Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 1 of 13
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`13-CV-5857 (JPO)
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`OPINION AND ORDER
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`-v-
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`LELANIE FOSTER,
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`X
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`MAY LEE, ERICKA RODRIGUEZ, and
`LASHPIA CORPORATION,
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`Defendants.
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`J. PAUL OETKEN, District Judge:
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`Plaintiff Lelanie Foster brings this action against May Lee, Ericka Rodriguez, and
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`Lashpia Corporation (“Lashpia”), alleging copyright infringement. 17 U.S.C. § 101, et seq.
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`Defendants move for partial summary judgment on the issue of Foster’s entitlement to statutory
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`damages, 17 U.S.C. § 504(c), and attorney’s fees and costs, 17 U.S.C. § 505, and for partial
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`summary judgment that Lee and Rodriguez are not personally liable for infringement. Foster
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`moves for partial summary judgment on the issue of Defendants’ liability for infringement. For
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`the reasons that follow, Foster’s motion is granted in part and Defendants’ motion is denied.
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`I.
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`Background
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`Foster is a freelance photographer. (Dkt. No. 25, Amended Complaint ¶ 1.)1 Lashpia,
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`doing business as JJ Eyelashes, produces silk eyelash extensions and owns several salons at
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`which customers can purchase the eyelashes and have them customized and professionally
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`applied. (Dkt No. 33, Declaration of May Lee ¶ 4 [“Lee Decl.”].) In connection with an
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`advertising campaign, Lashpia hired Foster to produce a photograph of a model wearing JJ
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`Eyelashes.
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`1 All record citations are to the Amended Complaint unless specified otherwise.
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`1
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 2 of 13
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`On November 27, 2012, and December 4, 2012, Foster conducted a photo shoot. (Dkt.
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`No. 43, Declaration of Lelanie Foster ¶ 15 [“Foster Decl.”]; Lee Decl. ¶ 7.) According to Foster,
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`at first the “shoots with JJ Eyelashes were solely for the purpose of using prints in the physical
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`premises of the JJ Eyelashes salons, a promotional calendar, or on its web site.” (Foster Decl. ¶
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`13.) At one of the shoots, though, Foster “verbally agreed to the use of a single retouched
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`version of one of [her] photographs . . . in Allure magazine.” (Id. ¶¶ 23–24.) Her
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`“understanding was that the advertisement would be small in scale.” (Id. ¶ 22.) According to
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`Lee, Foster “agreed that the photograph would be the property of Lashpia Corporation with the
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`understanding that Lashpia intended to use to the photograph for its marketing campaign.” (Lee
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`Decl. ¶ 10.) The parties’ agreement was not reduced to writing.
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`The photograph appeared in the March 2013 Manhattan subscriber edition of Allure
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`magazine. (Foster Decl. ¶ 26.) When she saw the magazine, Foster became concerned that “the
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`scale and scope of the Allure magazine advertisement was much broader than what Ms.
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`Rodriguez [then an employee of Lashpia] had initially told me.” (Id. ¶ 28.) Around the same
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`time, Foster discovered that the photograph “appeared on the PR Newswire digital billboard in
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`Times Square.” (Id. ¶ 29.) She reached out to Rodriguez to express her concern. (Id. ¶ 28.)
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`After a series of phone conversations made clear that Lashpia would not pay Foster any
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`additional fees for its use of the photograph, Foster registered a copyright in the photograph on
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`May 9, 2013. (Id. ¶¶ 31, 33.) She filed this action shortly thereafter. (Dkt. No. 1, Complaint.)
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`II.
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`Discussion
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`In their Answer to the Amended Complaint, Defendants deny (or deny knowledge of) all
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`the allegations in the Amended Complaint, and interpose only two affirmative defenses. (Dkt.
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`No. 27, Answer [“Answer”].) First, they plead the affirmative defense that “[t]he Foster
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`photograph was . . . a work for hire.” (Id., at 1.) Second, they plead the affirmative defense that
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`2
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 3 of 13
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`“[t]he Foster photograph is a joint work.” (Id. at 2.) Foster moves for summary judgment on the
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`ground that both defenses fail as a matter of law. In their Reply Memorandum of Law in
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`response to Foster’s motion, Defendants raise—for the first time—the affirmative defense that
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`they had an implied license for their use of Foster’s photograph. (Dkt. No. 50, Defendants’
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`Reply Memorandum of Law, at 2 [“Defendants’ Reply”].) Foster contends that this defense has
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`been waived and that, regardless, it fails as a matter of law. (Dkt. No. 59, Foster’s Reply
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`Memorandum of Law, at 3.)
