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David Mirvish v. Hanno D. Mott

February 16, 2012

DAVID MIRVISH, APPELLANT,
v.
HANNO D. MOTT, &C., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Jacques Lipchitz, the Russian-born cubist sculptor, died in 1973 at the age of 81. He was survived by his wife, Yulla H. Lipchitz, who inherited many valuable works of art from her husband, including "The Cry," a 1,100-pound bronze sculpture, cast three of seven, 1928-1929. After she was widowed, Yulla began a relationship with Biond Fury as early as 1980; the two of them lived together for 17 years prior to her death on July 23, 2003 at the age of 92.

From time to time, Yulla would make gifts to Fury, including art created by her late husband. She memorialized these gifts by giving Fury a picture of the artwork with a writing describing the piece and declaring that it was a gift. After Yulla's death, Fury produced a photograph of "The Cry" with the following notation on the back, in Yulla's handwriting: "I gave this sculpture 'The Cry' to my good friend Biond Fury in appreciation for all he did for me during my long illness. With love and my warm wishes for a Happy Future, Yulla Lipchitz/October 2, 1997, New York." At the time, "The Cry" was apparently in storage in New York in the custody of the Marlborough Gallery, Inc. (Marlborough), the Manhattan art dealer.*fn1

About a year later, the French minister of culture and communication approached Pierre Levai, Marlborough's president, to ask about the possibility of placing "The Cry" on exhibit in Paris for a period of five years, "with a view to its ultimately being purchased." The minister proposed to include "The Cry" in a group of modern and contemporary works to be installed in the Tuileries Gardens near the Louvre Museum. On November 11, 1998, Levai wrote the minister that he had discussed the French government's request "with the Lipchitz family," who agreed to loan the sculpture for three years, unless Yulla died earlier. At the conclusion of the loan, Levai continued, the family was "prepared to negotiate a sale of the work," but if "[a]t the conclusion of the loan, . . . the sculpture [was] not purchased, it [was] to be returned to the Lipchitz family in New York at the borrower's cost."

Levai discussed the loan of "The Cry" to the French government only with Mott, never with Yulla. Mott, who at the time did not know about the handwritten gift instrument conveying "The Cry" to Fury, is the executor and a residuary beneficiary of one third of his mother's estate. He is an attorney, and he handled Yulla's financial affairs and held power of attorney from her for many years prior to her death. Mott also performed legal work for Marlborough, beginning as early as 1980.

According to Mott, he talked to his mother about the loan and, on her behalf, "consented that ['The Cry'] should be put on display in the [Tuileries Gardens] in Paris and it was and it had [Yulla's] name on the loan." The French government at some point also inquired if, once the exhibition was over, Yulla was willing to make a gift of "The Cry." Mott testified that Yulla told him "No, of course not, but if they want to buy it, they can buy it" -- i.e., that "we would give . . . a right of first refusal." "The Cry" was in Paris, subject to this agreement, when Yulla died. Her will did not mention "The Cry" or any other specific work of art. Fury claims not to have known that the sculpture was loaned to the French government in 1998.

On March 9, 2004, Fury's attorney sent a letter to Mott's attorney demanding immediate delivery of "The Cry" to Fury; he enclosed a copy of the deed of gift. Fury's attorney sent a second letter on September 30, 2004, noting that there had been no response to "the March 9, 2004 demand to deliver 'The Cry' to Mr. Fury." Then on January 12, 2005, Fury's attorney wrote yet again, complaining that he had "not received any response to [his] repeated written demands for delivery of 'The Cry' which was indisputably gifted to Mr. Fury by Yulla Lipchitz"; renewing the demand; and warning that "[f]ailure to deliver [the sculpture would] require commencement of a proceeding under SCPA 2105." This provision authorizes a person with a claim to property or the proceeds thereof alleged to be in a fiduciary's possession or control to petition Surrogate's Court for an order requiring the fiduciary to show cause why he should not deliver the property or proceeds (see SCPA 2105 [1]). Upon return of process, the surrogate must "determine the respective interests of the parties in the property or the proceeds or value thereof and make a decree accordingly" (SCPA 2105 [3]).

