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Loving v. N'Namdi

August 31, 2006


The opinion of the court was delivered by: John G. Koeltl, District Judge


The plaintiff, Mara Kearney Loving, as executrix of the estate of Al Loving ("Loving"), brings this motion for partial summary judgment. The plaintiff seeks entry of an order requiring the defendant George Richard N'Namdi ("N'Namdi") to: (1) account for all works delivered by Loving to galleries owned by N'Namdi,

(2) return all works of art by Loving that are not the subject of bona fide sales, and (3) pay to the plaintiff any unpaid proceeds from previous sales of Loving's art.

The defendant opposes the motion, arguing that a determination on issues of liability before the parties have begun discovery is inappropriate in this case.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'Ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).


The following facts are undisputed unless otherwise noted. Beginning in or around 1981, Loving sold artwork through G.R. N'Namdi Gallery, Inc. and George N'Namdi Gallery Corp. (collectively, the "Galleries") on what appears to have been a consignment basis. (Declaration Of George Richard N'Namdi In Opposition To Plaintiff's Motion For Partial Summary Judgment, dated Mar. 6, 2006 ("N'Namdi Decl.") ¶¶ 2-4.)*fn1 The defendant is the sole shareholder of the Galleries. (Id. at ¶ 1.)

In April of 2005, with Loving's health in decline, the plaintiff requested that the defendant provide her with an accounting of funds owed to Loving for paintings sold. (Declaration of Mara Kearney Loving In Support Of Motion For Partial Summary Judgment, dated Feb. 17, 2006 ("Loving Decl.") ¶ 4.) Sometime after June 21, 2005 (the date on which Loving died), the plaintiff was given the accounting she requested. (N'Namdi Decl. ¶ 5.) According to the document provided to the plaintiff, the defendant owed Loving $54,400 at the time Loving died. (Id. at ¶ 7.) The plaintiff claims that this accounting was neither accurate nor complete. (Loving Decl. ¶¶ 4-5.) The defendant admits that it was inaccurate but states that further review of his inventory revealed that he only owed $27,195 to Loving's estate. (N'Namdi Decl. ¶ 7.) The parties continue to dispute the correct amount of money owed to the plaintiff for paintings sold.

In defense of his inability to make a proper accounting, the defendant claims that the plaintiff has failed to respond to his discovery requests (adding that once the requested documents are produced, he will need time to review them before he can make an accurate accounting of the proceeds of Loving's work.) (Id. at ¶¶ 9-10.) In addition, the defendant claims that the plaintiff has not afforded him adequate time to compile documents pursuant to her discovery requests. (Id. at ¶ 11.) He also asserts that at the time this motion was filed, a certified public accountant was reviewing the Galleries' records to ascertain the correct amount. (Id. at ¶ 7.)

Along with the dispute over the proceeds of artwork that was sold, there is a dispute over unsold works of art in the defendant's possession at the time of Loving's death. At some point in or after June of 2005, the plaintiff demanded the return of any unsold pieces of Loving's artwork then in the defendant's possession. (Loving Decl. ¶ 5.) According to the plaintiff, the defendant initially claimed that all of Loving's artwork had already been sold and that he was no longer in possession of any artwork belonging to Loving. (Id.) In his answer to the plaintiff's complaint however, the defendant asserts that no works were turned over to the plaintiff because she had not produced any evidence that she was the legal representative of Loving's estate. (Answer ¶ 35.) Later, the defendant indicated that seven works of art were in his possession and would be released to the plaintiff. (Emails Between David Ganz And John Cahill, dated Feb. 13, 2006 and attached as Exh. D to Loving Decl.) As of March 11, 2006, however, the defendant had released a total of 22 works of art to the plaintiff. (Reply Declaration Of John Cahill In Further Support Of Plaintiff's Motion For Partial Summary Judgment ¶ 2(c)). The plaintiff claims that a number of those artworks were "damaged and incomplete." (Id. at ¶ 4.)



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