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`Defendants move for partial summary judgment on the ground that Foster is not entitled
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`to statutory damages because the photograph was first published on December 27 or 28, 2012, on
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`their website, www.jjeyelash.com/about-us. (Dkt. No. 34, Defendants’ Memorandum of Law in
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`Support of Their Motion for Partial Summary Judgment, at 2 [“Defendants’ Memorandum”].)
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`They also move for partial summary judgment on the ground that there is no evidence with
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`respect to Lee’s and Rodriguez’s personal liability.
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`A.
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`Legal Standard
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`Summary judgment is appropriate when “there is no genuine dispute as to any material
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`fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. A fact is
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`material if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is genuine if, considering the record as a
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`whole, a rational jury could find in favor of the non-moving party, Matsushita Elec. Indus. Co. v.
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`Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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`The initial burden of a movant on summary judgment is to provide evidence on each
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`element of her claim or defense illustrating her entitlement to relief. Vt. Teddy Bear Co. v. 1–
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`800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). If the movant meets this initial burden of
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`production, the non-moving party must then identify specific facts demonstrating a genuine issue
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 4 of 13
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`for trial. Fed. R. Civ. P. 56(f). The court views all evidence “in the light most favorable to the
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`nonmoving party and draw[s] all reasonable inferences in its favor.” Anderson, 447 U.S. at 250–
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`51. A motion for summary judgment may be granted only if “no reasonable trier of fact could
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`find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation
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`omitted). But the non-moving party cannot rely upon mere “conclusory statements, conjecture,
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`or speculation” to meet its burden. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)
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`(citing Matsushita, 475 U.S. at 587).
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`B.
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`Foster’s Motion
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`Foster moves for summary judgment on the ground that Defendants’ affirmative defenses
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`fail as a matter of law. Defendants concede that Foster’s photograph is copyrighted and that they
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`infringed that copyright if the photograph is not a joint work, a work for hire, or the subject of an
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`unrestricted license.2
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`1.
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`Joint Work
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`Defendants contend that, because Lee and Rodriguez participated in the photo shoot, the
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`resulting photograph is a “joint work” within the meaning of the Copyright Act. 17 U.S.C. § 101
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`(defining a joint work as “a work prepared by two or more authors with the intention that their
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`contributions be merged into inseparable or interdependent parts of a unitary whole”).
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`Copyright law imposes two requirements for a unitary work—a work that cannot be
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`separated into individual contributions—to qualify as a joint work. First, the authors must
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`“inten[d] . . . that their contributions be merged into a unitary whole.” Childress v. Taylor, 945
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`F.2d 500, 505 (2d Cir. 1991). Second, the contribution of each author must itself be
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`2 Although Defendants’ arguments regarding the personal liability of Lee and Rodriguez are
`treated as responses to Foster’s motion for summary judgment, these arguments are addressed
`below because they were not explicitly offered in connection with Foster’s motion.
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 5 of 13
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`independently eligible for copyright protection. Id. at 507. Foster contends that no reasonable
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`juror could conclude that she, Lee, and Rodriguez intended to be joint authors and that no
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`reasonable juror could conclude that Lee’s and Rodriguez’s contributions were copyrightable.
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`Intent. To qualify as a joint work, the authors must “entertain in their minds the concept
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`of joint authorship.” Id. at 508. “This requirement of mutual intent recognizes that, since
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`coauthors are afforded equal rights in the co-authored work, the ‘equal sharing of rights should
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`be reserved for relationships in which all participants fully intend to be joint authors.’” Thomson
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`v. Larson, 147 F.3d 195, 201 (2d Cir. 1998) (quoting Childress, 945 F.2d at 508).
