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Kitchen v. Sothebys

Other Lower Courts

February 19, 2008

Greg Kitchen, Claimant,
v.
Sothebys, Defendant.

Editorial Note:

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

COUNSEL

For claimant pro se: Gregory Kitchen

For defendant: John R. Cahill, Esq. Lynn & Cahill LLP

OPINION

Barbara Jaffe, Judge.

On June 20, 2007, claimant commenced the instant small claims action against defendant, the well-known fine art auctioneer, for falsely stating to him and others that a picture he owns is a print, and not, as he alleges, a pastel by Pierre-Auguste Renoir. [1] In a brief decision and order dated November 7, 2007, I dismissed the claim after a trial conducted before me on November 5, 2007, finding as follows, in pertinent part:

While claimant is frustrated by defendant's refusal to provide him with an opinion consistent with those purportedly held by experts in the pertinent field concerning the nature of a work of art he had purchased from a third party for $150, there is no legal basis for holding defendant liable for any alleged failure in that regard, especially since claimant never relied to his detriment on the opinion articulated by defendant in 1993 or thereafter. Rather, claimant sought other opinions.

To the extent that claimant maintains that defendant destroyed any possibility he has of selling the work, he offered insufficient non-hearsay evidence in support, and in any event has admittedly sought opinions from only a handful of other experts and galleries, relying instead on his unsupported claim that defendant controls the art market.

By letter dated November 26, 2007, claimant contends that the case was wrongly decided and the trial unfairly conducted. I exercised my discretion and deemed it a motion pursuant to Civil Practice Law and Rules (CPLR) 4404(a) to set aside the verdict.

In response, defendant maintains that claimant's letter ought not be considered and otherwise denies that the trial was unfairly conducted or wrongly decided, except to the extent that it argues that the claim should have been dismissed for the additional reason that it is time-barred. It also renews its request for relief pursuant to New York City Civil Court Act [NYCCCA] 1810. (Letter of John R. Cahill, Esq., dated Dec. 17, 2007 [Cahill letter]).

In reply, claimant submits a three-ringed binder containing an unsigned introduction, several exhibits, and an index to the exhibits. In opposing defendant's argument that his claim is time-barred, claimant asserts that defendant has repeated its denigrating comments concerning the picture many times over the years.

Before addressing the merits, I observe that while a litigant is free to seek vindication in the small claims part for a claim netting a judgment far below its actual value, the purpose of the part is "to facilitate the handling of minor claims and grievances without resort to the use of counsel . . ." ( Roundtree v. Singh, 143 A.D.2d 995, 996 [2d Dept 1988]). As claimant seeks the adjudication of the authenticity of a potentially important and valuable work of art, his claim is not minor and ought not depend on evidence of a quality sufficient to prove a claim within the court's monetary jurisdiction. (I.B.2.). Nonetheless, given the time and energy claimant has devoted to this case and his insistence on a reconsideration of his evidence beyond that reflected in my November 7 decision, I address all of the evidence presented, including the exhibits claimant submitted in reply to defendant's December 17 letter, much of which were not offered in evidence at trial. As the evidence is insufficient to warrant holding defendant liable here, I need not offer defendant an opportunity to address claimant's reply submissions.

For the following reasons, the parties' respective motions are denied.

I. SUFFICIENCY OF THE EVIDENCE

A. Trial testimony

Claimant, a photographer and art collector, testified as follows: In 1993, he purchased the pastel for $150 from an unidentified dealer who he alleges acquired it as a print from an unidentified estate. Immediately thereafter, claimant brought the picture to defendant, the preeminent authority on 19th century French Impressionist art, whose representative told him, without any explanation, that the picture was a print. Claimant had occasionally provided defendant with photography services and, according to him, had sold artwork through it and had other pieces authenticated by it on prior occasions.

Later in 1993, after a Renoir expert expressed interest in seeing the picture, claimant decided that it was a genuine watercolor pastel by the French Impressionist master,

Pierre-Auguste Renoir, which he created as a study for his famous oil painting, "The Bathers."

Some time in 1994 or 1995, claimant showed the picture to the eponymous Owen Gallery in Manhattan. Claimant testified that Owen "said Renoir pastel," and asked claimant to call him the following day to discuss it further. The next day, Owen told claimant that he had called defendant, that "they called it a print," and that he could do nothing about it. Claimant immediately called defendant, and upon asking one Mr. Ruprecht [2] why defendant was calling it a print, Ruprecht replied, "We can call it whatever we want."

