The “egregious” behavior and misdirection of a property owner who was ordered to pay $6.75 million to street artists for destroying works they put up on a group of dilapidated buildings he owns in Queens has made the judge presiding over the artists’ lawsuit wish he’d ruled differently in the case, according to a scathing ruling issued in the case Wednesday.
Denying motions to set aside the award and hold a new trial in the case, U.S. District Judge Frederic Block of the Eastern District of New York said that at a trial held last year to explore protections for artists’ works housed at the 5Pointz aerosol art gallery in Long Island City, Queens, the judge discovered that property owner Gerald Wolkoff had previously misled about his required timeline for razing the buildings that make up 5Pointz.
In a November 2013 preliminary injunction hearing, Wolkoff and his counsel told the judge that Wolkoff stood to lose millions in tax credits for condominiums he planned to build at 5Pointz, which at that point had become a tourist attraction, if he didn’t move within a specific timeframe to remove asbestos from the buildings and begin demolition.
Wolkoff submitted an affidavit in the case stating that he would lose a combined $294 million in tax benefits from the city government’s 421-a program and from brownfields cleanup.
According to a transcript of the hearing included in Block’s ruling, David Ebert of Ingram Yuzek Gainen Carroll & Bertolotti, one of the lawyers representing Wolkoff, told Block that the buildings needed to be demolished by December 2013.
Block denied an injunction to prevent Wolkoff from demolishing the buildings and Wolkoff subsequently whitewashed the 5Pointz gallery.
In a first-of-its-kind jury trial held last year to explore if the works at 5Pointz should be protected by the Visual Artists Rights Act of 1990 (VARA), according to Block’s ruling, Wolkoff said it “would be better for the plaintiffs to lose their works quickly.”
But it was also revealed that, despite Wolkoff’s statements at the injunction hearing that he was on a tight timeline, he didn’t apply for a construction permit until four months after he said he needed to demolish the buildings, and the buildings weren’t knocked down until December 2014.
“It simply stuck in my craw that I was misled that the demolition of the buildings was imminent when there was not even an application for a demolition permit extant,” Block said, saying that in hindsight he would have granted the motion for an injunction to let the public bid farewell to the attraction and pay tribute to the artists.
Eric Baum, co-managing partner of Eisenberg & Baum, and Andrew Miller, a senior associate with the firm, represent the plaintiffs.
“This decision is not only another victory for the artists at 5Pointz, but it is also a victory for aerosol artists around the country,” Baum said in an interview.
In addition to Ebert, Wolkoff is represented by fellow Ingram Yuzek attorney Mioko Tajika and Jones Day partner Meir Feder. Feder declined to comment and Ebert did not respond to a request for comment.
Wolkoff’s appeal to the U.S. Court of Appeals for the Second Circuit of Block’s ruling that 45 of the works had recognized stature under VARA and his award of maximum statutory damages for the plaintiffs was put on hold while Block considered the motion to reconsider, but the appeal will now move forward.
The parties have yet to submit briefs in the appeal, but in Wolkoff’s motion for Block to reconsider his ruling, he argues that the works at 5Pointz were not of recognized stature and thus Wolkoff was not liable under VARA and that 5Pointz never would have existed if not for Wolkoff’s largess.
He also argued that Block’s decision will have the effect of discouraging property owners from allowing artists to paint on their walls, even with a written waiver, as it “would be foolish for any property owner to risk being placed in Wolkoff’s position.”