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`Defendants offer the following evidence of mutual intent. First, Lee and Rodriguez were
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`“present . . . at the photo shoot when Ms. Foster took the subject photograph.” (Dkt. No. 51,
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`Supplemental Declaration of May Lee ¶ 2 [“Supp. Lee Decl.”].) Second, Lashpia “supplied the
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`space where the photo shoot was conducted and retained the model who [sic] Foster
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`photographed.” (Lee Decl. ¶ 8.) Finally, “Ms. Foster collaborated with Ms. Rodriguez to
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`transform the photograph into a JJ Eyelashes advertisement.” (Id. ¶ 12.) “Transform[ing]” the
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`photograph consisted of adding text. (Id. ¶ 13 (“we want . . . longer . . . sexier . . . thicker . . .
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`eyelashes.”) (ellipses in original).)
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`There is no evidence on which a reasonable juror could conclude that the parties intended
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`to be joint authors of the photograph. Indeed, even Lee’s declaration suggests that all parties
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`involved believed that Foster would be the author: she affirmed that “Lashpia Corporation
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`retained Lelanie Foster to conduct a photo shoot . . . .” (Id. ¶ 7 (emphasis added).) Further, the
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`undisputed evidence is that Rodriguez contacted Foster to ask her permission to use the
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`photograph in Allure. (Foster Decl. ¶ 23.) This strongly suggests that Rodriguez regarded
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`Foster as the sole author of the work. In any event, there is no evidence—not even in Lee’s
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`declaration—that any participant in the photo shoot “fully intend[ed]” that Lee, Rodriguez, and
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 6 of 13
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`Foster “be joint authors.” Thomson, 147 F.3d at 201. Apart from their Answer, which states
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`simply that “[t]he Foster photograph is a joint work,” Defendants do not mention this affirmative
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`defense in either of their memoranda of law and do not offer any other papers to defend it. (See
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`generally Defendants’ Memorandum; Defendants’ Reply.) Foster’s motion for summary
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`judgment on this affirmative defense is therefore granted.
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`Independently Copyrightable Contributions. Although Defendants’ affirmative
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`defense of joint authorship fails for lack of intent, it also fails as a matter of law on the
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`independently sufficient ground that there is no dispute of material fact that Lee’s and
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`Rodriguez’s contributions to the photograph were not independently copyrightable. In the
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`context of a photo shoot, “[m]ere selection of the subject matter to be photographed does not
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`create joint authorship.” SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 315
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`(S.D.N.Y. 2000). Apart from the bare contention that Foster and Rodriguez “collaborated” (Lee
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`Decl. ¶ 12) on the advertisement, there is no evidence that Lee and Rodriguez did anything other
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`than “select[] . . . the subject matter to be photographed.” SHL Imaging, 117 F. Supp. 2d at 315.
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`Foster’s motion for summary judgment on the affirmative defense of joint authorship is granted.
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`2. Work for Hire
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`Defendants contend—albeit only in their Answer—that the photograph was a work for
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`hire. Because this affirmative defense was mentioned only in the Answer, Defendants have not
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`offered any specifics as to why they believe this photograph to be a work for hire.
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`“There are two categories of work-for-hire: (1) works created by employees; and (2)
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`works created by independent contractors under special order or commission.” SHL Imaging,
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`117 F. Supp. 2d at 312 (citing 17 U.S.C. § 101). The second category requires a written work-
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`for-hire agreement and does not include photographs. Id. Because the work at issue here is a
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`photograph and because there is no written work-for-hire agreement here, only the first category
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`is possibly applicable. The question, then, is whether a reasonable juror could conclude that
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`Foster was an employee of Lashpia and that the photograph was created within the scope of her
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`employment.
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`Federal courts determine who is an employee and who is an independent contractor using
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`a multi-factor balancing test. Although the Supreme Court has identified thirteen potential
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`factors, see Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750–751 (1989), the
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`Second Circuit has identified five that are particularly important, Aymes v. Bonelli, 980 F.2d 857,
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`861 (2d Cir. 1992). They are “(1) the hiring party’s right to control the manner and means of
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`creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the
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`hired party; and (5) whether the hiring party has the right to assign additional projects to the
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`hired party.” SHL Imaging, 117 F. Supp. 2d at 312–13 (quoting Aymes, 980 F.2d at 861.)
