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FOXLEY v. SOTHEBY'S INC.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 21, 1995

WILLIAM FOXLEY, Plaintiff, against SOTHEBY'S INC., Defendant.

The opinion of the court was delivered by: SHIRA A. SCHEINDLIN

MEMORANDUM OPINION

 SHIRA A. SCHEINDLIN, U.S.D.J.

 William Foxley ("Foxley") has filed a Proposed Second Amended Complaint ("SAC") alleging seventeen causes of action against Sotheby's, Inc. ("Sotheby's"), a leading auction house for fine art. Foxley seeks damages in connection with his purchase at auction of a painting subsequently regarded as inauthentic. Defendant moves to dismiss all counts.

 I. FACTS

 Foxley brought this action approximately seven years after his December 3, 1987 purchase at auction of a painting entitled "Lydia Reclining on a Divan." SAC at P 10. The piece was represented to be the work of Mary Cassatt. SAC at P 10. Based on this representation, plaintiff bid and paid $ 632,500, which included a 10% auction house premium. SAC at P 33.

 Sotheby's auction catalog stated that the painting would be accompanied by a copy of a letter "discussing" the work from Adelyn Dohme Breeskin ("Breeskin letter"), who, at one time was considered an authority on Cassatt. *fn1" SAC at P 11; Auction Catalog, December 3, 1987. The catalog guaranteed the authenticity of the painting for five years from the date of the sale. Auction Catalog, December 3, 1987. Foxley asserts that in 1992 he realized he did not have a copy of the Breeskin letter in his files. After notifying Sotheby's, Foxley received a letter stating that Sotheby's did not have the letter in its "immediate possession" at that time. SAC at P 42. Foxley asserts that he did not receive a copy of the Breeskin letter until 1993, when he learned for the first time that Breeskin's comments were predicated upon her review of a color transparency of the painting rather than the original. SAC at P 12, Ex. B. Plaintiff alleges he would not have bid on the painting if he had prior knowledge of this fact or the fact that, as Sotheby's allegedly knew, Breeskin had alerted the art world to massive Cassatt forgeries. SAC at PP 19, 23.

 Nearly six years after his purchase, in August 1993, plaintiff consigned the painting to Sotheby's for auction to be held on December 2, 1993. SAC at P 24. Prior to the auction, on November 30, 1993, Sotheby's advised Foxley that the Cassatt Committee determined the painting might be inauthentic and advised that he remove it from the auction. SAC at PP 25, 30. Foxley alleges this is when he first received actual notice of inauthenticity. SAC at P 31. Foxley removed the painting from the auction block. However, he agreed to refrain from causing "damage" to the auction and Sotheby's by withdrawing the remainder of his consignment in consideration for defendant's alleged promise to refund Foxley's purchase price. SAC at PP 38-40. As a result of Sotheby's refusal to refund Foxley's purchase price, this action was commenced on September 28, 1994. SAC at P 26.

 II. DISCUSSION

 For purposes of a 12(b)(6) motion, courts must consider all material factual allegations in the complaint to be true and construe all reasonable inferences in a light most favorable to the plaintiff. See Paulemon v. Tobin, 30 F.3d 307 (2d Cir. 1994). The complaint may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id. at 309.

 A. Fraud

 Foxley's first cause of action alleges fraud. Sotheby's seeks dismissal based on the failure to state a claim and the statute of limitations.

 1. Failure to State a Claim

 Under New York law, the elements of common law fraud are: (1) false representation(s) of (2) material fact with (3) intent to defraud thereby [scienter] and (4) reasonable reliance on the representation (5) causing damage to plaintiff. Turtur v. Rothschild Registry Intl., Inc., 26 F.3d 304, 310 (2d Cir. 1994). Plaintiff alleges several bases for his fraud claim.

 a. Sotheby's Failure to Provide the Breeskin Letter

 First, despite defendant's statement that the Breeskin letter would accompany the painting, Foxley claims "upon information and belief" that Sotheby's did not have a copy of the Breeskin letter at the time of the auction. SAC at P 11. The complaint fails to provide a factual basis for this allegation. As an allegation of fraud, therefore, it is not plead with sufficient specificity. The Second Circuit has spoken clearly on this issue.