Claimant also brought the picture to the Wildenstein Gallery ("Wildenstein") which, according to claimant, ranks with defendant in terms of power and authority in the field of French Impressionism. On the recommendation of one of Wildenstein's representatives that he have the picture scientifically tested, claimant sought the services of the McCrone Institute which had been responsible for discrediting the widely known theory that the "Shroud of Turin" was Jesus's actual shroud. According to claimant, in February 2000, Dr. McCrone found that the picture tested positive as a pastel. Despite this finding, one of defendant's experts, Blake Koh, said that the picture was a print and in 2003, recommended that claimant consult with the Renoir authority at Wildenstein.

In 2002, claimant sought and obtained from Adriaan Kardinaal of the Royal Library of the Netherlands' Institute of Culture and Heritage, a chemical analysis of the picture. Kardinaal's report, for which claimant testified he paid $8,000, reflects a finding that the picture is a pastel. Claimant had the report presented to defendant but received no response, which claimant explained as the product of the ignorance of defendant's experts concerning Renoir's use of technical art paper. The report presented at trial was neither signed nor authenticated, and contains no information concerning Kardinaal's qualifications as an expert in the field of the chemical analysis of pastel on paper.

Claimant was no more successful at Christie's, one of defendant's rivals in the auction business ( see Greenwood v Christie, Manson & Woods Intern., Inc., 1993 WL 541181 [SD NY] [referring to defendant as a rival auction house of Christie's]), which would not accept the picture without Wildenstein's seal of approval. Finally, in 2006, Ruprecht again told claimant that the picture is a print.

At the close of claimant's testimony, I reserved decision on defendant's motion for a trial order of dismissal on the grounds that claimant had failed to set forth a legal basis for finding it liable and that the claim is time-barred.

Claimant called as an expert witness, Arnold B. Wagner, an art restorer specializing in oil painting. I deemed him an expert in pastels. Wagner testified that after examining the picture in 1993 and seeing indicia of pastel on it, he told claimant that "there was more here than meets the eye," and recommended that he seek the services of the McCrone Institute which, according to his understanding, never reported a finding that the picture was by Renoir. Although Wagner acknowledged that a report, dated 1993 and bearing his signature, reflects a finding that the picture is a pastel, he had little recollection of it and was unable to affirmatively state that he had authored it.

The record reflects that claimant agreed that as the testimony of his two other witnesses, Charles Wrablica and claimant's wife Merrilee Cohen, would duplicate his testimony, it was unnecessary to call them to the stand. Claimant did not produce the picture for my examination.

Defendant called no witnesses. I reserved decision on defendant's renewed motion to dismiss and on defendant's motion pursuant to NYCCCA 1810 for an order compelling claimant to seek leave to prosecute future claims against it in the small claims part. In my November 7 decision, I granted only defendant's motion to dismiss the claim.

B. Analysis

1. Timeliness of the claim

Claimant's evidence established that as of 1993, he possessed what he deemed authority establishing the falsity of defendant's opinion that the picture is a print. Consequently, having failed to bring suit until 2007, he is time-barred from doing so now, whether based on the six-year statute of limitations for an action based on fraud (CPLR 213[8]) or the three-year statute of limitations for actions grounded on negligence and appraiser malpractice (CPLR 214[4], [6]). As claimant's evidence affords no reason to believe that his claim sounding in product disparagement accrued within the year before he filed the instant claim, it too is untimely. (CPLR 215[3]). Even if the parties had entered into a contract, the claim would still be barred by the six-year statute of limitations for an action based on breach of contract. (CPLR 213 [2]).

Claimant's repeated attempts to obtain a different opinion from defendant on succeeding occasions do not revive his claims for fraud, negligence, or professional misconduct as these causes of action accrue upon the commission of the acts underlying them or, at latest, the discovery of the facts underlying them. Likewise, defendant's repetition of its opinion to others over the years does not resuscitate his claim for product disparagement. ( See David J. Gold, P.C. v Berkin, 2001 WL 121940 [SD NY] [continued dissemination of allegedly defamatory statements is not re-publication giving rise to new cause of action, in particular where, as here, the subsequent reports were qualitatively identical and published by original tortfeasor]).

In view of the foregoing, the claim against defendant is barred regardless of the probative ...


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