A: I would find it very difficult to argue the point, now seeing this.
Deposition of Roland Hartman at 43-44. Whatever meaning may be gleaned from these unresponsive answers, it is clear that they pertain only to Roland's present awareness of the figure's provenance. This testimony has no bearing on his knowledge at the relevant time when he entered into the contract.
The defendants also rely on plaintiff's deposition to support their claim that Roland knew the sculpture was stolen as far back as 1976:
Q: Did you have any reason to doubt, at that time, that the piece was a stolen piece in '76?
A: As far as I can remember, yes, I knew it at that point.
Q: That it was a stolen piece?
. . .
Q: My question is: Now in 1976, was there any doubt in your mind that this piece was stolen.
A: I continued to assume it was.
. . .
Q: Well, did you have ownership of "The Bronze" in 1980?
A: I still have ownership. I haven't got ownership of "The Bronze". Wait a minute. Until "The Bronze" was sold in Sotheby's, "The Bronze" was mine.
Q: And your knowledge was that the piece was a stolen piece?
Id. at 53-54, 100-01.
This testimony, as well as plaintiff's admission that he had trusted Myers information regarding the theft,
clearly demonstrate that he knew the sculpture had been stolen when he entered into the agreement with Donald to sell it. Since this knowledge establishes the requisite mental state for a violation of the federal, California and New York statutes, the 1980 agreement is void and unenforceable.
Plaintiff also contends that he is entitled to maintain the contract claims based on events following the sale in 1986. He argues that a new contract was formed by Donald's statement to him that the sale proceeds would be in escrow for three years. Based on this statement, plaintiff allegedly believed that he would receive his share when the escrow ended.
In order for this purported contract to be enforceable, there must be consideration. See, e.g., Holt v. Feigenbaum, 52 N.Y.2d 291, 299-300, 437 N.Y.S.2d 654, 658-659, 419 N.E.2d 332 (1981). Plaintiff asserts that the consideration was his forbearance on his right to immediate payment under the illegal 1980 contract. However, "if [the consideration] is a forbearance, it must generally be to refrain from doing that which a party has a legal right to do." Roth v. Isomed, Inc., 746 F. Supp. 316, 319 (S.D.N.Y. 1990) (Carter, J.) (emphasis added). Since the plaintiff "requires the aid of the illegal transaction to make out his case," Ferkin v. Board of Educ. of Union Free Sch. Dist. No. 25, 278 N.Y. 263, 268, 15 N.E.2d 799 (1938) (citation omitted),
the alleged 1986 contract must also be void. Therefore summary judgment will be granted on plaintiff'S first and second claims.
It is regrettable that the defendant, Donald Hartman, who openly admits violating at least three criminal statutes
and unabashedly uses these illegal acts to shield himself from liability, will benefit from this determination. However, "where the parties' arrangement is illegal 'the law will not extend its aid to either of the parties . . . or listen to their complaints against each other, but will leave them where their own acts have placed them.'" United Calendar Mfg. Corp. v. Huang, 94 A.D.2d 176, 463 N.Y.S.2d 497, 500 (1983) (citation omitted). Thus, the present holding in favor of defendants shall not be construed as a condonation of their deplorable conduct.
Plaintiff's third claim alleges that, in 1986, Donald fraudulently induced plaintiff to abandon his right to a portion of the sale proceeds by falsely telling him that the funds would be held in escrow for three years. However, a cause of action for fraud cannot be maintained unless plaintiff detrimentally relied on the misrepresentation. See, e.g., Roney v. Janis, 77 A.D.2d 555, 430 N.Y.S.2d 333, 335, (1st Dep't 1980), aff'd 53 N.Y.2d 1025, 442 N.Y.S.2d 484, 425 N.E.2d 872 (1981). Even assuming Roland's allegations to be true, plaintiff has suffered no injury since he was never entitled to any of the money. Thus, defendants' motion for summary judgment is granted as to the fraud claim.
Accordingly, defendants' motion, under Rule 56, F.R.Civ.P., for summary judgment on all of plaintiff's claims is granted and this action is dismissed.
IT IS SO ORDERED.
Dated: New York, New York
December 16, 1992
Robert L. Carter