Charles Edward Ramos, J.S.C.
Defendants Larry Gagosian (LG) and Gagosian Gallery, Inc. (Gagosian) (together, defendants} move to dismiss certain causes of action in the amended complaint (complaint) of plaintiff Jan Cowles, pursuant to CPLR 3211 (a) (7).
This action for conversion and replevin arises out of the alleged wrongful taking and sale of a work of art by the iconic American artist Roy Lichtenstein.
The plaintiff, Jan Cowles, is a long time collector of fine art works, and at ninety-three years old, has been incapacitated for several years. Since her deterioration, Mrs. Cowles has been represented by Lester Marks, who acts as her duly appointed attorney-in-fact. Defendant LG is a major international art dealer with galleries in New York and throughout the world. According to the complaint, Mrs. Cowles' son, Charles Cowles, himself an art dealer and gallery owner in New York City, suffered large financial losses in 2008 and as a result, was in a desperate financial condition. Unbeknownst to Mrs. Cowles, in October 2008, Charles cosigned to Gagosian for sale two major art works from Mrs. Cowles's personal collection, and secreted the sales proceeds. At issue in this action is one of the art works cosigned to Gagosian, entitled the Girl in Mirror, by Roy Lichtenstein (the Work), which is an epoxy enamel on metal, and is numbered as one from eight in the same edition. Another Girl In Mirror in the same edition had been sold in 2007 for over $4 million. Mrs. Cowles alleges that in the current market, it is worth more than $5 million.
In an effort to sell the Work, Gagosian shipped it to London for! an exhibition at Frieze, an art fair, in the middle of October 2008. Around the same time, a Gagosian employee prepared a condition report stating that the Work is in "excellent condition overall" (Amended Complaint, ¶ 18). A few days later, Gagosian shipped the Work back to its gallery in New York, accompanied by a customs invoice which valued it at $4.5 million (Amended Complaint, ¶ 19). In June 2009, Gagosian again shipped the] Work overseas to Switzerland for viewing at a prestigious art fair, and back to its gallery in London (Amended Complaint, ¶ 18,19) .
According to the complaint, LG became acutely aware of Charleses desperate financial condition, and saw an opportunity to turn a huge profit for Gagosian and make a quick sale by coaxing defendant Thomas Dean into making an outrageously low offer to purchase the Work. In an email dated July 15, 2009LG writes to Dean:
"Seller [Charles] now in terrible straights and needs cash. Are you interested in making a cruel and offensive offer? Come on, want to try?" (Exhibit A, annexed to the Baum Aff.).
On August 3, 2009, Gagosian purported to sell the Work for only $2 million to Dean, and retained an astounding $1 million in commission, despite representing to Charles at the time of the consignment that it would not be sold for less than $3 million, with Charles to receive no less than $2.5 million, and Gagosian to receive a commission of $500,000 (Amended Complaint, ¶ 15-16) .
In October 2009, Gagosian shipped the Work to Dean, with an accompanying condition report which noted that it was in "overall good condition."
From the time she discovered that the Work had been sold i without her knowledge and consent, Marks, on behalf of Mrs. Cowles, has demanded detailed accounts of the transaction. Upon investigation, Marks learned that LG purportedly represented to Charles that multiple buyers declined to purchase the Work because it was badly damaged, and ultimately convinced Charles to accept the below-market sale price of $1,000,000 for that reason (Amended Complaint, ¶ 27). Gagosian maintains in this litigation that the Work sold for a relatively low amount because it was indeed damaged. Mrs. Cowles disputes that the Work was damaged. and points to several invoices and condition reports that Gagosian had prepared in an effort to sell the Work which noted its good condition.
Mrs. Cowles served an amended complaint in February 2012, asserting causes of action against defendants for conversion, replevin, fraud, breach of fiduciary duty and unjust ...