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`Defendants offer no evidence contesting the second, third, fourth, and fifth factors. And
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`the only evidence they offer with respect to the first factor is the bare statement that they
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`“retained” Foster, (Lee Decl. ¶ 7), and that they told her whom to photograph. (See generally
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`id.) But just as “[m]ere selection of the subject matter to be photographed does not create joint
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`authorship,” neither does it create a work for hire. SHL Imaging, 117 F. Supp. 2d at 313 (finding
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`that a photograph was not a work for hire where “[d]efendants d[id] not claim that they
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`instructed plaintiff to use any particular camera, film or equipment.”). Foster’s motion for
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`summary judgment on the affirmative defense of work-for-hire is granted.
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`3.
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`License
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`Finally, Defendants contend that they had an unrestricted license to use the photograph
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`because Foster orally granted them that right.
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`License is an affirmative defense to copyright infringement. E.g., I.A.E., Inc. v. Shaver,
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`74 F.3d 768, 775 (7th Cir. 1996); United States v. Larracuente, 952 F.2d 672, 673–74 (2d Cir.
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 8 of 13
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`1992); Oddo v. Ries, 743 F.2d 630, 634 n.6 (9th Cir. 1984). The affirmative defense of license
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`“must be affirmatively pleaded” in the Answer. Oddo, 743 F.2d at 634 n.6. Failure to plead an
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`affirmative defense ordinarily results in forfeiture3 of that defense. Wood v. Milyard, 132 S. Ct.
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`1826, 1832 (2012). “An affirmative defense, once forfeited, is excluded from the case . . . .” Id.
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`(internal quotation marks and alterations omitted); see also Sellers v. M.C. Floor Crafters, Inc.,
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`842 F.2d 639, 642 (2d Cir. 1988); CHARLES ALAN WRIGHT, ET AL., 5 FED. PRAC. & PROCEDURE §
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`1278 (3d ed. 2013).
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`Defendants did not plead license in their Answer, nor have they sought leave to amend
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`the Answer. They did not mention the affirmative defense in their papers in support of their
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`motion for summary judgment either. Although the Court enjoys the discretion to excuse a
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`defendant’s failure to plead an affirmative defense, Wood, 132 S. Ct. at 1832, excusal is
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`generally unwarranted where plaintiffs have suffered prejudice as a result of the defendant’s
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`negligence and where they lack an adequate opportunity to respond in a timely fashion, e.g.,
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`Cedars-Sinai Medical Ctr. v. Shalala, 177 F.3d 1126, 1128–29 (9th Cir. 1999). Courts excuse
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`the failure to plead affirmative defenses only when they find that the purposes of the rule
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`requiring pleading of an affirmative defense—to give notice to the plaintiff and to give her an
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`opportunity to respond—have been met. E.g., Curry v. City of Syracuse, 316 F.3d 324, 330–31
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`(2d Cir. 2003). Similarly, forfeiture “may not be proper where the defense is raised at the first
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`pragmatically possible time and applying it at that time would not unfairly prejudice the
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`opposing party.” Am. Fed. Grp., Ltd. v. Rothenberg, 136 F.3d 897, 910 (2d Cir. 1998).
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`3 Although Foster contends that Defendants “waived” the defense of license, they actually
`forfeited it. “A waived claim or defense is one that a party has knowingly and intelligently
`relinquished; a forfeited plea is one that a party has merely failed to preserve.” Wood, 132 S. Ct.
`at 1833 n.4 (citing Kontrick v. Ryan, 540 U.S. 443, 458, n.13 (2004); United States v. Olano, 507
`U.S. 725, 733 (1993)).
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 9 of 13
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`None of these exceptions applies here. Defendants have waited until a late stage in the
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`case to mention the defense of license and, as such, prejudice is clear. Defendants waited to raise
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`the issue of license until their reply memorandum of law in support of their own motion for
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`summary judgment on the issue of statutory damages and in opposition to Foster’s motion for
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`summary judgment on the two affirmative defenses Defendants mentioned in the Answer. They
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`have not identified any reason why they could not have raised the defense until this late stage.