 

Allegations may be based on information and belief when facts are peculiarly within the opposing party's knowledge. This exception to the general rule must not be mistaken for license to base claims of fraud on speculation and conclusory allegations. Where pleading is permitted on information and belief, a complaint must adduce specific facts supporting a strong inference of fraud or it will not satisfy even a relaxed pleading standard.

 Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990); see also IUE AFL-CIO v. Herrmann, 9 F.3d 1049, 1057 (2d Cir. 1993). Further, even if Sotheby's did not have a copy of the letter at the time of the auction, fraud cannot be established on these facts. Rather, since fraud requires false representation(s) and intent, the claim could stand only if defendant knowingly misrepresented that the letter would accompany the painting. The critical allegation that is absent from the complaint is that Sotheby's falsely represented that it would deliver a copy of the Breeskin letter together with the painting.

  b. Sotheby's Failure to Disclose that Breeskin Relied on a Photograph

 Second, Foxley alleges that if Sotheby's did have a copy of the letter, it "intentionally hid" the fact that Breeskin had relied on a photograph to authenticate the painting. SAC at P 12. This allegation cannot serve as a basis for fraud. Sotheby's made only one representation with respect to the Breeskin Letter in its Auction Catalog: "A copy of a letter from Adelyn Dohme Breeskin discussing the painting will accompany the lot." Auction Catalog, December 3, 1987. The letter does just that; it discusses the painting. Despite plaintiff's assertions to the contrary, the Auction Catalog never represents that the Breeskin letter authenticates the painting. More importantly, Foxley never alleges how Sotheby's made a false misrepresentation and therefore has failed to state a claim based on this set of facts.

 Further, this allegation fails to establish that Foxley justifiably relied upon Sotheby's representation that the painting would be accompanied by a letter. Foxley bought the painting in 1987 but allegedly did not receive the Breeskin letter until 1993. Transcript of Oral Argument, March 15, 1994, ("Tr.") at 29. There was more than enough time during this period to either attempt to obtain the letter or to realize that Sotheby's had failed to comply with its representation in the Auction Catalog.

 Only two factual scenarios are possible; plaintiff either received the letter or he did not. Had Foxley obtained the letter, he would have discovered that Breeskin's discussion of the painting had been based on a transparency. Therefore, he could not have justifiably relied upon the letter as authentication for the painting. Alternatively if, as Foxley alleges, he did not acquire the letter for close to six years following his purchase, he could not justifiably rely on a letter he had not read.

 Finally, the failure to receive the Breeskin letter does not establish fraud because it is an alleged omission of fact to which Foxley had access. "The principle that access bars claims of justifiable reliance is well settled. . ." Congress Fin. Corp. v. John Morrell & Co., 790 F. Supp. 459, 470-71 (S.D.N.Y. 1992). The New York Court of Appeals established in Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320, 184 N.Y.S.2d 599, 157 N.E.2d 597 (1959) that where:

 

facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence. . . he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentation.

 See also Grumman Allied Indus., Inc. v. Rohr Indus., Inc., 748 F.2d 729, 737 (2d Cir. 1984) ("where sophisticated businessmen engaged in major transactions enjoy access to critical information but fail to take advantage of the access, New York courts are particularly disinclined to entertain claims of justifiable reliance"); Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, N.A., 731 F.2d 112, 123 (2d Cir. 1984). While plaintiff does allege lack of sophistication and familiarity with respect to American Impressionism, Cassatt's specialty, Foxley was a sophisticated purchaser of art at auction. He certainly knew how to demand a letter described in an auction catalog, something he successfully accomplished in 1993. See Tr. at 29.

