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In re Application of Vogel

January 15, 2009

IN THE MATTER OF THE APPLICATION OF CELIA VOGEL, SIMONA LUMERMAN, ELANA STERNBERG, AND DANIELLA VOGEL, IN THE ESTATE OF HENRY VOGEL, DECEASED,
CELIA VOGEL, SIMONA LUMERMAN, ELANA STERNBERG AND DANIELLA VOGEL, PLAINTIFFS,
v.
RICHARD D. TUNICK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony A. Scarpino, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

In an action for replevin pursuant to CPLR article 71 and other relief, transferred to this court by an order of the Supreme Court, Nassau County (Feinman, J.) dated October 16, 2007, defendants Sotheby's, Sotheby's Holdings, Inc., Sotheby's, Inc., Sotheby Parke Bernet, Inc. and Sotheby's Art Sales Corp. move pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them.

Those branches of the motion which are to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7) are denied. That branch of the motion which is to dismiss the complaint pursuant to CPLR 3211 (a)(5) as time-barred is granted to the extent that the cause of action for conversion with respect to items No.# 4, 15, 26, 42 and 43 in Schedule A of the Amended Complaint is dismissed as time-barred against the moving defendants.

At issue in this action, and a related proceeding commenced by the plaintiffs in this court pursuant to SCPA 2102 and SCPA 2105, is ownership of more than 200 works of art by Willem de Kooning (hereinafter the subject artwork). The decedent, and later defendant Marjorie Kassner ("Ms. Kassner"), as executrix of the decedent's estate, consigned some of the subject artwork to defendant Sotheby's, Inc. for auction. At least some of those consigned pieces were sold at auction.

In May 2007, the plaintiffs commenced an action in Supreme Court, Nassau County against multiple defendants, including Sotheby's, Inc. and other Sotheby's entities. Specifically, the other Sotheby's entities consist of Sotheby's, Sotheby's Holdings, Inc., Sotheby Parke Bernet, Inc., and Sotheby's Art Sales Corp. (hereinafter collectively referred to as "the other Sotheby's entities"). In their amended complaint, the plaintiffs allege three causes of action against all defendants: (1) replevin; (2) conversion; and (3) money had and received (Notice of Motion, Exhibit A).

Each defendant, including Sotheby's, Inc. and the other Sotheby's entities, separately moved in Supreme Court, Nassau County, inter alia, to transfer the action to this court. Sotheby's, Inc. and the other Sotheby's entities also moved pursuant to CPLR 3211 (a)(1) and (7) to dismiss the complaint insofar as asserted against them. By order dated October 16, 2007, the Supreme Court, Nassau County (Feinman, J.), granted the defendants' motions to transfer the action to this court pursuant to CPLR 325 (e), but it did not decide the CPLR 3211 motion to dismiss.

It is well settled that a motion to dismiss a complaint on the ground that the action is barred by documentary evidence (CPLR 3211 [a][1]) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83 [1994]).

Here, the basis of the motion to dismiss pursuant to CPLR 3211 (a)(1) is that the other Sotheby's entities were not parties to the consignment contract between the decedent and Sotheby's, Inc. or Ms. Kassner and Sotheby's, Inc. (Nicyper Affirmation, ¶ 5). Although this is true, those contracts state, in relevant part, the following: "As used herein, we', us' and ours' mean Sotheby's, Inc. and any affiliated company offering Property for sale under this Agreement" (Sotheby's Motion, Exhibit B). The documentary evidence submitted in support of the motion fails to demonstrate that none of the other Sotheby's entities offered any of the subject artwork for sale under the consignment agreement (see AG Capital Funding Partners, L.P. v State Street Bank & Trust Co., 5 NY3d 582, 591 [2005]). Therefore, the court denies that branch of the motion which is to dismiss the complaint against the other Sotheby's entities pursuant to CPLR 3211 (a)(1).

In connection with this, the court notes that it did not consider the evidence submitted by the other Sotheby's entities for the first time in its reply papers (see Osborne v Zornberg, 16 AD3d 643 [2005]; Jackson-Cutler v Long, 2 AD3d 590 [2003]; Adler v Suffolk County Water Auth., 306 AD2d 229 [2003]).

The other Sotheby's entities also move pursuant to CPLR 3211 (a)(7) to dismiss the complaint insofar as asserted against them on the ground that the complaint fails to state a cause of action against them. Again, the basis of this branch of the motion is that "none of these entities had any involvement whatsoever with the alleged sales of" the subject artwork consigned to Sotheby's, Inc. (Sotheby's Memo of Law, p. 8, fn 1). Given that the Sotheby's motion papers fail to establish that they are entitled to dismissal of the complaint based upon the documentary evidence, this argument also fails. Therefore, that branch of the motion which is to dismiss the complaint pursuant to CPLR 3211 (a)(7) is also denied.

The more novel issue is whether the claims against all of the Sotheby's entities (hereinafter collectively referred to as Sotheby's) are time-barred (CPLR 3211 [a][5]). Initially, because Sotheby's motion papers address only the cause of action for conversion, the court will address only whether that cause of action is time-barred.

It is clear that "an auctioneer may be held personally liable for conversion where the auctioneer sells property in behalf of a principal who, as it turns out, never actually had title to, or the authority to dispose of, the property," even if the auctioneer acted in good faith and without knowledge of its principal's lack of title (Parker v P & N Recovery of New York, Inc., 182 Misc 2d 342, 346 [citations omitted] [1999]). The statute of limitations applicable to a cause of action for conversion is three years (CPLR 214 [3]). The determinative issue in this case is when the statute of limitations against Sotheby's accrued.

Sotheby's contends that the three-year limitations period began to run when the decedent and Ms. Kassner consigned some of the subject artwork to Sotheby's, so that it exercised dominion and control over the artwork. They state that because this occurred no later than the last date of consignment (or April 16, 2004), and the plaintiffs filed their ...


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