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Green v. McClendon

September 20, 2010


The opinion of the court was delivered by: John G. Koeltl, District Judge


Richard Green (Fine Paintings) ("Green" or "the plaintiff") is an art dealer who offered a painting by Pierre Bonnard ("the painting") for sale at the 2007 International Fine Art Fair in New York. Green alleges that it entered into an agreement to sell the painting to Doyle ("Mr. McClendon") and Mary Alice McClendon ("Ms. McClendon") (collectively, "the McClendons") when the McClendons visited his booth at the Fair. It is undisputed that the McClendons paid Green $500,000 towards the agreed upon purchase price of $4.2 million, with the balance due in a year. Jonathan Green agreed to deliver the painting to the McClendons' Florida home once payment was complete. The McClendons have subsequently divorced, and have not paid the remainder of the balance on the painting. Green retains possession of the painting at this time.

Green brought this action seeking the full price of the painting. Ms. McClendon filed a motion to dismiss, arguing among other things that the alleged contract was merely an oral agreement and not enforceable under the Statute of Frauds. The Court denied the motion to dismiss, finding among other things that three emails between Green and Ms. McClendon, taken together, were a writing sufficient to meet the requirements of the Statute of Frauds.

Mr. McClendon recently died, and Green decided not to pursue this action against any successor to Mr. McClendon and to proceed solely against Ms. McClendon. Green and Ms. McClendon had previously made cross-motions for summary judgment that were withdrawn upon Mr. McClendon's death and have now been reinitiated. Green now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Ms. McClendon cross move for summary judgment.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Robins v. NYC Bd. of Educ., No. 07 Civ. 3599, 2010 WL 2507047, at *1 (S.D.N.Y. June 21, 2010).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Robins, 2010 WL 2507047, at *1.


The following facts are undisputed unless otherwise noted. The McClendons are sophisticated art collectors who have both served on the boards of various museums and have together purchased more than 50 works of art worth over $10 million. (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1 Stmt.") ¶¶ 5-12, Oct. 23, 2009; Def. Mary Alice McClendon's Resp. to Pl.'s Local Civil Rule 56.1 Statement of Facts ("Def.'s 56.1 Stmt.") ¶¶ 5-12, Nov. 20, 2009.) When purchasing art, the McClendons would sometimes make an initial payment followed by a second payment of the remaining balance they owed for the work. (Pl.'s 56.1 Stmt. ¶ 13, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶ 13, Nov. 20, 2009.) Ms. McClendon could not recall an instance when the couple signed papers at the time of an art purchase (Pl.'s 56.1 Stmt. ¶ 14, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶ 14, Nov. 20, 2009), although she did produce a handful of invoices signed by Mr. McClendon. (Drab Decl. Ex. A, Nov. 20, 2009.)

Green, headquartered in London, regularly displays and sells artwork in various locations. (Pl.'s 56.1 Stmt. ¶ 15, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶ 15, Nov. 20, 2009.) The plaintiff displayed the painting at issue here, an 1892 Pierre Bonnard painting. The painting had been purchased in November 2006 by Jonathan Green for $3,712,000. (Pl.'s 56.1 Stmt. ¶¶ 15-16, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 15-16, Nov. 20, 2009.)

On May 12, 2007 the McClendons visited Green's booth at the Fine Art Fair and expressed their interest in the painting to David Green, who told them about the history of the work and allowed them to inspect it with an ultraviolet light. (Pl.'s 56.1 Stmt. ¶¶ 18-21, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 18-21, Nov. 20, 2009.) David Green introduced the McClendons to Jonathan Green, and they told him that they would be "delighted" to buy the painting for $4.2 million. (Pl.'s 56.1 Stmt. ¶¶ 22-24, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 22-24, Nov. 20, 2009.)

The parties agree that Mr. McClendon wired $500,000 to the plaintiff in July 2007 and that the balance of the purchased price, $3.7 million, was due on May 12, 2008. (Pl.'s 56.1 Stmt. ¶¶ 25-27, 34, 42, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 25-27, 34, 42, Nov. 20, 2009.) Ms. McClendon later testified that this was a "firm agreement" to "purchase the painting after a year." (Pl.'s 56.1 Stmt. ¶ 70, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶ 70, Nov. 20, 2009; Adelman Decl. Ex. B at 10-11, Oct. 23, 2009.) A Green employee then placed a red dot on the caption next to the painting, signifying that the work had been sold. (Pl.'s 56.1 Stmt. ¶ 28, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶ 28, Nov. 20, 2009.) The plaintiff argues that the $500,000 payment was the first instalment of the purchase price, but Ms. McClendon now argue that the payment was merely to hold the painting for a year but not a firm commitment to purchase the painting at the end of that period. (Pl.'s 56.1 Stmt. ¶¶ 25, 29, 43-44, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 25, 29, 43-44, Nov. 20, 2009.)

Green was to deliver the painting to the McClendons' Florida home after the balance was paid in full, but the painting was never shipped to Florida because the balance was never paid. (Pl.'s 56.1 Stmt. ¶¶ 31-32, Oct. 23, 2009; Def.'s 56.1 Stmt. ¶¶ 31-32, Nov. 20, 2009.)

On May 13, 2007 Green delivered an envelope to the McClendons' hotel in New York containing a description of the work and a cover letter signed by David Green congratulating the defendants on "the purchase of the painting," "confirm[ing] the purchase price of $4,200,000," referring to the $500,000 payment as a "deposit" with the balance due on May 12, 2008, and confirming that the painting would be held in Green's London headquarters until the balance was paid and would then be delivered to the McClendons' home in ...

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