By Bill Parry
When a federal judge in Brooklyn ruled in favor of the 5Pointz artists in their landmark lawsuit against developer Jerry Wolkoff in February and ordered him to pay $6.7 million in compensation for ordering the whitewashing of the world famous Long Island City graffiti mecca in November 2013, Judge Frederick Block blamed Wolkoff’s “insolence” for the damages being so costly.
Last week, Wolkoff’s motion to set aside the award and order a new trial was rejected by Block of the Eastern District of New York, who said he was misled by the developer on several occasions in his courtroom.
In his 89-page decision, Block wrote that during a preliminary injunction hearing in November 2013, Wolkoff filed an affidavit saying he would lose $294 million in tax credits for condominiums he planned to build at the 5Pointz site if the old warehouse complex was not demolished by December 2013. But it was revealed that Wolkoff had not applied for a construction permit until four months after he said he needed to have the buildings demolished.
“In short, Wolkoff’s rationales did not make any sense and were not credible. Clearly he wasn’t doing the artists any favors,” Block wrote. “I had observed his demeanor on the witness stand and his persistent refusal to directly answer the questions posed to him by me and under cross-examination. I did not believe him. Moreover, 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. I was appalled at this conscious material misrepresentation.”
Wolkoff could not be reached for comment before press time.
Block ruled in favor of the 5Pointz artists following a three-week trial in federal court in November with the jury finding Wolkoff had violated the federal Visual Artists Rights Act, which was enacted in 1990. The law granted artists the rights to prevent intentional modification of their visual artworks and the destruction or mutilation of artworks “of a recognized stature.” It was the first time VARA had been used to protect aerosol artwork.
The case will now head to the U.S. Court of Appeals for the Second Circuit and the two parties have yet to submit briefs in the appeal.
In his conclusion, Block took a final shot at Wolkoff and his company.
“I note that I have discovered one additional fact supporting my finding under the statutory factors that Wolkoff and G&M Realty continue to profit from the destruction of 5Pointz: G&M Realty’s attempt to secure the trademark in the brand name ‘5Pointz,’ of which the court takes judicial notice,” he wrote. “Wolkoff knew that this application had been made at the time of the trial. This is further evidence of his deceptiveness since he claimed to have ‘no knowledge’ of efforts to brand his new luxury condos with the 5Pointz logo.”
Reach reporter Bill Parry by e-mail at bparr