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`Foster’s only opportunity to respond to this argument was in her reply memorandum. During
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`discovery—which was ongoing as these motions were being briefed—Foster relied on
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`Defendants’ assertion that their only defenses would be (1) joint work and (2) work-for-hire. As
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`a result, she did not depose Lee or Rodriguez and did not focus on establishing the precise scope
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`of the permission Foster gave Lashpia to use the photograph. Therefore, to allow Defendants’ to
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`raise the defense of license at this stage of the litigation would require reopening discovery.
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` The Court finds that it would result in significant unfairness to allow Defendants to raise
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`the defense of license at this late stage of the litigation. Accordingly, the defense is forfeited.
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`Foster’s motion for summary judgment on the issue of liability for infringement is granted.4
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`B.
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`Defendants’ Motion
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`Defendants move for summary judgment on the issue of statutory damages and attorney’s
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`fees and on the issue of Lee and Rodriguez’s personal liability.
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`4 To the extent that Defendants contend that ownership of the copyright transferred to Lashpia
`because of the conversation at the photo shoot (e.g., Supp. Lee Decl. ¶ 2 (“Ms. Foster agreed
`with me that the resulting photographs would be the property of Lashpia . . . .”)), this argument
`fails because copyright ownership cannot be voluntarily transferred without a writing. 17 U.S.C.
`§ 204(a).
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 10 of 13
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`1.
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`Date of First Publication
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`Defendants move for summary judgment on the ground that Foster is not entitled to
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`statutory damages and attorney’s fees because the photograph was first “published,” within the
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`meaning of copyright law, on December 27 or 28, 2012. (Foster concedes that if this is the first
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`publication date, she would not be eligible for statutory damages or attorney’s fees under 17
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`U.S.C. § 412(2).) Foster contends (1) that Defendants have forfeited this argument because, in
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`an interrogatory response, they identified “February or March of 2013” as the first date of
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`publication (Dkt. No. 42, Ex. 3) and (2) that there is a genuine dispute of material fact as to
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`whether the photograph actually was published in December of 2012.
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`In her initial set of interrogatories, Foster asked Defendants when the photograph was
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`first published. (Id.) Defendants said “February or March of 2013.” (Id.) Now, Defendants
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`contend that the photograph was actually published in December of 2012, when Lashpia posted
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`the photograph on one of its two websites. (Defendants’ Reply at 5–11.)
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`Interrogatory answers may properly limit the scope of facts to be proved at trial or on
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`summary judgment. E.g., WRIGHT, 8B FED. PRAC. & PROC. § 2181. These consequences,
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`though, should flow only where “appropriate.” Id. “[U]nder ordinary circumstances, it is not
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`the[] function [of interrogatories] to limit a party’s proof in the way that pleadings do.”
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`McElroy v. United Air Lines, Inc., 21 F.R.D. 100, 102 (W.D. Mo. 1957).
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`Defendants argue that their initial interrogatory answers should be ignored because they
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`“understood the interrogatory request concerning the first publication of Ms. Foster’s photograph
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`to be an inquiry surrounding its first appearance in Allure magazine (i.e., publication in the
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`physical sense).” (Defendants’ Reply at 10 n.3.) But Foster defined the word “publication” in
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`her interrogatory as “any reproduction, distribution, or display as defined under the Copyright
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`Act including, but not limited to, print, electronic, digital, social media, public billboard, or any
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 11 of 13
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`other exploitation of the work accessible by the public.” (Dkt. No. 42, Ex. 2.) Next, Defendants
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`contend that, because Lee did not sign the interrogatory responses, it is somehow unfair to hold
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`Defendants to their contents. (Defendants’ Reply at 10 n.3.) This argument is without merit.
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`Nonetheless, despite Defendants’ negligence in preparing an appropriate interrogatory response,
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`the Court is persuaded that strictly holding them to their initial response would be too strong a
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`sanction because Foster has had a full and fair opportunity to respond to their arguments.
