`
`Answer:
`
`Deny.
`
`57.
`
`Plaintiff is entitled to statutory damages under 17 U.S.C. § 504(c), and full costs
`
`and attorney's fees under 17 U.S.C. § 505.
`
`
`
`
`
`Answer:
`
`Deny.
`
`58.
`
`Furthermore, Plaintiff is entitled to a permanent injunction to prevent further
`
`infringement by these Defendants and further irreparable harm to himself.
`
`Answer:
`
`Deny.
`
`Second Cause of Action
`
`59.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`
`
`
`
`herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 59; however to the
`
`extent a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`60.
`
`Plaintiff is the exclusive owner of all rights, title, and interest in and to the
`
`Designs and their copyrights.
`
`
`
`Answer:
`
`Submit that the allegations in Paragraph 60 state a legal conclusion to
`
`which no response is required. However, to the extent a response is required, deny the allegations
`
`in Paragraph 60.
`
`61.
`
`The Defendants had access to and possession of Mackenzie's Designs.
`
`Answer:
`
`Deny.
`
`15
`
`
`
`
`
`
`
`{H0526597.6}
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 16 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`62. While having such access and possession, the Defendants, without authorization
`
`from Plaintiff, with knowledge that such authorization was required, and with good reason to
`
`believe that no such authorization existed, copied Plaintiff's copyrighted Design into: (1) the
`
`drawings filed with the City of Cohoes; and (2) the Captain's Lookout project.
`
`
`
`
`
`Answer:
`
`Deny.
`
`63.
`
`The Defendants' copying of Plaintiff's copyrighted Designs constitutes copyright
`
`infringement because the filed drawings and finished project are nearly identical to Plaintiff's
`
`designs.
`
`
`
`
`
`Answer:
`
`Deny.
`
`64.
`
`As a result, Plaintiff is entitled to an award of actual damages suffered, including
`
`loss of good will and lost business opportunities, in addition to any profits realized by the
`
`Defendants from the unauthorized use of Mackenzie's Designs, under 17 U.S.C. §
`
`504(b).
`
`
`
`
`
`Answer:
`
`Deny.
`
`65.
`
`Plaintiff is entitled to statutory damages under 17 U.S.C. § 504(c) and full costs
`
`and attorney's fees under 17 U.S.C. § 505.
`
`
`
`
`
`Answer:
`
`Deny.
`
`66.
`
`Furthermore, Plaintiff is entitled to a permanent injunction to prevent further
`
`infringement by these Defendants and further irreparable harm to himself.
`
`Answer:
`
`Deny.
`
`Third Cause of Action
`
`67.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`16
`
`
`
`
`
`
`
`herein.
`
`{H0526597.6}
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 17 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 67; however, to the
`
`extent a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`68.
`
`The Defendants: (1) retained the right and ability to supervise and control the
`
`infringing activity as set forth in Count I, and (2) received a direct financial benefit from such
`
`infringing activity.
`
`Answer:
`
`Deny.
`
`69.
`
`Such activity constitutes vicarious copyright infringement under the Copyright
`
`Answer:
`
`Deny.
`
`Fourth Cause of Action
`
`70.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`
`
`
`
`Act.
`
`
`
`
`
`herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 70; however, to the
`
`extent that a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`71.
`
`The Defendants: (1) retained the right and ability to supervise and control the
`
`infringing activity as set forth in Count I, and (2) received a direct financial benefit from such
`
`infringing activity.
`
`Answer:
`
`Deny.
`
`72.
`
`Such activity constitutes vicarious copyright infringement under the Copyright
`
`
`
`
`
`Act.
`
`
`
`Answer:
`
`Deny.
`
`{H0526597.6}
`
`
`17
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 18 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`73.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`Fifth Cause of Action
`
`herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 73; however, to the
`
`extent a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`74.
`
`The Defendants: (1) retained the right and ability to supervise and control the
`
`infringing activity as set forth in Count I, and (2) received a direct financial benefit from such
`
`infringing activity.
`
`Answer:
`
`Deny.
`
`75.
`
`Such activity constitutes vicarious copyright infringement under the Copyright
`
`Answer:
`
`Deny.
`
`Sixth Cause of Action
`
`76.
`
`Plaintiff incorporates the above paragraphs by reference, as though fully set forth
`
`
`
`
`
`Act.
`
`
`
`
`
`herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 76; however, to the
`
`extent that a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`77.
`
`These Defendants: (1) had knowledge of the infringing activity as set forth in
`
`Count I; and (2) materially contributed to the infringing activity.
`
`
`
`Answer:
`
`Deny.
`
`{H0526597.6}
`
`
`18
`
`
`
`

`

`INDEX NO. 653437/2016
`FILED: NEW YORK COUNTY CLERK 02/23/2017 05:14 PM
`Case 1:15-cv-01105-TJM-DJS Document 45 Filed 03/11/16 Page 19 of 42
`NYSCEF DOC. NO. 75
`RECEIVED NYSCEF: 02/23/2017
`
`
`
`
`
`78.
`
`Such activity constitutes contributory copyright infringement under the Copyright
`
`Act.
`
`
`
`
`
`Answer:
`
`Deny.
`
`Seventh Cause of Action
`
`79.
`
`Plaintiff incorporates paragraphs 1 through 42 by reference, as though fully set
`
`forth herein.
`
`
`
`Answer:
`
`Submit that no response is required as to Paragraph 79; however, to the
`
`extent that a response is required, Defendants incorporate their above responses by reference, as
`
`though fully set forth herein.
`
`
`
`80.
`
`These Defendants: (1) had knowledge of the infringing activity as set forth in
`
`Count I; and (2) ma

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