that Defendant warranted that title was acquired as per the Statement of Provenance. (Fairstein Aff. Exs. 1, 3.) Plaintiff amended paragraphs 13, 16, 20, 22, and 25 to specify that the claims arise from breach of four representations made in paragraph one in the warranties section of the Bill of Sale. (Fairstein Aff. Ex. 3.) The representations include that Defendant was the sole and absolute owner of the Painting, that Defendant acquired title as claimed in the Statement of Provenance, that Defendant knew of no challenges to the authenticity of the Painting, and that the Painting was an authentic Francis Bacon. (Pl. 3(g) Statement Ex. A.) In the original complaint, these paragraphs simply alleged that the claims arose because the Defendant failed to convey title to a true and authentic Francis Bacon painting. (Fairstein Aff. Ex. 1.)
Defendant argues that Plaintiff's motion to amend his Complaint as to Paragraph 6
should be denied because the Court should not allow the addition of new claims not based on or derived from facts in discovery. The Court finds no merit to this argument. There is no evidence that Plaintiff knew prior to discovery that Defendant did not acquire the Painting as stated in the Provenance. The only addition to paragraph six is the fact that title was not conveyed as the Statement of Provenance provides.
Furthermore, for the purposes of the summary judgment motion, the only other paragraph amended that pertains to Count II, on which Plaintiff is moving for summary judgment, is paragraph 16. Paragraph 16 details the breaches of warranties that Defendant made. However, all the warranties were stated at other times in the original Complaint. (Compl. PP 6(a)-(c), 16)
Finally, the Defendant does not argue that the amendments will cause undue delay or prejudice to him. Defendant does not argue that he has not had complete discovery with regard to the amendments. Nor does Defendant argue that the amendment is futile or made in bad faith. The Court finds the changes simply detail claims already alleged in the Complaint and are in line with discovery.
As the amendment does not cause undue delay or prejudice to Defendant and the amendment is not futile or made in bad faith, the Court grants Plaintiff leave to amend the Complaint as presented to the Court. Richardson, 825 F.2d at 653 n.6. The amendments do not change the substance of this action, and have been fully discovered. Furthermore, Defendant has fully addressed Plaintiff's claims in his Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment. (See, e.g., Def.'s Mem. Law at 9.) Motions for summary judgment are based on the evidence adduced during discovery, not merely on the pleadings. Accordingly, the Court finds that there is no reason to delay the action to allow the Defendant to answer the Amended Complaint. The Plaintiff is ordered to file the Amended Complaint within five days of receipt of this Memorandum & Order, in the form submitted to the Court as Exhibit 3 to his Notice of Motion.
B. Partial Summary Judgment on Breach of Warranty Claim
1. Summary Judgment Standards
Plaintiff seeks partial summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on Count Two of the Complaint which alleges breach of warranty. Plaintiff contends that Defendant breached the following warranties: First, that Defendant was unaware of any challenges to the Painting's authenticity. Second, that the Defendant was the sole and absolute owner of the Painting. Finally, that Defendant acquired title as described in the Provenance.
The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). "The plain language of Rule 56(c) mandates the entry of 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).
As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).
2. Breach of Warranty Claims
Plaintiff claims that the Defendant breached several warranties found in the Bill of Sale and the Provenance. The Bill of Sale states in pertinent part:
In order to induce David Rogath to make the purchase, Seller . . . makes the following warranties, representations and covenants to and with the Buyer.