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Damme v. Gelber, Nahum & Gasiunasen Gallery of Palm Beach, Inc.

Other Lower Courts

January 23, 2008

Alexandre Van Damme, Plaintiff,
v.
Gelber, Nahum & Gasiunasen Gallery of Palm Beach, Inc., Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

For Plaintiff: Jon Paul Robbins, Esq. McLaughlin & Stern LLP

For Defendant Gasiunasen Gallery of Palm Beach, Inc.: Melvyn R. Leventhal, Esq.

For Defendant Nahum Gelber: Victor M. Metsch, Esq. Colleen Dalton, Esq. Hartman & Craven LLP

OPINION

Bernard J. Fried, J.

In this lawsuit, plaintiff Alexandre Van Damme seeks enforcement of a contract by which he attempted to buy a painting by Gerhard Richter.

The complaint alleges that an art dealership called Ticolat Fine Art entered into a Contract of Sale, dated January 31, 2007 [1], to buy Richter's painting entitled "A.B. Diffus" for 2 million (then the equivalent of $2.6 million) plus commissions (the "Contract"). The Contract was signed by Ticolat as "Purchaser" and Gasiunasen Gallery of Palm Beach, Inc. as "Seller by Seller's Agent." The first paragraph of the Contract says that "Seller, acting by and through Seller's Agent, agrees to sell [the painting] to Purchaser.... Seller understands that Purchaser's purchase is conditioned upon performance by Purchaser's client, the ultimate purchaser." The Contract provided that New York law would govern the transaction and that the parties consented to the exclusive jurisdiction of the state and federal courts sitting in New York.

On the same day, Ticolat executed a bill of sale with Van de Weghe Fine Art, LLC of New York City, in which Van de Weghe Fine Art agreed to buy the painting from Ticolat for $2.9 million, "without condition or reservation of any kind." (Compl. Ex. 3, at 1.) But Van de Weghe Fine Art was not the ultimate purchaser either; it was acting as the agent of plaintiff, the real buyer.

The Contract provided that New York law would govern the transaction and that the parties consented to the exclusive jurisdiction of the state and federal courts sitting in New York.

According to the complaint, Gasiunasen itself did not own the painting; it was acting as the agent for Nahum Gelber, the real owner of the painting. Ticolat acted as intermediary between Gasiunasen and the purchaser.

According to the complaint, a week before the Contract was executed, Christophe Van De Weghe, the owner of Van de Weghe, Ltd., acting on behalf of plaintiff, inspected the painting at an apartment in Toronto that belonged to Gelber. The painting passed Van De Weghe's inspection, and Ticolat and Gasiunasen agreed in principle on the terms of the sale. Gasiunasen issued an invoice to Ticolat, and plaintiff wired $2.9 million to Van de Weghe.

The complaint alleges that, on February 5, 2007, Van de Weghe wired plaintiff's $2.9 million to an escrow agent, who then wired $2.71 million to Gasiunasen; this amount included the purchase price of 2 million plus Gasiunasen's $100,000 commission. Later the same day, according to the complaint, Gasiunasen wired $2.61 million to Gelber's bank account in Monaco and delivered a bill ...


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