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March 5, 2002


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.


More than twenty years ago, plaintiff Rita Clark entrusted an allegedly valuable painting to Catalina Meyer, a wealthy and serious art collector, for display in Ms. Meyer's East 67th Street townhouse in the hope that a person of substantial means would see it there and purchase it. The painting allegedly was turned over on the promise that Ms. Meyer would keep the painting insured for $200,000 as long as it remained in her possession. In 1997, Ms. Meyer was killed and 2 the painting destroyed in a tragic fire. There was no insurance on the painting. Ms. Clark now sues Ms. Meyer's executrix and estate to recover the $200,000. The matter is before the Court on Clark's motion for summary judgment and the defendants' cross-motion for partial summary judgment dismissing two of the three counts of the complaint and, in any event, determining that plaintiff's damages, if any, may not exceed $8,000.


The essential outlines of the tale are undisputed. Clark and her late husband were given the painting in 1956 as a wedding gift. In 1968, they took it to the National Gallery of Art in Washington, D.C., to have it evaluated in accordance with the Gallery's "expert opinion" program where it was examined by H. Lester Cooke, who ran the program.*fn1 Cooke rendered an opinion as follows:

"Oil on panel. Style of Perugino C. 1505 ? Appears to be Cinquecento. Several layers of overpaint. From Amando Brassini, in Rome."*fn2

According to plaintiff, Cooke told Ms. Clark that the painting was worth up to $250,000.

Following Cooke's examination, the Clarks placed the painting in storage with a firm in Washington, where it remained from 1968 to 1989*fn3.

Ms. Clark's brother, Miguel D'Escoto, was a friend of Catalina Meyer.*fn4 In 1989, Ms. Clark discussed the possibility of selling the painting with D'Escoto, who in turn discussed it with Ms. Meyer.*fn5 While the admissibility of plaintiff's evidence concerning discussions between Clark and Meyer concerning the transfer of possession of the painting is disputed, a matter addressed below, the parties agree that Clark had the painting delivered to Meyer in the spring of 1989 and that it remained in her townhouse until the fatal fire in 1997.*fn6

The parties agree also that Meyer in late April or early May 1989 contacted an insurance broker who then handled her homeowner's insurance and requested that an insurance binder be issued by her carrier to cover the painting against loss through, among other things, fire.*fn7 The binder duly was issued, insuring the painting effective as of May 4, 1989 in the amount of $200,000 and naming Rita Clark, whom it described as the owner of the painting, as loss payee.*fn8 The binder bears two handwritten notations. The first is in the hand of the broker, Ms. Cleveland, and states "Kitty/Joanne Please send an appraisal on this painting by 6/4/89. Thanks Gail". It is followed by Ms. Cleveland's signature. The second is in the handwriting of Ms. Meyer. It reads "As per request by owner Rita Clark to be $200,000". It is followed by Ms. Meyer's signature.*fn9

The insurance coverage on the painting was renewed for the year April 10, 1989 to April 10, 1990.*fn10 At some point, however, the insurance expired, and it is undisputed that there was no specific coverage at the time of the fire.*fn11 Ms. Clark contends that she never was told that the coverage had expired and that she would have reclaimed the painting had she been aware of that fact.

Plaintiff's remaining claim for relief against Meyer's executrix and estate*fn12 is that Clark entrusted the painting to Meyer upon an express agreement that Meyer would keep the painting insured so that Clark would receive $200,000 in the event of its destruction and that Meyer breached. She seeks summary judgment on this claim. Defendants cross move to cap the damages at $8,000 on the theory that there is no evidence that could support a higher valuation of the painting.


In passing on a motion for summary judgment, the Court may consider only admissible evidence,*fn13 and it is obliged to view the evidence in the light most favorable to the non- moving party. It may grant summary judgment only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.

Plaintiff's motion for summary judgment depends upon the premise that Meyer promised Clark that she would keep the painting insured in such a way that the plaintiff would receive $200,000 if it were destroyed while it remained in Meyer's possession. Defendants have offered no evidence to the contrary. The question therefore is whether plaintiff has adduced sufficient admissible evidence to prove such a promise.

A. Admissibility of Plaintiff's Evidence of an ...

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