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March 30, 2001


The opinion of the court was delivered by: Cedarbaum, District Judge.


This action arises from a dispute over the authenticity of certain works of art attributed to Lazar Khidekel, who was born in Vitebsk in 1904 and has been associated with the Suprematist movement in Russian art. In 1918, Khidekel entered the Vitebsk School of Art. Kazimir Malevich was the theorist and leader of the Suprematist movement, and is the movement's most widely recognized and celebrated artist. When Malevich arrived in Vitebsk in November 1919, Khidekel became one of Malevich's pupils. Additionally, Khidekel was a member of UNOVIS ("Affirmers of the New Art"), a group that Malevich founded at Vitebsk in 1920. Other members of UNOVIS included Ilya Chashnik and Nikolai Suetin. In 1922, Malevich moved to Petrograd, along with some members of UNOVIS, including Khidekel. In that same year, Khidekel became a student of architecture at the Petrograd Institute of Civil Engineering. Although he continued to create works of art during the 1920's, from 1930 to 1985, Khidekel taught architecture at the Leningrad Institute of Civil Engineering. In 1986, Lazar Khidekel died in the former Soviet Union at the age of 82.

Claude and René Boulé, Parisian art collectors who own 161 works attributed to Khidekel, filed this action against Mark and Regina Khidekel, a son and daughter-in-law of the artist, as well as Ingrid Hutton and the Leonard Hutton Galleries, the art dealer and art gallery that exhibited and offered for sale the collection of Khidekel works that Mark and Regina inherited from the artist. The Boulés sue under the Lanham Act, 15 U.S.C. § 1125(a), claiming that certain statements attributed to the defendants falsely disparaged the authenticity of the Boulés' collection in order to promote the sale of the Khidekel paintings at the Hutton Galleries. The only Lanham Act claim that survived partial summary judgment is a claim against the Hutton defendants for statements in their exhibition catalog in early 1995. See Boulé v. Hutton et al., 70 F. Supp.2d 378 (S.D.N.Y. 1999). The Boulés also assert various pendent state law claims which arise from the same nucleus of operative fact, including violations of the New York General Business Law, product disparagement, defamation, tortious interference with business relationships, common law unfair competition, unjust enrichment, breach of contract, common law fraud, prima facie tort and the tort of "false light." The majority of these claims required the Boulés to prove the falsity of defendants' statements that impugn the authenticity of the Khidekels owned by the Boulés.

A bench trial was held from September 27, 2000 through October 6, 2000. In addition to the testimony of Claude and René Boulé, plaintiffs presented the testimony of Patricia Railing, an art historian who lives in England, Jean-Claude Marcadé, a French art historian and researcher at the Centre National de Recherche Scientifique in Paris, Samuel Palenik, an analytical forensic microscopist, Andrew Sulner, a forensic document examiner, and Serge Essaian, a Russian artist who lives in Paris. Plaintiffs also submitted deposition testimony of Yvette Moch, a former employee of the Chauvlin gallery in Paris and organizer of a Russian avant-garde exhibition at the Centre d'Art Contemporain in Tanlay, France, Helene Larroche, owner of Itinéraires, a Paris bookstore and art gallery, and Edith Flak, owner of the Flak Gallery in Paris. In addition to the testimony of Ingrid Hutton and Mark and Regina Khidekel, defendants presented the testimony of Alexandra Shatskikh, a Russian art historian employed by the Research Institute of Art History in Moscow, and Eugena Ordonez, an art conservator and technical analyst.


After examining all the evidence, observing the demeanor of the witnesses and considering the plausibility and credibility of the testimony, I make the following findings of fact.

1. Claude and René Boulé currently own 161 works on paper and one oil painting attributed to Lazar Khidekel, as well as works of Larionov, Kogan, Sofranova, Yudine, and Cahvovra.

2. The Boulés purchased 176 works on paper attributed to Khidekel over a period of four years, beginning in 1984, from a private dealer named Vladmir Tsarenkov whom Claude Boulé met outside of the Hotel Druout. Tsarenkov requested that the Boulés conceal his identity.

3. The Boulés paid a total of 1.5 million French Francs ("FF") in cash to Tsarenkov for the works.*fn1

4. Tsarenkov did not provide the provenance of any of the works that he sold to the Boulés.

5. In 1991, the Boulés also purchased for £ 2,800 an oil painting attributed to Khidekel, "Suprematist Composition," from a Sotheby's auction in England.*fn2

6. In the summer of 1988, Jean-Claude Marcadé brought Mark Khidekel to the Boulés' home in Paris. At that meeting, Claude showed Mark 20 to 25 Khidekel works. Mark appeared moved that his father had admirers in Paris, and did not express any skepticism about the authenticity of the Boulés' works at that time. Claude is fluent in French and is able to understand and speak some English and Russian. Mark is fluent in Russian and is able to understand and speak some English. Marcadé, who is fluent in both Russian and French, acted as an interpreter at this meeting and at all subsequent meetings at which he was present.

7. In 1989, Helene Larroche, owner of the Itinéraires book store and art gallery, proposed a joint exhibition of the Khidekel collections of the Boulés and of Mark. On July 25, 1989, the Boulés and Mark signed an agreement for this joint exhibition.