 In Aaron, justifiable reliance was rejected because "all of the information [claimed to be concealed] was either public record, not pursued by plaintiffs or disclosed [by defendant], at least in part." Id. at 123. In Foxley's case, a reasonable response should have led him either to obtain the letter (and thereby inform himself that Breeskin relied upon a photograph) or to deduce that Sotheby's conduct was suspect and take appropriate action. Therefore, the fact that Breeskin relied on a color transparency was readily available, in the public domain, and plaintiff did not reasonably rely on or ascertain the existence and content of the letter. This allegation cannot serve as the basis for a fraud cause of action.

 c. Sotheby's Failure to Disclose Breeskin's Unreliability

 Foxley's third set of factual allegations asserts that Sotheby's "failed to disclose that in the late 1970's it was common knowledge in the French/American Impressionist art community to which Sotheby's belongs, that Breeskin's authentications had become suspect, 'unreliable' and 'doubtful.'" SAC at P 13. For the reasons set forth above regarding inability to base fraud on an omission when the undisclosed information is in the public domain, this allegation fails as a basis for Foxley's fraud claim. *fn2"

 d. False Provenance

 Foxley's fourth factual allegation is based on the provenance of the painting. Foxley claims Sotheby's falsely listed the "last owner of record or consignor [as] 'Private Collection, Paris'" when in fact the most recent owner, the consignor, was a Mr. Michael Altman. SAC at P 20. Foxley alleges that it is widely known that Mr. Altman is not a trustworthy dealer, and that Sotheby's knowingly omitted his name to avoid placing a cloud over the painting. Plaintiff claims he relied on defendant's misrepresentation as he would not have purchased the painting if he had known of Altman's place in the provenance.

 In its reply brief, Sotheby's sought to convert its Motion to Dismiss into a Motion for Partial Summary Judgment on the provenance issue. The Court granted the request to convert, and plaintiff received notice to this effect. Foxley argues that summary judgment should be denied because of "numerous factual issues" and failure to comply with Local Rule 3(g) and Chambers Rule 2(f).

 Nonetheless, because defendant is clearly entitled to summary judgment on this issue, there has been no prejudice to Foxley. As is manifest from the affidavits and from oral argument, Foxley's allegation regarding the way Sotheby's lists ownership in its auction catalog is simply wrong. Foxley incorrectly assumed the line of ownership was listed in reverse chronological order. *fn3" By referring the Court to other provenance listings, Sotheby's irrefutably established that provenance is always listed in chronological order. See Olsoff Affidavit, Exs. B, C.

 Moreover, Foxley knew that an auction house -- and in particular, Sotheby's -- frequently does not disclose the name of the consignor of a painting. In fact, Foxley, himself, had consigned paintings to Sotheby's and had his name withheld. Tr. at 6-9, 42-44; Stone Affidavit, Exs. B, C, D. Foxley's argument that one's name should be disclosed when a consignor also happens to be an art dealer is not persuasive as no authority exists for that novel proposition.

 Alternatively, even if provenance were misrepresented, a fraud claim is precluded because the auction catalog stated that Sotheby's made no representations or warranties of provenance:

 

The authenticity of the Authorship of property listed in the catalogue is guaranteed as stated in the Terms of Guarantee. . . neither we nor the Consignor make any warranties or representations of the correctness of the catalogue or other description [including]. . . provenance. . . and no statement anywhere, whether written or oral, shall be deemed such a warranty or representation.

 Conditions of Sale at P 1. *fn4" Accordingly, Foxley fails to state a claim for fraud. *fn5"

 2. Statute of Limitations

 A fraud claim is timely filed six years from its commission, two years from plaintiff's discovery or two years from when plaintiff could have discovered the fraud "with reasonable diligence." *fn6" N.Y. Civ. Prac. L. & R. §§ 213(8), 203(g) (McKinney 1994). Neither party disputes that six years from the commission of the alleged fraud had lapsed when plaintiff filed his first complaint. Whether or not the claim is timely, therefore, turns solely on when plaintiff discovered or should have discovered the alleged fraud. Further, "the test as to when fraud should with reasonable diligence have been discovered is an objective one." Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir. 1983). Once plaintiff has notice of the fraud, "[he] is charged with whatever knowledge an inquiry would have revealed." Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992).

