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Jeanne Marchig and the Marchig Animal Welfare Trust v. Christie's Inc

February 1, 2011

JEANNE MARCHIG AND THE MARCHIG ANIMAL WELFARE TRUST, PLAINTIFFS,
v.
CHRISTIE'S INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

The plaintiffs, Jeanne Marchig ("Marchig") and the Marchig Animal Welfare Trust ("the Trust"), sued defendant Christie's, Inc., ("Christie's") alleging five causes of action arising from the defendant's 1998 sale of a drawing owned by Marchig and her late husband. The plaintiffs allege that the drawing was sold by the defendant at a public auction for $21,850, but was later determined to be the work of Leonardo da Vinci and estimated to be worth over $100 million. Amended Complaint ¶¶ 55, 63-64, 81-82, Marchig et al. v. Christie's Inc., No. 10 Civ. 3624 (S.D.N.Y. August 13, 2010) ("Compl.").

The defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is granted.

I.

The following facts are taken from the plaintiffs' amended complaint, and are accepted as true for purposes of this motion to dismiss. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998).

In 1966, Marchig and her husband met Noel Annesley, an expert in old master drawings at Christie's. Compl. ¶¶ 20, 22. Between 1969 and 2009, Marchig and her husband (until his death in 1983) consigned dozens of works to Christie's, to be auctioned on their behalf. Compl. ¶ 26 & Exh. A.

In 1997, Marchig consigned a pen-and-ink drawing ("the Drawing") to Christie's for sale. Marchig and Christie's entered into a consignment agreement with respect to the Drawing in August 1997. Compl. Exh. G. At the time of the consignment, Marchig informed Christie's that her late husband believed the Drawing to be the work of Domenico Ghirlandaio, an early Italian Renaissance painter and teacher of Michelangelo. Compl. ¶¶ 4-5,42. The Drawing was examined by Francois Borne, the resident expert in old master drawings at Christie's, who concluded that the Drawing was a nineteenth-century German work of unknown authorship. Compl. ¶¶ 42-44. In a letter to Marchig, he wrote: "Your superb German drawing in the taste of the Italian Renaissance fascinates me. I think it an object of great taste and I would be ready to try our luck with an estimate of $12,000 to [$]15,000 in New York. As I told you I would be tempted to change the frame in order to make it seem an amateur object of the 19th century and not an Italian pastiche." Compl. ¶ 45.

Marching acceded to Borne's attribution, and the Drawing was listed in the auction catalog as "the property of a lady" and "German, 19th Century." Compl. ¶¶ 47, 53 & Exh. J. The Drawing was sold at public auction in January 1998 for $21,850. Compl. ¶¶ 54-55. Marchig received the proceeds from the defendant, less the defendant's commission, and donated the proceeds to the Trust. Compl. ¶ 56.

When Marchig sent the Drawing to the defendant, it was in an Italian frame. Compl. ¶ 49. The frame was replaced, and the Drawing was sold in a different frame without Marchig's knowledge or consent. Compl. ¶¶ 49-51. Christie's did not return the original frame to Marchig. Compl. ¶ 52.

In July 2009, Marchig received a telephone call from Annesley, informing her that the Drawing had been attributed to Leonardo da Vinci. Compl. ¶ 57. This attribution has since been supported by the work of many experts in the field. Compl. ¶¶ 61-78. One London art dealer has estimated the Drawing's value at over 100 million. Compl. ¶ 82 & Exh. K at 3.

On May 3, 2010, Marchig brought this action alleging (1) breach of fiduciary duty, (2) breach of warranty, (3) negligence, and (4) negligent misrepresentation. Complaint at 11-15, Marchig et al. v. Christie's Inc., No. 10 Civ. 3624 (S.D.N.Y. May 3, 2010). On May 23, 2010, Christie's moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiffs opposed the motion, and sought leave to amend the complaint. On August 5, 2010, the Court granted the plaintiffs' request, and denied the motion to dismiss without prejudice as moot. On August 13, 2010, the plaintiffs filed an amended complaint in which they re-asserted the four claims they had made in the original complaint, and added a fifth, for conversion of the frame the Drawing was in when it was delivered to Christie's. Christie's has moved to dismiss the amended complaint.

II.

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the Complaint are accepted as true. Grandon, 147 F.3d at 188. In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. Gant v. Wallingford Bd. of Educ., 69F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A claim has facial ...


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