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Levin v. Gallery 63 Antiques Corp.

September 28, 2006

MARK LEVIN AND BECKY LEVIN, PLAINTIFFS,
v.
GALLERY 63 ANTIQUES CORP., ROCHELLE SEPENUK, INDIVIDUALLY AND D/B/A GALLERY 63 ANTIQUES, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Mark Levin and Becky Levin (collectively the "Levins" or Plaintiffs) bring this action against Gallery 63 Antiques Corp. ("Gallery 63") and Rochelle Sepenuk ("Sepenuk") (collectively "Gallery 63" or Defendants) alleging nine causes of action:

(1) misrepresentation/fraud; (2) breach of Defendants' express warranties/contract under Article 2 of the New York Uniform Commercial Code ("N.Y. U.C.C."); (3) breach of the covenant of good faith and fair dealing; (4) money had and received; (5) unjust enrichment; (6) promissory estoppel; (7) negligence; (8) breach of Defendants' express warranties under section 13.01 of the New York Arts and Cultural Affairs Law ("New York Arts Law"); and (9) a violation of section 349 of the New York General Business Law.

Defendants move for summary judgment on all causes of action asserted in the Complaint. Defendants first argue that Plaintiffs' misrepresentation/fraud claim fails because Plaintiffs did not reasonably rely on any statements made by Defendants. Defendants contend that Plaintiffs cannot maintain a cause of action for breach of express warranties under N.Y. U.C.C. section 2 since they received exactly what was warranted. Defendants further assert that Plaintiffs' second cause of action, for breach of contract and/or breach of warranties, cannot stand because Plaintiffs' notice of revocation was untimely. With respect to Plaintiffs' third through sixth causes of action, for a breach of the covenant of good faith and fair dealing, money had and received, unjust enrichment, and promissory estoppel, Defendants assert that these "quasi contract" causes of action cannot be maintained since an express contract between the Parties exists that governs the dispute. Defendants next argue that Plaintiffs are unable to state a claim under the New York Arts Law because Plaintiffs' agent was an "art merchant." Finally, Defendants assert that Plaintiffs' claim under the New York General Business Law fails both because private party disputes do not affect the public interest and because the claim was brought after the applicable statute of limitations ran. Also before the Court, is Plaintiffs' cross-motion for partial summary judgment on counts One, Two, Seven, and Eight of the Complaint with respect to one of the five sculptures, "Nude with Butterfly," sold to them by Defendants. For the reasons stated herein, Defendants' motion is granted in part and denied in part. Plaintiffs' motion is also granted in part and denied in part.

I. Background

The following facts are drawn from the Parties' Local Rule 56.1 statements, affidavits, depositions, and exhibits submitted in connection with these motions. They are undisputed except where noted.*fn1

The Levins first hired Roger Harned ("Harned") in 1986 to help design the interior of their new home in San Francisco. (Defs.' 56.1 Statement ¶ 4; Pls.' 56.1 Resp. ¶ 4; Jacobson Certification Exs. A, C at 3) Harned represented to the Levins that he had expertise in interior design, including the acquisition and placement of antiques. (Defs.' 56.1 Statement ¶¶ 3-4; Jacobson Certification Ex. C at 3) During the course of that work, the Levins came to rely heavily on Harned for all aspects of the design of the interior of their home, including the purchase of antiques. (Defs.' 56.1 Statement ¶¶ 3-4; Pls.' 56.1 Resp. ¶¶ 3-4; Jacobson Certification Ex. C at 3) From 1986 through 1992, the Levins purchased many antiques recommended to them by Harned. (Jacobson Certification Ex. C at 3)

In 1992, the Levins moved from San Francisco to Boston and again hired Harned to assist them in decorating their new home. (Id. at 4) In November 1996, the Levins signed a written letter agreement with Harned to recommend floor, wall, ceiling, and window treatments, and to present preliminary selections for all furnishings, including antiques for the Boston residence. (Jacobson Certification Ex. A) Under the agreement, Harned was to be paid a one-time $10,000 design fee and a commission on all purchases made for the Levins. With respect to antiques, Harned would earn a commission of approximately ten percent. (Jacobson Certification Exs. A, C at 4) The Levins understood Harned to be their agent and vested in him the express authority to purchase antiques and fine arts on their behalf. (Defs.' 56.1 Statement ¶ 2; Pls.' 56.1 Resp. ¶ 2; Compl. ¶ 9)

In late 1999, Harned suggested that the Levins display sculptures in each of the five niches that were being built on one level of their Boston residence. (Defs.' 56.1 Statement ¶ 5; Pls.' 56.1 Resp. ¶ 5; Jacobson Certification Ex. D) On January 10, 2000, Harned informed the Levins that he would travel to New York to look for appropriate sculptures. (Defs.' 56.1 Statement ¶ 6; Pls.' 56.1 Resp. ¶ 6; Jacobson Certification Ex. E) In mid-January, Harned visited Gallery 63, a sole proprietorship, owned and operated by Sepenuk. (Defs.' 56.1 Statement ¶ 7; Pls.' 56.1 Resp. ¶ 7; Jacobson Certification Exs. F, G)

During the January 2000 visit to Gallery 63, Harned identified several pieces for the Levins' house. (Defs.' 56.1 Statement ¶ 8; Jacobson Certification Ex. I) Sepenuk prepared and gave Harned an undated memo listing seven sculptures that interested Harned. (Defs.' 56.1 Statement ¶ 8; Jacobson Certification Ex. I) The handwritten memo, addressed to "Roger," states, in pertinent part:

A. The Universe

Antonio Frilli - Circa 1900

Net 125,000 - my retail = $175,000

Same artist recently sold at auction for $700,000 - another life size marble female - circa 1900

value - open

B. [crossed out]

C. Cleopatra

R. Romanelli - Full Life Size

Provenance Fine Arts Museum of San Francisco

Net = $150,000

My Retail = 225,000

value - open

D. G.B. Lombardi - Rome 1866

Provenance American University of Rome

[illegible]

Net = 138

195 list

E. The Sculptress By Prof. R. Romanelli

Life Size Woman with Chisel in her hand

Net = 97,5000

My Retail = $165,000

5% = 32,758.61

F. Nude Looking Down Prof. Petrelli

Net = $35,000 - My Retail = 45,000

(Had this a long time - Retail on the market = $75,000)

G. Life Size Nude With Butterfly

A. Gearls 1845 (Dated on Marble)

Net = $145,000 (Without Ped) - My Retail = $210,000

(Jacobson Certification Ex. I) The second statue, listed as "B" on the memo, was eliminated as an option by Harned in the store. (Jacobson Certification Ex. L) After negotiating a five percent discount if the Levins purchased five statutes together, Harned asked Sepenuk to hold the listed statues until he could discuss the purchase with the Levins. (Defs.' 56.1 Statement ΒΆ 9; Jacobson Certification Ex. L) Harned then took the ...


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