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Barry K. Brown v. Richard Kay

February 9, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


This case involves claims relating to the art collection of the late Himan Brown ("Himan"), a well-known producer of radio and television programs. Plaintiff Barry Brown ("Barry") is Himan's long-estranged son. Barry brings claims of fraud and conversion against the executor of Himan's estate ("the Estate") and against two trusts created by Himan. In essence, Barry alleges that Himan subverted a provision of a long-ago separation agreement under which Himan and his ex-wife had provided that, upon the death of the latter of the two of them, Barry and his sister were to be bequeathed 34 specific works of art.

Defendants*fn1 move to dismiss the Complaint for failure to state a claim, for a variety of different reasons, under Federal Rule of Civil Procedure 12(b)(6), and, to the extent matters outside the pleadings are considered, for summary judgment, pursuant to Fed. R. Civ. P. 12(d) and 56. Defendants also move for dismissal under Fed. R. Civ. P. 19, for failure to join Barry's sister and the estate of his mother as necessary parties. For the reasons set forth herein, the Court dismisses both claims in the Complaint with prejudice.


A.Factual Background to Plaintiff's Claims

During a 65-year career that resulted in his induction in 1990 into the National Radio Hall of Fame, Himan produced more than 30,000 radio programs for radio networks and syndication. He also produced television series, major fundraising events, and film documentaries. He donated money and art to numerous museums and colleges. Compl. ¶ 1.

In 1933, Himan married Mildred Brown ("Mildred"). The couple had two children: Barry, the plaintiff in this case, born in 1934, and Hilda (now Hilda Brown Lapidus) ("Hilda"), born in 1936. Compl. ¶¶ 1, 15; Kramer Aff. ¶ 7 & Ex. F (hereinafter, "Separation Agreement"), at 1.

In 1967, Himan and Mildred divorced. In connection with the divorce, on October 24, 1967, they entered into a separation agreement. Compl. ¶¶ 19-22; Kramer Aff. ¶¶ 12-13; Separation Agreement. Both parties were represented by counsel in connection with that agreement. See Separation Agreement, Ex. A.*fn3

The Separation Agreement contained specific provisions relating to the couple's artwork. It provided that all art in Himan's apartment at 285 Central Park West was "his sole and exclusive property." Separation Agreement ¶ 3. It also appended two exhibits (Exhibits C and D), which are lists of artwork. Exhibit C consists of 11 single-spaced pages listing artwork; the agreement declared Himan "the sole and exclusive owner of the works of art" set out in Exhibit C. Id. ¶ 4.

Exhibit D to the Separation Agreement, which is central to this litigation, consists of two single-spaced pages listing 34 of the works of art appearing in Exhibit C. The Exhibit D works include pieces attributed to such masters as Degas, Modigliani, Picasso, and Renoir. Separation Agreement Ex. D. The agreement provided that Mildred had the right during her lifetime to possess the Exhibit D artwork. The agreement prohibited her from selling or moving this artwork. Id. ¶ 4(i).

Importantly, for the purposes of this litigation, the Separation Agreement obliged Himan to maintain a will bequeathing the Exhibit D artwork to Mildred if he predeceased her, and to Barry and Hilda, per stirpes, if he did not. Symmetrically, the Separation Agreement obliged Mildred to maintain a will providing that, if Himan predeceased her, the Exhibit D artwork would be bequeathed to Barry and Hilda, per stirpes. Id. ¶ 4(ii). Thus, the Separation Agreement provided that upon the death of the latter of their parents, Barry and Hilda were to be bequeathed the Exhibit D artwork.

In 1974, Mildred died. Compl. ¶ 25. Under the Separation Agreement, Himan thus regained the right to possess the 34 pieces of artwork listed on Exhibit D. Separation Agreement ¶¶ 3-4. Himan thereafter possessed the Exhibit D artwork until his death. Compl. ¶ 25.

In June 2010, Himan died. Compl. ¶ 2; Kramer Aff. ¶ 19 & Ex. D. Himan's purported last will and testament (dated October 20, 2004) named Richard Kay as executor; the Surrogate's Court of New York County has appointed Kay preliminary executor of the Estate. Contrary to the terms of the Separation Agreement, the will did not bequeath anything to Barry or Hilda. Instead, it bequeathed Himan's entire estate to Radio Drama Network, a private charitable foundation. Barry has interposed objections to his late father's will. Compl. ¶¶ 3-5, 28; Kay Aff. ¶ 34 & Ex. E.*fn4

B.Plaintiff's Claims of Fraud and Conversion

Barry brings two claims against the Estate -- in Count One, for fraud, and in Count Two, for conversion. Both relate to the Exhibit D artwork.

