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KIRBY v. WILDENSTEIN

February 24, 1992

ROGER W. KIRBY, Plaintiff,
v.
DANIEL WILDENSTEIN and FONDATION WILDENSTEIN, Defendants.



The opinion of the court was delivered by: LEONARD B. SAND

 SAND, J.

 Plaintiff Roger Kirby has brought this diversity action against Daniel Wildenstein and the Fondation Wildenstein (together "Wildenstein") alleging the tort of product disparagement. Presently before us is Wildenstein's motion for summary judgment. For the reasons discussed below, Wildenstein's motion is granted.

 Background

 A. Factual History.

 Plaintiff is the owner of a painting entitled "La Rue de la Paix" (hereinafter the "Painting") painted by the nineteenth century French artist Jean Beraud. Defendant Daniel Wildenstein is a world-renowned art expert and Director of defendant Fondation Wildenstein, *fn12" a not-for-profit corporation organized under French law that engages in art historical research and publishes catalogues of the works of French artists. The gravamen of plaintiff's complaint is that Wildenstein made false and disparaging statements about the Painting that prevented its sale at a scheduled auction and left it "burned" and otherwise devalued thereafter.

 The facts relevant to Wildenstein's motion for summary judgment are as follows. In 1988, plaintiff looked into the possibility of selling the Painting and approached several auction houses and art dealers toward that end. One of the auction houses was Christie, Manson & Woods International, Inc. (hereinafter "Christie's"), and on March 3, 1988, plaintiff entered into a consignment agreement with Christie's. Christie's set a reserve price, or minimum price at which the Painting would be sold, of $ 160,000, and the Painting was scheduled to be offered at Christie's May 25, 1988 auction.

 At the same time, Patrick Offenstadt, the recognized expert on Jean Beraud, was preparing a "catalogue raisonne" of the artist's works. A catalogue raisonne is regarded as a definitive catalogue of the works of a particular artist; inclusion of a painting in a catalogue raisonne serves to authenticate the work, while non-inclusion suggests that the work is not genuine. Offenstadt was preparing the Beraud catalogue under the auspices of Fondation Wildenstein.

 One of the terms of the consignment agreement between plaintiff and Christie's provided that Christie's would communicate with Offenstadt to verify that the Painting would be included in the forthcoming Beraud catalogue raisonne. See Affidavit of Karen M. Crupi in Support of Defendants' Motion for Summary Judgment, January 7, 1991, Exh. H (hereinafter "Crupi Aff."). Polly Sartori, the vice-president of Christie's 19th Century European Paintings Department and the Christie's representative with whom plaintiff dealt, told plaintiff that she intended to include the Offenstadt reference in Christie's sales catalogue for the May 25, 1988 auction and that the Painting could not be sold without the reference. Plaintiff had no objection to Sartori's communicating with Offenstadt.

 On March 16, 1988, Sartori wrote to Offenstadt at Fondation Wildenstein, seeking confirmation that the Painting would appear in the catalogue raisonne. Christie's included a color transparency of the Painting and suggested that Offenstadt arrange a viewing. Instead of traveling to New York to examine the Painting himself, Offenstadt asked Wildenstein to look at it. Wildenstein is a renowned expert on nineteenth century art, including the works of Beraud, and had seen approximately 200 paintings by Beraud other than the Painting owned by plaintiff. Wildenstein agreed to view the painting during an April 1988 trip to New York, and asked Sartori to send the Painting to Wildenstein & Company, his gallery in New York. Sartori obliged, and Wildenstein examined the Painting.

 During his examination, Wildenstein scrutinized the Painting for some twenty minutes, looking at both the front and the back and observing the Painting from various distances. According to his deposition testimony, Wildenstein observed that the canvas had been relined and that the figures in the Painting were more blurred than those of other Berauds he had seen. As a result, he concluded that the Painting was either "skinned," meaning that it had suffered the removal of paint through overcleaning, or a copy. See Crupi Aff., Exh. B, Deposition of Daniel Wildenstein, Oct. 9, 1990, at 41, 59-60 (hereinafter "Wildenstein Dep.").

 On May 5, 1988, Offenstadt informed Sartori by telex that the Painting would not be included in the forthcoming catalogue raisonne. An employee of Wildenstein & Company, Joseph Baillio, also told Sartori that Wildenstein did not like the Painting and did not believe it was genuine. See Crupi Aff., Exh. E, Deposition of Polly J. Sartori, Oct. 26, 1989, at 60 (hereinafter "Sartori Dep."). Sartori decided to withdraw the Painting from the May 25, 1988 auction.

 Although Sartori had removed the Painting from the May auction, she believed that it was genuine. Sartori wrote to the Paris-based art dealer Bernheim-Jeune et Cie, whose label was affixed to the back of the Painting, seeking confirmation of its authenticity. Bernheim-Jeune provided documents showing that it had purchased the Painting directly from Beraud in 1907. Sartori forwarded the documents to Fondation Wildenstein along with a letter dated June 10, 1988, and asked that Wildenstein reevaluate his opinion with respect to the Painting's authenticity.

 By letter dated June 20, 1988, Fondation Wildenstein informed Sartori that Wildenstein had received the Bernheim-Jeune documents and revised his opinion as to the genuineness of the Painting. The letter stated that the Painting would be listed in the forthcoming catalogue raisonne as an authentic Beraud, but would bear a notation that the Painting had been damaged by "an abusive restoration and cleaning." The ...


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