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December 8, 1993

DAVID TUNICK, INC., Plaintiff,
E. W. KORNFELD and GALERIE KORNFELD UND CIE, Defendants, v. DAVID TUNICK, Counterclaim Defendant.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 This action arises from Mr. E. W. Kornfeld's and Galerie Kornfeld und Cie's (collectively "Kornfeld" or "defendants") sale of a signed Picasso print to plaintiff, David Tunick, Inc. Plaintiff alleges that defendants sold David Tunick, Inc. a print entitled Le Minotauromachie (the "Print") which defendants represented was signed by Pablo Picasso (the "Signature") but which, in fact, bears a forged signature. As a result, plaintiff brought this action alleging breach of warranties, fraud, reckless misrepresentation, breach of the duty of honesty and fair dealing, and breach of fiduciary duty. Defendants deny plaintiff's allegations, contend that the Signature is genuine, and have filed counterclaims against plaintiff, David Tunick, Inc., and counterclaim defendant, David Tunick (collectively "Tunick" or "plaintiff"). Defendants' counterclaims allege breach of contract, unjust enrichment, and fraud. In the instant motion, defendants seek summary judgment on each of plaintiff's five claims for relief and on defendants' first counterclaim, which alleges breach of contract.


 It is well settled that a court should grant a motion for summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact. See Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990); see also United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir.), cert. denied, 112 S. Ct. 431 (1991). An issue is genuine and material for purposes of summary judgment if the evidence before the court presents a sufficient disagreement to require submission to a jury and is not so one-sided that a party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A "court may grant summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A primary purpose of summary judgment is to isolate and eliminate factually unsupported claims or defenses. See id. at 323-24. As the Supreme Court has emphasized, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Id. at 327 (quoting Fed. R. Civ. P. 1).

 Conclusory allegations are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 256; Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989). Rather, to defeat a motion for summary judgment, a plaintiff must offer "'concrete evidence from which a reasonable juror could return a verdict in his favor.'" Cinema N. Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989) (quoting Dister v. Continental Group, Inc., 859 F.2d 1108 (2d Cir. 1988)); see Grant Thornton v. Syracuse Sav. Bank, 961 F.2d 1042, 1046 (2d Cir. 1992).

 1. Defendants' Motion for Summary Judgment on Plaintiff's First Claim for Relief

 Defendants seek summary judgment on plaintiff's first claim for relief. Plaintiff's first claim for relief alleges that "Defendants have breached their express warranties to plaintiff (a) that the [signature on the Print] is authentic and (b) that the [Print] had been signed in 1942 and had gone directly from Picasso to a private collector whose widow consigned it to Defendants for sale at the action." Defendants contend that plaintiff is unable to demonstrate that the Signature is not genuine. Further, defendants contend that, even if the Signature is not authentic, plaintiff's refusal to accept a replacement print of Le Minotauromachie, that also was allegedly signed by Pablo Picasso, defeats plaintiff's ability to recover for breach of warranty.

 Defendants' first contention is easily disposed of and, in fact, defendants in their reply memorandum concede that, for the purpose of this motion, the authenticity of the Signature is in dispute. See Defendants' Reply Memorandum of Law in Support of Motion for Summary Judgment ("Defendants' Reply Memorandum"), at 7-8. Plaintiff, subsequent to the filing of defendants' motion for summary judgment, has identified a forensic document examiner, William J. Flynn, willing to testify that the Signature is a forgery. See Declaration of William J. Flynn, at 2 (dated, October 20, 1993). While the late date at which this expert was identified may appear odd in light of plaintiff's assertion in its complaint that "prior to the commencement of the present suit [in 1991], Plaintiff learned that numerous experts are of the opinion that the Signature [on the Print] is false," plaintiff has submitted sufficient evidence to place the authenticity of the Signature in dispute. Hence, summary judgment on this basis is not appropriate.

 Defendants' second contention, that even if the Signature is not authentic, plaintiff's refusal to accept a replacement print of Le Minotauromachie defeats plaintiff's ability to recover for breach of warranty, appears to raise an issue of first impression. Plaintiff claims that, immediately upon learning that the Signature was forged, it demanded rescission of the sale and tendered the Print to defendants. *fn1" Plaintiff thus revoked acceptance of the Print in accordance with Section 2-608 of the Uniform Commercial Code as enacted in New York ("N.Y.U.C.C."). Under the N.Y.U.C.C., a purchaser who in good faith revokes his acceptance of goods, has the same rights and duties with regard to the goods involved as if he had rejected them. See N.Y.U.C.C. § 2-608(3). One duty imposed upon the buyer pursuant to N.Y.U.C.C. Section 2-508 is that:

(1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
(2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.

 N.Y.U.C.C. § 2-508.

 Defendants allege, and plaintiff does not contest, that shortly after Mr. Tunick informed Mr. Kornfeld that he believed the Signature to be a forgery, Mr. Kornfeld offered to exchange the Print for another print of Le Minotauromachie which also was allegedly signed by Pablo Picasso. Defendants contend that, in so doing, defendants exercised their right under N.Y.U.C.C. Section 2-508(2) to substitute conforming goods for the allegedly non-conforming tender rejected by plaintiff. Plaintiff rejected defendants' offer to replace the Print with another print of Le Minotauromachie and filed suit in this Court. Defendants aver that, because Mr. Kornfeld's offer met the standards of N.Y.U.C.C. Section 2-508, plaintiff could not properly reject the offer and look to alternative remedies. Plaintiff disputes the applicability of N.Y.U.C.C. Section 2-508 to prints. Plaintiff avers that:

In the world of fine art, however, there can be no legally meaningful doctrine of functional equivalence or substitution. . . . Prints vary, sometimes widely, in many ways and no two are the same. Purchasers obviously buy prints for different reasons. . . . Their choice of one print over another will be ...

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