 The Second Circuit recently held that the time at which plaintiff was placed on inquiry notice could be appropriately determined as a matter of law:

 

Where, as here, the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of fraud can be gleaned from the complaint and papers such as the prospectuses and disclosure forms that are integral to the complaint, resolution of the issue on a motion to dismiss is appropriate.

 Dodds v. Cigna Securities, Inc., 12 F.3d 346, 352 n.3 (2d Cir. 1993) cert. denied, 128 L. Ed. 2d 74, 114 S. Ct. 1401 (1994). *fn7"

 As in Dodds, supra, "the facts needed for determination of when a reasonable [buyer] of ordinary intelligence would have been aware of the existence of fraud can be gleaned from the complaint." Id. at 352. Here, plaintiff failed to act upon his alleged failure to receive the Breeskin letter. Regardless of what Sotheby's knew, plaintiff failed to obtain the letter from Sotheby's or to learn the widely known fact that Breeskin's reliability for authentication of Cassatts was in question. Foxley's fraud claim is barred by the statute of limitations.

 B. Negligent Misrepresentation

 For the reasons discussed below, plaintiff fails to state a claim of negligent misrepresentation, which, in any case, would be barred by the statute of limitations. *fn8"

 1. Failure to State a Claim

 A claim of negligent misrepresentation requires a "special relationship." American Protein Corp. v. AB Volvo, 844 F.2d 56, 63-64 (2d Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 109, 109 S. Ct. 136 (1988) (more than ordinary buyer-seller relationship required for special relationship). Generally, a special relationship requires prior or ongoing interaction. See Coolite Corp. v. American Cyanamid Co., 52 A.D.2d 486, 384 N.Y.S.2d 808 (1st Dep't. 1976). An "arm's length business relationship is not enough." United Safety of America, Inc. v. Consolidated Edison Co., 1995 N.Y. App. Div. LEXIS 3014 *6 (1st Dep't. 1995). Foxley meticulously laid out an array of allegations establishing a significant association between himself and defendant throughout two decades. Interactions between the two parties included personal visits, viewings of his personal collection, introductions to Sotheby's key personnel, private luncheons and various representations. See Complaint at PP 52-59. Allegedly, Foxley thought himself to be, and was treated as, a client with a factual and legal special relationship.

 In Rosen v. Spanierman, 711 F. Supp. 749, 758 (S.D.N.Y. 1989), vacated in part and remanded on other grounds, 894 F.2d 28 (2d Cir. 1990), the mere purchase of a painting from defendant and subsequent appraisals with "no bearing on the relationship between the parties at the relevant time" did not create the special relationship necessary to maintain a negligent misrepresentation claim. As noted above, Foxley alleges considerably more than the plaintiffs had alleged in Rosen. However, this cause of action is clearly controlled by Stewart v. Jackson & Nash, 976 F.2d 86, 90 (2d Cir. 1992). In Stewart, the Second Circuit affirmed the dismissal of one of plaintiff's claims.

 

II. The Negligent Misrepresentation Claim.

 

* * * *

 

Under New York law, a plaintiff may recover for negligent misrepresentation only where defendant owes her a fiduciary duty.. . The complaint asserts no facts that would establish such a fiduciary duty (emphasis added).

