U.S. District Court, Western District of N.Y. Case Summaries: August

Daily Record (Rochester, NY), Aug 22, 2008

U.S. District Court, Western District of New York

Trademark Infringement

Statutory Damages

Multisorb Technologies, Inc. v. Impak Corp.

06-CV-0141

Judge Curtin

Background: This case was brought in March 2006 by plaintiff Multisorb Technologies, Inc., against the Impak Corp. pursuant to the Anticybersquatting Consumer Protection Act. The complaint sought injunctive relief and damages based on Impak's registration and use of the Web site domain name "www.multisorbtechnologies.com." Plaintiff promptly moved for a preliminary injunction, obtained entry of default by the Clerk of the Court, and moved for default judgment when defendants neither answered the complaint nor responded to the injunction motion. The motion seeks statutory damages and an award of attorney's fees under the ACPA, which provides that a successful plaintiff may recover, instead of actual damages and profits, an award of statutory damages in the amount of not less than $1,000 and not more than $100,000 per domain name. Plaintiff requests the statutory maximum of $100,000, as well as over $22,000 in attorney's fees, based on the court's finding in an April 2006 order that defendants acted in bad faith in adopting and using the infringing domain name.

Ruling: The court finds that an award of the minimum statutory damages, $1,000, "fully serves the ends of ACPA in this case." As there is no compelling evidence to suggest that defendants acted with any malice or intent to defraud, an award of statutory attorney's fees is not warranted under the circumstances. The case is closed.

Michael R. McGee, of McGee & Gelman, for the plaintiff and Howard E. Berger, of Duke, Holzman, Photiadis & Gresens, LLP, for the defendant

Webster Town Court

Purchase and Sale Agreement

Spinney v. Mirabella

08060578

Judge Thomas J. DiSalvo

Background: 1. Did the inaccuracy of the Property Condition Disclosure Statement provide the purchaser with a basis for a cause of action?

2. Did the Buyers Notice of Conditional Removal of Property Condition Contingencies abrogate the "as is" provision of the Purchase and Sale Contract?

3. Did the Merger Clause of the Purchase and Sale Contract extinguish any right of the plaintiff to any damages based on the failure of the defendant to update the electric system to 150 amperes?

Ruling: Issue 1, no; Issue 2, yes; Issue 3, no.

The parties entered into a purchase and sale agreement for residential real estate located at 3 Ellison Street in the City of Rochester in October 2007. The closing took place on Nov. 30, 2007. Subsequent to the closing the defendant seller relocated to the Town of Webster. The plaintiff claims that the agreement contained a provision for a 150 ampere electric system. Subsequent to the execution of the contract the defendant had allegedly made modifications to the electric system, wherein the 150 ampere existing main circuit panel box was replaced with a 100 ampere main service panel box, so that it matched the 100 ampere main service line.

Item 29 of the Property Condition Disclosure Statement, relative to the issue of the amperage of the electrical service, indicated that it was 150 amps. Following the execution of the Buyer's Notice of Conditional Removal of Property Condition Contingencies, the seller agreed to upgrade the electric service from the utility pole to the house. However, there was no evidence presented indicating that the seller agreed to these terms.

At closing the parties had agreed that the buyer's attorney would withhold $500 in escrow to cover the defendant's purported upgrade of the main electric service line. Subsequent to the closing the plaintiff discovered that the electric system in the residence in question, consisted of a 100 ampere circuit panel box and a 100 ampere service line from the utility pole to the home. The plaintiff maintains in her action that she contracted for a 150 ampere system and is suing for the cost to upgrade the system. The defendant filed a counterclaim alleging that she is entitled to the $500.00 held in escrow since she made modifications to the system so that the capacity of the main circuit panel box and the main electric line would be the same, namely 100 amperes.

In the court's findings of fact, it is stated that the defendant did not upgrade the service line but instead replaced the existing 150 ampere main service circuit panel box with a 100 ampere main service circuit panel box, so that same matched the 100 ampere main service line running from the house to the utility pole.

As to the issue of whether the plaintiff has a cause of action based upon the disclosure statement, the court found that the plaintiff cannot rely on the representations relative to the electrical system as set out in the Property Condition Disclosure Statement for purposes of seeking relief because Real Property Law Section 462 provides no specific right of action to the purchaser for the breach of the disclosure form.

On the issue of the "as is" provision of the contract, the court found that because the agreement was not complete, clear and unambiguous on its face, the parol evidence rule did not bar extrinsic proof as to the entire purported agreement. The court found that the parol evidence, consisting of the buyer's attorney's approval letter and the testimony of the parties in court, indicated that both parties initially agreed that the 100 ampere main electric service line should be replaced by a 150 ampere service line.