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
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 ...