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LEVI v. FINESOD

February 22, 1995

ROBERTA BOXER LEVI, Plaintiff, against HERMAN FINESOD, JACKIE FINE ARTS, INC., ART MASTERS INTERNATIONAL LTD., SECOND EDITION FINE ARTS, and DIVERSIFIED INVESTORS SERVICES OF NORTH AMERICA, Defendant.

KEVIN THOMAS DUFFY, U.S.D.J.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY

KEVIN THOMAS DUFFY, D.J.:

 Plaintiff Roberta Boxer Levi initiated the present diversity action on December 28, 1992. On April 1, 1993, Defendants Herman Finesod, Jackie Fine Arts, Inc. ("Jackie"), Art Masters International ("AMI"), and Second Edition Fine Arts ("Second Edition") moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By a memorandum and order dated December 17, 1993, I denied that motion in its entirety. Plaintiff now moves for summary judgment on the issue of liability in favor of Plaintiff and against Defendants. *fn1" By a separate notice of motion, Plaintiff also moves for an order pursuant to Rule 37(b) of the Federal Rules of Civil Procedure precluding Defendants from offering any evidence or making any defenses or counterclaims against Plaintiff; granting summary judgment against Defendants on the issue of damages, and that it be taken as established that Plaintiff's damages amount to $ 18,531,400. Plaintiff additionally requests that Defendants be held in contempt of court, and also be required to pay Plaintiff's attorney's fees and costs.

 For the following reasons, Plaintiff's motion on the issue of liability is granted, while the issue of damages will be referred to Magistrate Judge Buchwald for an inquest. Questions of attorney's fees and costs will abide the determination of the inquest. The remaining motions are denied.

  I.

 The facts of this case have been set forth at length in my December 17, 1993 memorandum and order denying Defendants' motion for summary judgment. See Levi v. Finesod, 1993 U.S. Dist. LEXIS 17957, 1993 WL 535191, at *1 (S.D.N.Y. December 17, 1993). As those same facts form the basis of the present motions, they are restated in part below.

 Marina Picasso is the granddaughter and one of the heirs of the reknowned artist Pablo Picasso. In the late 1970's, Plaintiff introduced some of the Defendants to Marina's art dealer, who introduced them to Marina's attorney, who in turn introduced them to Marina Picasso herself.

 Paraselenes S.A. is a company in which Marina Picasso maintains an ownership interest. On December 6, 1979, Paraselenes S.A. entered into an agreement with AMI (the "Initial Agreement") which granted to AMI the rights to reproduction masters of certain Picasso works. Pablo Picasso's other heirs did not consent to the Initial Agreement, and commenced lawsuits in the United States and France challenging its validity. On October 26, 1980, the heirs agreed to the acquisition of the reproduction masters by AMI, pursuant to a settlement agreement (the "Settlement Agreement").

 On May 20, 1981, Finesod and Jackie entered into an agreement to pay Levi for her services, effective as of January 1, 1979 (the "Agreement"). The Agreement specifically acknowledges that the reproduction masters were acquired as a result of Levi's services. The Agreement also requires Levi to pay 8% of the legal fees incurred in defending the lawsuits brought by the other heirs over the Initial Agreement. The amount Levi owed for these legal fees could be deducted from Levi's commissions under the Agreement.

 In addition to these findings, I also expressly recognized that, in further opposition to Defendants' motion, Levi "provided much evidence tending to show that the terms of the contractual arrangements establish that her obligation was to introduce the Moving Defendants to Marina Picasso's representatives. Indeed, Levi has put forth so much evidence on this issue that it appears that the wrong party has moved for summary judgment." Finesod, 1993 U.S. Dist. LEXIS 17957, 1993 WL 535191, at *3 (S.D.N.Y. December 17, 1993). I assessed the evidence set forth by Levi as follows:

 
First, § 1.01 of the Agreement provides that the Moving Defendants "have heretofore and/or may hereafter acquire ownership and/or options to acquire the reproduction or other rights in and to Masters owned by the Picasso Estate" as a result Levi's introduction of the Moving Defendants to the estate of Pablo Picasso and to Marina Picasso's representatives.
 
Second, through § 2.01 of the Agreement, the Moving Defendants again acknowledge that they have acquired and may acquire the rights to the reproduction masters as a result of Levi's services. Specifically, § 2.01 provides:
 
Finesod, Jackie, and AMI agree that any and all Picasso Masters heretofore and hereafter acquired by Finesod, Jackie, AMI or any other Entity during the term hereof will have been acquired as a result of the services of [Levi].
 
Finally, § 3.08 required Levi to pay for part of the legal fees incurred in defending the lawsuits brought by the other Picasso heirs. In fact, the Moving Defendants were permitted to deduct Levi's share of the legal fees from her commissions. These provisions indicate that the Moving Defendants believed that Levi had performed her obligation, which was to introduce them to the representatives of Marina Picasso. ...

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