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`The question, then, is whether there is a genuine dispute of material fact as to when the
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`photograph was first published. Defendants offer Lee’s declaration and a supplemental internet
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`search as evidence that the photograph appeared on one of Lashpia’s websites in December
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`2012. Foster offers evidence from the “Wayback Machine”―a service that archives webpages
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`as they existed at a given time―that the image did not, in fact, appear on the websites until much
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`later. Notwithstanding potential evidentiary problems with the Wayback Machine, it is clear that
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`Foster could present admissible evidence at trial sufficient to raise a genuine dispute of material
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`fact as to when the photograph appeared on the internet. See, e.g., Karén Gazaryan, Authenticity
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`of Archived Websites: The Need to Lower the Evidentiary Hurdle Is Imminent, 39 RUTGERS
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`COMPUTER & TECH. L.J. 216, 229 (2013); Deborah R. Eltgroth, Best Evidence and the Wayback
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`Machine: Toward A Workable Authentication Standard for Archived Internet Evidence, 78
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`FORDHAM L. REV. 181, 184 (2009); Matthew Fagan, “Can You Do A Wayback on That?” the
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`Legal Community’s Use of Cached Web Pages in and Out of Trial, 13 B.U. J. SCI. & TECH. L. 46,
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`56 (2007). Particularly because Foster has presented an affidavit from an employee of Internet
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`Archive—the foundation that operates the Wayback Machine—the Court is persuaded that
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`Foster would be able to present relevant, authentic, non-hearsay evidence in the form of an
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`archived webpage produced by the Wayback Machine. There is a genuine issue of material fact
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 12 of 13
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`as to when the photograph was first published. Summary judgment on this issue is therefore
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`denied.
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`2.
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`Personal Liability
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`Finally, Defendants have requested partial summary judgment on the ground that there is
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`no evidence to support the personal liability of Lee and Rodriguez. Defendants failed to raise
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`this argument in their initial motion for summary judgment. Foster therefore has not had an
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`opportunity to respond to it. As such, insofar as Defendants move for summary judgment in
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`their favor on the ground of personal liability, that motion is forfeited because it was not raised in
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`their memorandum of law in support of the motion. The Court therefore considers Defendants’
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`arguments on this point solely as opposition to Foster’s motion for summary judgment―that is,
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`as contesting Foster’s entitlement to summary judgment on liability as against the two individual
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`defendants.
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`In copyright cases, “[w]hen the right and ability to supervise[] coalesce with an obvious
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`and direct financial interest in the exploitation of copyrighted materials . . . the purposes of
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`copyright law may be best effectuated by the imposition of liability upon the beneficiary of that
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`exploitation.” Banff Ltd. v. Limited, Inc., 869 F. Supp. 1103, 1107 (S.D.N.Y. 1994) (quoting
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`Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963)) (internal
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`quotation marks omitted). Defendants assert that Foster “has not alleged when, where or how
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`Ms. Lee or Ms. Rodriguez committed specific infringing acts.” (Defendants’ Memorandum, at
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`5.) But according to Defendants’ version of the facts, Lee “gave final approval” to the infringing
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`use of the photograph in Allure (Dkt. No. 34, Ex. 1, Defendants’ Rule 56.1 Statement ¶ 16). And
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`because she is also the President and CEO of Lashpia, a reasonable juror could conclude that she
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`had both the “right and ability to supervise” the infringing use and “a direct financial interest” in
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`Case 1:13-cv-05857-JPO Document 66 Filed 02/25/15 Page 13 of 13
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`doing so. Shapiro, 316 F.2d at 307. But because a reasonable juror would not be required to
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`believe these facts, Foster’s motion for summary judgment on this issue is denied.
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`Evidence of Rodriguez’s role and financial interest in the infringing use, on the other
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`hand, was not developed in the record. Accordingly, a reasonable juror could conclude that she
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`is not personally liable for the infringing use. Foster’s motion for summary judgment on the
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`issue of Rodriguez’s liability is therefore denied.
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`III. Conclusion
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`For the foregoing reasons, Foster’s motion for partial summary judgment is GRANTED
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`with respect to the liability of Lashpia Corporation and DENIED with respect to the personal
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`liability of Lee and Rodriguez. Defendants’ motion for partial summary judgment is DENIED.
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`The Clerk of the Court is directed to close the motions at docket numbers 31 and 40.
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`SO ORDERED.
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`Dated: February 25, 2015
`New York, New York
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`____________________________________
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` J. PAUL OETKEN
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` United States District Judge
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