A judge has ruled that the custom-built home in Sayville, below, makes unauthorized use of an architect's design used in the construction of the Mount Sinai home above.
Newsday photo / Jim pepper
Judge says home's copy had no right
Unusual ruling by court declares that builder was wrong in replicating design without first getting permission from original architect.
BY ROBERT E. KESSLER
robert.kessler@newsday.com
Sometimes a picture, or two, can be worth more than 1,000 words - maybe, several hundred thousand dollars.
A federal Judge in Brooklyn, in an opinion on architects' rights, ruled that a contractor violated federal copyright law when he custom-built a home in Sayville without the permission of an architect whose same design had been used by another contractor to build homes in Mount Sinai.
U.S. District Judge Eric Vitaliano in a ruling last week said the architect, Glen Cherveny, and his firm, Axelrod and Cherveny of Commack, were entitled to damages to be determined at a later hearing from Anthony Martino and his firm, Winmar Homes of St. James.
The damages in a copyright suit, often based on the profit made by the violator, could run into hundreds of thousands of dollars.
A home builder's profit can be as much as 50 percent of sale price, and the house in question, at 53 Kemi Lane in Sayville, was worth between $800,000 and $1 million.
The ruling was rare both in that the law involved - the federal Architectural Works Copyright Protection Act of 1990 - is fairly new and has been infrequently invoked in court, and because the judge based his decision on looking at pictures of the two houses and reading papers submitted by attorneys for both sides without holding hearings to determine factual issues.
In his ruling, Vitaliano wrote, "This is a case where a picture is worth a thousand words ... the interior and exterior of the two homes are virtually identical in shape and layout."
The case began in 2002 when a couple, Ali and Khairunnisa Malik, saw a house that Cherveny had designed in 1996 on Casey Lane in Mount Sinai, showed Martino a picture of the house and a brochure about it, and asked Martino if he could build one like it, according to court papers.
In 2004, Cherveny said he was driving around Suffolk, happened to pass the Malik house and began the lawsuit. Martino said the Malik house was actually built on a similar plan to Cherveny's that Martino had in his files and that the plan had not been copyrighted.
Cherveny's attorney, Braden Farber of Mineola, said yesterday that the judge's decision should be "a wake-up call to contractors" that they can't use an architect's design without proper credit and compensation.
Martino's attorney, Jeltje DeJong of Smithtown, said her client was considering an appeal. DeJong said there are "a lot of similar houses on Long Island ... not many original homes here. Many people call them McMansions."
Michael Lisi, a lawyer who specializes in architectural law in Bloomfield Hills, Mich., out side of Detroit, and is not directly familiar with the Long lsland case, said, that in general, copying architectural designs is not an uncommon practice. But Lisi said few lawsuits were being brought because everybody in the housing industry was "too busy" making money during the housing bubble to bother to sue. Now during the downturn, Lisi said he is noticing an increase in such suits and predicts more come.