1. The fraud claim

Barry's fraud claim alleges that, before entering into the Separation Agreement, Himan had represented to Mildred that the works of art listed in Exhibit D were authentic, original pieces that had "significant value," and that "this value would ultimately be received by her children, including Plaintiff." Compl. ¶¶ 35, 37, 57; id. ¶ 41. Himan also sent an appraiser to Mildred's home, in 1971, to appraise the Exhibit D artwork; the Complaint alleges that this functioned as a further representation to Mildred that the Exhibit D artwork had substantial value. Id. ¶¶ 42-43. On the basis of Himan's representations, Mildred entered into the Separation Agreement. Id. ¶¶ 37, 59.*fn5

In fact, the Complaint alleges, Himan's representations to Mildred were false. A significant number of the artworks listed in Exhibit D were "forgeries" and of "little or no value." Id. ¶¶ 45, 50. As a result of Himan's misrepresentations, however, Mildred never discovered that these artworks were forgeries; Barry did not discover this until December 2010. Id. ¶ 45. Himan's misrepresentations were reckless or intentional and were designed to deceive Mildred and, eventually, to deprive his children of valuable assets. Id. ¶¶ 27, 58, 60.

As to specific artwork, the Complaint alleges, 26 of the 34 artworks listed in Exhibit D are currently in storage in Long Island City, New York. None of these are authentic and they have "little or no value." Id. ¶¶ 47-48, 50. Two others were distributed to Mildred's kin after her death -- a collage by Barry's sister, Hilda, which was returned to her, and a "Portrait of Mildred," which was given to Mildred's granddaughter, Barrie Brown. Id. ¶ 51(a)-(b). Another ("Rocks on Riviera," by Armand Guillaumin) was sold at Christie's on November 4, 2010, for $120,000, with the proceeds divided between Barry and his sister. Id. ¶ 51(c). Four others are missing, including artworks attributed to Edgar Degas, Chaim Gross, and August Renoir. Id. ¶ 52.*fn6 The final artwork, "La Maternite," a 1921 work by Pablo Picasso, is authentic. Id. ¶ 54. Barry alleges, upon information and belief, that the "replacement value" of the missing Renoir, Degas, and Gross pieces is $755,000; and that the value of the originals of the 26 forged artworks, would be approximately $26,998,750. Id. ¶¶ 53, 55-56. Barry alleges injury to himself in his capacity as a beneficiary of the Separation Agreement; he seeks damages for himself from the Estate of "not less than $27,754,750." Id. ¶ 63. Barry also seeks, in the event that the Estate is unable to satisfy such a judgment, to recover the same amount from the Revocable Trust and the Charitable Trust. Barry alleges that during his lifetime, Himan had transferred "the major bulk of his estate" to the Revocable Trust. Id. ¶ 64. Barry makes no allegations relating to the Charitable Trust.

2. The conversion claim

Barry's conversion claim is an exercise in pleading in the alternative: It postulates facts contrary to those alleged in the fraud claim. The conversion claim begins:

In the event that it is conceivable that Himan Brown did deliver original and authentic Artworks to Mildred Brown at the time they entered into the Separation Agreement, then he subsequently, upon information and belief, had such Artworks copied so that Plaintiff would be left with worthless artworks at the time of Himan Brown's death.

Compl. ¶ 66.

To this end, the conversion claim alleges, Himan "retook possession" of the authentic Exhibit D artworks after Mildred's death, id. ¶ 67, and thereafter "creat[ed] forgeries" that he knew would eventually "depriv[e] Plaintiff of his ownership interest in the Artworks." Id. ¶ 73. The claim that the Exhibit D artworks were authentic but replaced by "worthless" works after Mildred's death is based solely on "information and belief." Barry does not allege when any such alleged forging was done, save to assert that in 2006, Himan sought to engage an artist named Stephen Gaffney to produce a painted replica of a single, unspecified artwork. Id. ¶ 68.

The conversion count seeks the same damages (no less than $27,754,750) as does the fraud count, against the same three defendants. Id. ¶ 77. The conversion count does not contain any factual allegations regarding the Revocable Trust or the Charitable Trust.

C.Defendants' Motions to Dismiss

Defendants move to dismiss Barry's fraud and conversion claims on multiple grounds. Because some require consideration of materials outside the pleadings, defendants ask that the motion to dismiss, where appropriate, be converted into one for summary judgment. Mem. of Law in Supp. of Defs.' Mot. to Dismiss ("Defs.' Mem.") 4 n.5; Reply Mem. of Law in Further Supp. of Defs.' Mot. to Dismiss ("Defs.' Reply Mem.") 1 n.1. Specifically, defendants bring to the Court's attention two prior events bearing on Barry's legal rights with respect to the Exhibit D artwork.

First is a 2002 lawsuit that Barry brought in New York State Supreme Court in Manhattan against Himan ("2002 Lawsuit"). There, Barry made claims, among others, relating to the ownership of the Exhibit D artwork. In connection with that lawsuit, Defendants submit Barry's Complaint in that lawsuit, the Court's order dismissing the claims in that lawsuit, and a transcript of oral argument explaining the basis of the dismissal of one such claim. Second is an August 2010 agreement ("2010 Release Agreement") between the Estate, the Revocable Trust, and Barry. That agreement resolved (and released the Estate and Revocable Trust as to) all of Barry's claims as to the Exhibit D artwork, subject to Barry's reservation of rights to bring claims in three discrete factual scenarios. Although both the 2002 Lawsuit and the 2010 Release Agreement are, to say the least, highly relevant to his present claims, Barry's Complaint does not disclose any of these salient legal events.*fn7

The relevant facts, as revealed by defendants' undisputed submissions, ...

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