Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 1, 2007, which granted defendants' motion to dismiss the complaint, affirmed, without costs.
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 Official Reports.
Tom, J.P., Andrias, Nardelli, Catterson, Moskowitz, JJ.
Mandarin Trading Co. seeks damages for losses allegedly sustained as a result of its reliance on an appraisal letter, dated July 28, 2000, written by defendant Guy Wildenstein, president of Wildenstein & Co., Inc., estimating the value of Paysage aux Trois Arbres, an 1892 painting by Paul Gauguin, at between $15 and $17 million.
It is undisputed that sometime in July 2000 Patrick Blum, a director of Mandarin's parent company Phoenix Capital Reserve Fund, was approached about purchasing art for investment purposes. He was also advised by Amir Cohen that the owner of Paysage aux Trois Arbres was looking to sell it. The dissent is of the opinion that the first two causes of action for fraudulent misrepresentation are sufficiently pleaded because Mandarin alleges that it sought an appraisal before purchasing the painting and that Wildenstein issued a misleading appraisal upon which Mandarin relied. However, missing from that conclusion is any basis for connecting Mandarin to Wildenstein. Mandarin alleges that Cohen represented to Blum that he could arrange the sale for a success fee that would be based on Mandarin's resale of the painting at auction. Cohen agreed to get an appraisal and recommended Wildenstein, a world renowned expert on Gauguin.
There is no indication who first approached Blum, although it most likely was Cohen, nor is there any allegation that Blum inquired as to who the unidentified owner was. Nor is there any allegation or evidence as to who Amir Cohen is and no allegation that he acted for or is in any way related to Guy Wildenstein. Likewise, there is no allegation or evidence as to who owned or controlled Calypso Fine Art Ltd., which actually delivered the painting to Mandarin in return for its payment of $11.8 million, or that it was in any way related to Wildenstein. Defendants presented documentary evidence that, on July 28, 2000, Guy Wildenstein wrote to Michel Reymondin, stating that the painting was well known to him since his firm had once sold it, and that he thought that in the current market the painting was worth between $15 million and $17 million. However, there is no allegation in the complaint or any evidence in the record as to who Reymondin is; who, if anybody he represented; whether he is related in any way to Wildenstein; and whether Wildenstein knew or had reason to know that his opinion as to the value of the painting was being solicited for purposes of its sale to anyone, let alone Mandarin, or that Mandarin, or any other person, would rely upon his opinion in deciding to buy the painting. For all we know, an opinion as to the painting's value may have been solicited for purposes of insurance coverage or for tax reasons.
The dissent states that Mandarin alleges that the appraisal was prepared at its request. Again, however, Mandarin fails to allege or otherwise establish to whom that request was made. If it was made to Cohen, which is most likely since he offered to get one, did Cohen then ask Reymondin to ask Wildenstein? If so, did Cohen tell Reymondin to tell Wildenstein that he was soliciting his opinion for someone, who wished to buy the painting, even if the prospective buyer wished to remain anonymous?
On August 10, 2000, Christie's International agreed to present the painting at its November 8, 2000 auction, for a price estimated at between $12 and $16 million and a reserve price, i.e., the price below which the painting would not be sold, set at $12 million. Mandarin then purchased the painting, from a nonparty entity, for $11.3 million. However, Christie's was unable to sell the painting, because the high bid was only $9 million.
The Wildenstein appraisal letter, which did not indicate the purpose for which the appraisal was given, was addressed to a nonparty whose relationship with Mandarin is not identified in the complaint and who is alleged on appeal to be an intermediary. The complaint alleges that defendants provided an inflated appraisal figure because they had an ownership interest in the painting; that Mandarin was unaware of defendants' interest in the painting; that defendants received amounts in excess of the painting's true market value; and that Mandarin has been unable to sell the painting for an amount even approaching the Wildenstein appraisal figure.
The complaint fails to state a cause of action for fraudulent misrepresentation, because the appraisal consists of opinion, which is not actionable (compare Jacobs v Lewis, 261 AD2d 127 ). The appraisal contains no facts that are alleged to have been misrepresented (see Rodin Props.-Shore Mall v Ullman, 264 AD2d 367 ; Kimmell v Schaefer, 224 AD2d 217 , affd 89 NY2d 257 ). The parties had no relationship with each other, and there was no indication of the purpose of the appraisal, which was not alleged to have been inconsistent with other information provided by defendants (compare Cristallina v Christie, Manson & Woods Intl., 117 AD2d 284, 294-295 ). Moreover, since the complaint does not allege that defendants were even aware of Mandarin's existence, it fails to state that the appraisal was made to induce Mandarin's reliance, a necessary element of fraudulent misrepresentation (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421-422 ) and fraudulent concealment (see Swersky v Dreyer & Traub, 219 AD2d 321, 326 ).
The complaint also fails to state a cause of action for negligent misrepresentation, because, without any knowledge on defendants' part of Mandarin's existence or the purpose for which the appraisal was to be used, there could be neither privity of contract between the parties nor a relationship so close as to approach privity (see Parrott v Coopers & Lybrand, 95 NY2d 479, 483 ; Ravenna v Christie's Inc., 289 AD2d 15 ).
Ravenna is a case directly on point. There, at a single meeting with an old master paintings specialist at Christie's, the specialist gave the owner erroneous information regarding the provenance of a painting after being shown photographs of the painting. This Court dismissed the complaint, finding that there was no allegation that Christie's was retained or paid for the advice and no allegation of a prior or subsequent dealings with Christie's. As here, all that could be gleaned from the complaint was that Christie's gave gratuitous advice based on a walk-in inquiry. Such a one-time meeting, the Court found, which did not even create a business relationship, cannot be said to have created a relationship of trust and confidence. Although it was undisputed that the specialist was aware that plaintiff would rely upon his advice, that fact alone was found to be insufficient to state a claim of negligent misrepresentation. Here, on the other hand, we have an even stronger case for dismissal. Here, there is no allegation or evidence that Wildenstein even knew of Mandarin's existence (by name or anonymously) or that Mandarin or any other person would rely upon his opinion to buy the painting. The dissent attempts to distinguish this case from Ravenna because here there is an allegation that the appraisal was made for a prospective buyer of a painting in which the appraiser had an undisclosed interest and that this Court noted in Ravenna that a business relationship had not been created. It suggests that discovery will explore the nature of Wildenstein's relationship, if any, with Mandarin; however, the plaintiff in Ravenna made the same argument, which was found without merit. As this Court stated: "[t]he mere hope that discovery might provide some factual support for a cause of action is insufficient to avoid dismissal of a patently defective cause of action" (id. [citation omitted]).
Because the existence of a valid and binding contract is not alleged, the complaint fails to state a cause of action for either breach of contract (see Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786 ) or breach of the implied covenant of good faith and fair dealing (see American-European Art Assocs. v Trend Galleries, 227 AD2d 170 ).
Moreover, despite allegations that defendants failed to disclose their ownership in the painting and intentionally inflated their appraisal of its value, causing Mandarin to be misled as to the painting's value and to pay an inflated price for it, and that defendants or entities related to them received a large portion of the higher-than-market purchase price, the complaint fails to state a cause of action for unjust enrichment. "The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (see Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 , cert denied 414 US 829 ). As found by the motion court, under the facts alleged Mandarin was not entitled to rely on Wildenstein's appraisal, and even if defendants received a benefit from Mandarin, it has not shown that any enrichment was unjust, especially because Mandarin could have, ...