 The Court finds that there was no actual (or alleged) fiduciary relationship between the litigants. Therefore, Foxley fails to state a claim for negligent misrepresentation. *fn9"

 2. The Uniform Commercial Code and the Statute of Limitations

 The purchase of the painting in this case constituted a sale of goods at auction governed by the Uniform Commercial Code, N.Y.U.C.C. §§ 2-328, 2-102, 2-105 (McKinney 1990). *fn10" See also Miron v. Yonkers Raceway, 400 F.2d 112 (2d Cir. 1968) (action arising from auction sale of horse governed by U.C.C.); Lupo v. Smith, 80-5510, Slip Op. (S.D.N.Y. July 9, 1981) (Haight, J.) ("Article 2 of U.C.C. -- which governs sales of goods -- has been applied with full force to auction sales in several contexts. . ."); Regan Purchase & Sales Corp. v. Primavera, 68 Misc. 2d 858, 328 N.Y.S.2d 490, 492 (Civ. Ct. N.Y. Co. 1972). *fn11" Sotheby's correctly notes that a claim for negligence cannot be maintained where the underlying action sounds in contract. See Wilson v. Hammer Holdings, Inc., 850 F.2d 3, 8-9 (1st Cir. 1988).

 Given that Foxley's contractual cause of action is controlled by the New York U.C.C., Section 2-725 thereof provides the relevant statute of limitations:

 

An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . . A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

 As Sotheby's points out, the warranty of authenticity in the Terms of Guarantee did not extend to future performance:

 

We guarantee the authenticity of Authorship of each lot contained in this catalogue on the terms and conditions set forth below.

 

2. Guarantee Coverage. Subject to [] exclusions . . . if within five (5) years from the date of the sale of any lot, the original purchaser of record tenders to us a purchased lot in the same condition as when sold through us, and it is established that the identification of Authorship (as defined above) of such lot set forth in the Bold Type Heading of this catalogue description of such lot . . . is not substantially correct based on a fair reading of the catalogue including the terms of any Glossary contained herein, the sale of such lot will be rescinded and the original purchase price refunded.

 Amended Complaint, Ex. A. The above is a limited warranty rather than a warranty of future performance; it expired on December 3, 1992.

 Similarly, in Rosen, 894 F.2d at 31, defendants fully guaranteed the piece as an original. In rejecting plaintiffs' breach of contract action in that case, the Second Circuit declined to:

 

create an exception to section 2-725's explicitness requirement when the warranty concerns an immutable quality. . . . As the district court recognized, subdivision 2 of section 2-725 is itself an exception to the general statute of limitations on breach of warranty claims. It would be inappropriate to expand this exception beyond its plain terms by dispensing with the condition that, to take advantage of the exception, the warranty explicitly extend to future performance. *fn12"

 Accordingly, as to all causes of action arising from the U.C.C., the statute of limitations ran as of December 3, 1991 -- four years after the auction. *fn13"

 C. Breach of Contract

 Foxley claimed the sale by defendant and the consignor of the inauthentic painting constituted a breach of contract for services by "authenticating, evaluating and auctioning" an inauthentic (or questionable) Cassatt when the price paid was for an authentic Cassatt. Foxley also alleges Sotheby's hid the breach. Because, as noted supra, this cause of action is governed by the four-year statute of limitations set forth in N.Y.U.C.C. 2-725, this claim is time-barred.

  D. Recision

 Foxley seeks recision of the contract because it was allegedly entered into by unilateral or mutual mistake. Claims for recision are governed by a six-year statute of limitations contained in CPLR § 213(6). Unlike fraud, there is no tolling provision based on the discovery of mistake. Accordingly, the statute of limitations ran as of December 3, 1993 -- six years after the auction. Foxley's recision claim is time-barred.

 E. Unjust Enrichment

 Foxley alleges that defendant was "unjustly enriched by taking $ 637,480 for something that has practically no value." SAC at P 70. Unjust enrichment is a quasi-contractual claim. See e.g. In re Chateaugay Corp., 10 F.3d 944 (2d Cir. 1993). This cause of action fails to state a claim because quasi-contractual claims are not available where an express contract exists. See Apfel v. Prudential-Bache Securities, Inc., 81 N.Y.2d 470, 479, 600 N.Y.S.2d 433, 616 N.E.2d 1095 (1993); Clark-Fitzpatrick, Inc. v. Long Island Rail Road Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987). The terms of the contract between Foxley and Sotheby's were composed, in part, of the Conditions of Sale and Terms of Guarantee. *fn14" The contract was finalized upon the closing of the bids on the Cassatt.