8. The Itinéraires exhibition was canceled because Mark failed to furnish his father's works by the date specified in the agreement.

9. When Mark visited the Boulés in July 1989, he gave Claude a photograph of his father as a gift, and he noted that his father had personally framed the photograph.

10. In March 1990, Larroche arranged for Regina to meet the Boulés. At this meeting, Regina apologized for Mark's failure to comply with the agreement for the joint exhibition and attributed this failure to the political upheaval surrounding the dissolution of the former Soviet Union in the fall of 1989.

11. Claude informed Regina that the Boulés were planning to lend their Khidekel works to an exhibition at the Joliette Museum of Art in Montreal, Canada. Regina did not express any objection to the Boulés' display of their works at the Joliette exhibition.

12. On June 6, 1991, Mark, accompanied by Serge Essaian's daughter and Jean-Claude Marcadé, visited the Boulés at their home. Mark gave the Boulés a ceramic vase as a gift and inscribed the photograph of his father which he had given to the Boulés in 1989. At this visit, Mark asked whether he could display his Khidekel collection with the Boulés' collection at the Joliette exhibition. Claude told Mark that since limited funds had been allotted for the exhibition, it would not be possible to include Mark's works, but Mark could request an invitation to lecture at the exhibition.

13. On June 9, 1991, Mark, Regina, and Marcadé joined the Boulés and two of the Boulés' children for lunch at the Boulés' home in Paris. Mark and Regina expressed their desire to attend the Joliette exhibition in order to show slides of their own collection. Mark and Regina also commented that they would like to lecture at the Joliette exhibition about Khidekel and his works. Mark and Regina did not express any reservations regarding the authenticity of the Boulés' collection.

14. Mark and Regina made an unexpected visit to the Boulés' home on June 11, 1991. They arrived without an interpreter and communicated with Claude using a combination of Russian, English, French and hand signals. Mark said that he wished to show Claude slides of his father's works. Claude then reciprocated by showing her Khidekel collection. At this time, a substantial portion of the Boulés' Khidekel collection was in transit to the Joliette exhibition. Claude showed Mark all of the original works that remained at the Boulé residence and slides of the remaining works. Mark noted some differences between the Boulés' collection and his collection, and commented that the bulk of the Boulés' collection was created when Lazar Khidekel was a very young student — possibly as early as 1920.

15. At some point during the June 11 meeting, Mark agreed to sign certificates of authenticity for the Boulés. Mark insisted on receiving cash for the certificates, because he did not have a checking account and would be leaving Paris shortly. Since Mark insisted on being paid in cash, and the Boulés had only 40,000 FF on hand, Mark was willing to sign only 16 certificates, at a price of 2,500 FF per certificate. Mark chose among the 44 original works that remained at the Boulés' residence, examined the works closely with a magnifying glass and signed certificates of authenticity on the backs of photographs corresponding to the selected works. Regina was present at the time that Mark signed those certificates.

16. Fifteen of the certificates include the following statement: "I, Mark Khidekel, having examined the artwork shown to me measuring . . ., hereby confirm that it is the work of my father, Lazar Khidekel, and that it can be identified as a study."

17. In November 1991, Claude conveyed Mark and Regina's request to participate in the Joliette exhibition. In the spring of 1992, Mark wrote a letter to the Joliette museum containing his and Regina's passport numbers and noted that he and Regina would be available to lecture on a variety of subjects. The letter also noted that he and Regina would be accompanied by their 11-year-old son Roman. The Khidekels ultimately did not participate in the Joliette exhibition.

18. The Boulé collection was exhibited in different galleries throughout Canada from August 1992 to August 1993.

19. Following the Joliette exhibition, Yvette Moch requested that the Boulés lend two watercolors and their oil on canvas to the Chateau de Tanlay exhibition in Tanlay, France.

20. At the end of 1994, Patricia Railing asked the Boulés to lend some of their Khidekel collection to an exhibition at the University of Iowa which was to be entitled "The Faces of Suprematism." Ultimately, for financial reasons, the University of Iowa exhibition was not held.

21. After learning that the Hutton Galleries exhibited, and offered for sale, some of Mark and Regina's Khidekel collection at the International Fair of Contemporary Art ("FIAC") in Paris in October 1994, the Boulés decided to sell some of their own Khidekel collection. The Boulés contacted Edith and Roland Flak, owners of a Paris gallery that specializes in 20th Century art, to sell some of the Boulés' Khidekel collection.

22. The Boulés consigned four of their Khidekel works to the Flaks for display at the April 1995 Art Messe in Frankfurt. The gallery had agreed to pay the Boulés 40,000 FF per work sold at the Art Messe, but no works were sold.

23. In December 1995, the Flaks orally agreed to purchase at 40,000 FF per work a group of works from the Boulé Khidekel collection over a two to three year period, but did not work out the details of when, and under what circumstances, payment would be made. The arrangement appears to have been a consignment with a fixed payment per work sold.

24. In 1995, the Hutton Galleries exhibited and offered for sale several dozen works on paper from Mark and Regina's collection at prices averaging over $18,000 each. Only four works were sold — including two works that had not been listed for sale.

25. From October 1994 through February 1996, the Khidekels and Ingrid Hutton made a number of statements that impugned the authenticity of the ...

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