2liability on the copyright and DMCA claims, as well as certain legal questions regarding howdamages are to be assessed should liability be found.
The Court has undertaken a thorough review of the record, particularly the evidence citedin the parties’ 56.1 statements and counterstatements.
See Monahan v. New York City Dep't of Corrections
, 214 F.3d 275, 292 (2d Cir. 2000);
see also 24/7 Records, Inc. v. Sony Music Entm't, Inc.
, 429 F.3d 39, 46 (2d Cir. 2005) (noting that courts are not required to consider what the parties fail to point out in their 56.1 statements, although they may exercise their discretion to doso);
Charter Oak Fire Ins. Co. v. Tri-County Fire & Safety Equip. Co.
, 636 F. Supp. 2d 193, 197(E.D.N.Y. 2009) (“[I]t is only those portions of the record submitted in connection with a motionto which the court's attention is specifically directed, that the court is obligated to consider indetermining whether a material issue of fact exists.”). On careful consideration of the evidence,the following facts and disputes of fact appear from the record.
Morel Tweets Photos of the 2010 Haiti Earthquake
On January 12, 2010, a devastating earthquake struck Haiti. (Morel SMF ¶ 12; CC Def.CSMF ¶ 12; Morel Decl. ¶ 11). Morel, a photojournalist, was on scene and captured a number of images of the aftermath. (Morel SMF ¶¶ 1, 13; CC Def. SMF ¶ 1, 13; Morel Decl. ¶¶ 2, 12-14).Morel then posted his photographs to Twitter through a TwitPic account. (Morel SMF ¶¶ 17, 21;CC Def. CSMF ¶¶ 17, 21; Morel Decl. ¶¶ 16, 19, 22; Hoffman Decl. Ex. U at Twitpic001-002).
The Court notes that there are several instances in which Morel purports to dispute assertions in CounterclaimDefendants’ 56.1 statement, but has cited no evidence that demonstrates such a dispute. Except to the extent that theCourt has located record evidence that, in fact, controverts such assertions or the assertions are not substantiated bythe record, Morel’s unsupported denials are insufficient to create a genuine issue of material fact.
See Lorterdan Props. at Ramapo I, LLC v. Watchtower Bible & Tract Soc'y of N.Y., Inc.
, 2012 U.S. Dist. LEXIS 95693, at *2-4 n.1(S.D.N.Y. July 9, 2012);
BOUSA, Inc. v. United States (In re Bulk Oil (USA) Inc.)
, 2007 U.S. Dist. LEXIS 27346, at*48-50 (S.D.N.Y. Apr. 11, 2007) (“[F]ailure to provide any citation at all will leave a factual allegation withoutevidentiary value.”).
Case 1:10-cv-02730-AJN-MHD Document 192 Filed 01/14/13 Page 2 of 58