 At oral argument, plaintiff countered this obstacle by arguing that fraud vitiates a contract. Tr. at 63. As determined above, plaintiff failed to state a claim for fraud. Accordingly, the contract between the parties remained in effect, and the claim for unjust enrichment must be dismissed. *fn15"

 F. Promissory Estoppel Arising from the 1987 Sale

 The complaint alleges that Foxley detrimentally relied on representations by Sotheby's. Plaintiff further alleges that because Sotheby's hid its breach until November 1993, defendant "is estopped from denying that they represented the Cassatt as an original and that it breached its contract with Foxley by selling him an unauthentic painting for $ 632,500." SAC at P 80.

 Promissory estoppel is a quasi-contractual claim. See e.g., Sheahan v. CBS, Inc., 1994 U.S. Dist. LEXIS 2623 (S.D.N.Y.). Because, as noted above, an express contract was in effect, this claim must be dismissed. See Clark-Fitzpatrick, 70 N.Y.2d at 389-390; Chrysler Capital Corp. v. Century Power Corp., 778 F. Supp. 1260 (S.D.N.Y. 1991).

 G. Breach of Separate/Modified Contract

 As noted above, after Foxley consigned the Cassatt to Sotheby's for the 1993 auction, he was notified of questions as to the painting's authenticity. Sotheby's advised him to withdraw the piece from the auction block. Foxley alleges that he, in turn, stated that he would withdraw all his works from the auction which would effectively ruin the event and harm the reputation and goodwill of Sotheby's. SAC at P 85. Foxley alleges that Sotheby's, in consideration for his refraining from withdrawing his goods, promised to "make good on the painting [and hold him] harmless." SAC at P 85. Foxley argues that Sotheby's thereby created a new or modified contract, which it subsequently breached.

 Sotheby's first contends that the allegations cannot form the basis for a separate contract because the alleged conversation relates to issues explicitly raised in the Consignment Agreement. The Court disagrees. According to the complaint, an independent, express oral agreement with consideration was reached between the parties. SAC at PP 82, 83, 85. *fn16" It was capable of being performed within one year as required by the Statute of Frauds. N.Y. Gen. Oblig. § 5-701(a)(1) (McKinney 1989). Further, if the parties did enter into a new contract, plaintiff has sufficiently alleged defendant's breach of that agreement.

 Sotheby's also contends that P 15 of the Consignment Agreement expressly prohibits oral modifications. plaintiff responds that the modification became enforceable because it was partially performed by his leaving his other paintings with Sotheby's after being advised to withdraw the Cassatt. Defendant argues that the doctrine of partial performance is not available to a party unless the performance is "unequivocally referable" to the modification. The doctrine is available to plaintiff only if:

 

[his] actions can be characterized as "unequivocally referable" to the agreement alleged. It is not sufficient... that the oral agreement gives significance to plaintiff's actions. Rather, the actions alone must be "unintelligible or at least extraordinary," explainable only with reference to the oral agreement. Plaintiff's actions, viewed alone, are not "unequivocally referable" to an agreement to convey a one-half interest in defendant's corporation. While the agreement alleged provides a possible motivation for plaintiff's actions, the performance is equivocal, for it is as reasonably explained by the possibility of other expectations . . .

 Anostario v. Vicinanzo, 59 N.Y.2d 662, 663, 463 N.Y.S.2d 409, 410, 450 N.E.2d 215 (1983); see also Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 522 (2d Cir. 1990). Sotheby's argues that Foxley partially performed not simply so that Sotheby's would fulfill its alleged agreement to "make good" on the Cassatt, but to avoid incurring withdrawal fees pursuant to paragraph 8 of the Consignment Agreement. Foxley denied this claim. Tr. at 70-71, SAC at P 85. Construing the allegations of the complaint as true, as required, Foxley's claim of breach of an oral contract modification and/or a separate contract survives defendant's motion to dismiss.