Mott claims to have sold "The Cry" and three other sculptures in a package deal in July 2004 to Marlborough International Fine Art Establishment (Marlborough International) for $1 million. He testified that he did this because these four works had been on consignment for a very long time,*fn2 and the estate needed the cash; moreover, he "did not believe that there was any merit to [Fury's] claim." But in a letter to the French minister dated January 10, 2005, six months after the purported sale of "The Cry" to Marlborough International, Mott informed the minister that Yulla had passed away in 2003; noted that "the agreement for the loan also provided that at its conclusion the Lipchitz family would be prepared to negotiate a sale of the Sculpture"; and inquired "[o]n behalf of the family . . . whether the Ministry [had] any interest in acquiring the Sculpture at this time before arrangements are made for its return."

On September 15, 2005, Fury sold his interest in "The Cry" to David Mirvish, an art collector and gallery owner in Toronto, for $220,000. On October 4, 2005, Mirvish's attorney notified Mott of the sale, and demanded that he let Mirvish know where the sculpture was and "allow [him] to take possession of it within 10 days of [the] letter"; and "[p]ending resolution of this matter, . . . make no sale or other transfer of the sculpture nor remove it from its present location." In a letter dated October 14, 2005, the estate's attorney refused this demand, asserting that "the Estate was the true owner of ["The Cry"], which was never subject of a valid inter-vivos gift from [Yulla] to Biond Fury"; on October 20, 2005, he additionally informed Mirvish's attorney that the sculpture "had been on consignment to a gallery for many years and was sold over a year ago."

By petition dated October 26, 2005, Mott, as the executor of Yulla's estate, brought an action against Fury, asking Surrogate's Court for a determination pursuant to SCPA 209 (4) that the estate "was the rightful owner of, and . . . legitimately sold and passed title of the Cry."*fn3 Section 209 (4) empowers Surrogate's Court "[t]o determine a decedent's interest in any property claimed to . . . be property available for distribution under [the] will . . . , and to determine the rights of any persons claiming an interest therein, as against the decedent, or as between themselves, and to construe any instruments made by [decedent] affecting such property."

Mirvish subsequently commenced this action in Surrogate's Court against Mott, individually and as executor of Yulla's estate, by petition dated July 31, 2006. He asserted various causes of action against Mott, the estate or both; specifically, he alleged conversion; sought to impose a constructive trust on proceeds from the sale of "The Cry" received by the estate; asked for an order pursuant to SCPA 2105 compelling delivery of the property or the proceeds from its sale; alleged replevin; and demanded an order pursuant to SCPA 2102*fn4 disclosing the sculpture's whereabouts. In September 2006, Mott filed an answer that raised a statute-of-limitations defense.

Upon Mirvish's application, Surrogate's Court issued an order dated September 12, 2007 directing Mott to hold in escrow the $1 million that he "received on his alleged sale of The Cry, pending resolution of the conflicting claims of ownership" (2007 NY Misc LEXIS 7111 at *8 [Sur Ct NY County 2007]). The surrogate noted "that on one hand [Mott] claim[ed] to have sold The Cry in 2004, while on the other hand he subsequently corresponded with the French government presenting himself as still having control over the statue" (id. at *3-*4). She concluded that equitable relief was warranted in view of these "discrepancies in [Mott's] assertions regarding his control over, and ownership of[] The Cry, coupled with his obvious willingness to ignore claims which he on his own determined to be invalid without first seeking judicial determination" (id. at *5).

By letter dated September 19, 2007, Mirvish's attorney notified Surrogate's Court that his client had filed suit in Supreme Court in June 2007 against Marlborough and Marlborough International for "among other things, conversion relating to the July 2004 sale of 'The Cry' by Hanno Mott, on behalf of the Estate, to Marlborough International, and the subsequent transfer of 'The Cry' to Switzerland in 2006." He informed the surrogate that this lawsuit had been settled almost immediately, on August 23, 2007, and "[p]ursuant to the settlement, the July 2004 sale was rescinded and The Cry . . . returned to New York [where it was] being held in escrow pending [her] determination of the ownership issue."

Mott, as executor of Yulla's estate, joined the settlement agreement, thereby agreeing to be bound by paragraphs 4 and 6 through 16 inclusive (with one exception not relevant here).*fn5 Notably, paragraph 4.b. of the agreement states that the escrow agent shall hold "The Cry" and a disclaimer of ...

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