 H. Remaining Claims Withdrawn or Dismissed at Oral Argument

 At oral argument, plaintiff withdrew his claims for (i) "damage to business representation and emotional distress," (ii) promissory estoppel, (iii) deceptive trade practices, and (iv) professional malpractice. Also at oral argument, the Court dismissed five other claims. These claims warrant additional discussion.

 1. Breach of Agency

 The first such claim was for breach of agency agreement. Foxley alleged Sotheby's acted as his agent and breached its duty, when authenticating, appraising and offering the painting for auction. Plaintiff alleged defendant fraudulently recommended the sale of an inauthentic painting or failed to use its expertise to discover the inauthenticity. SAC at P 99. At oral argument, Foxley's counsel stated that the claim revolved solely around plaintiff's 1987 purchase. Tr. at p. 72.

 Foxley's claim is barred because the consignment agreement's express language states: "no representations or warranties [are made] with respect to [inter alia] authenticity." Consignment Agreement at P 12. Further, the Auction Catalog states that, in order to protect a minimum bid, Sotheby's "bids as agent for the seller. . ." Auction Catalog (December 3, 1987). *fn17"

 2. The Claims Relating to Sotheby's Appraisals

 The four remaining claims were premised upon subsequent appraisals of the painting. plaintiff alleged that Sotheby's was negligent in performing two appraisals in 1989 and 1993, and also breached its contract with Foxley. Defendant correctly argued that appraisals are for the purpose of estimating fair market value and, unlike authentications, do not purport to confirm provenance or authorship. Clearly demonstrating this fact, the appraisal agreements set forth a disclaimer: "our appraisal... is not to be deemed a representation or warranty with respect to the authenticity of authorship. . . genuineness. . . [or] attribution." Appraisal Agreements at p. 1.

 The appraisal agreements also include an exculpatory clause, which releases Sotheby's from liability stemming from appraisals. It states: "In consideration of our furnishing the appraisal, you hereby release Sotheby's. . . from any liability or damages whatsoever arising out of or related to the appraisal. . . unless... due to Sotheby's gross negligence or bad faith." Generally, exculpatory clauses which are explicit in a contract foreclose damage claims alleging reliance on the subject matter disclaimed. See e.g., Manufacturer's Hanover Trust Co. v. Yanakas, 7 F.3d 310 (2d Cir. 1993); Travelers Ins. Co. v. 633 Third Associates, 973 F.2d 82, 84-85 (2d Cir. 1992); Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 157 N.E.2d 597 (1959). Foxley, however, alleges that the 1993 appraisal suggests bad faith. SAC at P 127.

 The Court has reconsidered its oral ruling. Sufficient facts exist to support the two claims that the 1989 and 1993 appraisals of the painting were negligently performed. Defendant twice re-appraised the Cassatt at $ 650,000 when, in fact, it might have been worthless. SAC at PP 125, 127. *fn18" Accordingly, the claims for negligent appraisal survive the motion to dismiss.

 I. Attorneys' Fees

 Finally, pursuant to Fed. R. Civ. P. 15 (a), Sotheby's seeks attorneys' fees based on the fact that this is a proposed third complaint and that some arguments have been frivolous. Because the Court finds that many of the questions raised by the complaint and the briefs were brought in good faith and, indeed, raised close questions, the request is denied.

 III. CONCLUSION

 For the foregoing reasons, all causes of action are dismissed except the negligent appraisal claims and those relating to the 1993 oral contract. Attorneys' fees are denied.

 SO ORDERED:

  Shira A. Scheindlin

  Dated: New York, New York

  April 21, 1995


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