United States District Court, S.D. New York
Flower, Medalie & Markowitz, by Edward Flower, Esq., Bay Shore, NY, for Plaintiff.
Joseph A. Kinney, Pinehurst, NC, pro se.
OPINION AND ORDER
CEDARBAUM, District Judge.
ACA Galleries, Inc. (" ACA" ), a New York corporation, sues Joseph Kinney, a citizen of North Carolina, for selling it a forged Milton Avery painting. The complaint contains three claims. Although count one alleges breach of contract, ACA's papers in support of its motion for summary judgment disclose that ACA is really seeking rescission of the contract under the doctrine of mutual mistake. Counts two and three allege fraudulent conduct by Kinney. ACA seeks to recover the $200,000 that it paid for the painting, plus attorney's fees and punitive damages. ACA has now moved for summary judgment only on its contract claim. Kinney has moved for summary judgment on all of ACA's claims. For the reasons that follow, ACA's motion is denied, and Kinney's motion is granted.
The following facts are undisputed. In March of 2007, Kinney contacted ACA via email and informed it that he was selling a Milton Avery oil painting, entitled " Summer Table, Gloucester." After some negotiation, Kinney shipped the painting from North Carolina to a warehouse in New York to exhibit the work and allow ACA, and any other prospective buyer, to inspect it. Jeffrey Bergen, the president and chief operating officer of ACA, did inspect the painting and determined it was a genuine Milton Avery work. The parties agreed on a purchase price of $200,000.
The bill of sale describes the painting as " Milton Avery Oil on Canvas."
Shortly after ACA wired the purchase price to Kinney and Kinney released the painting to ACA, ACA had the painting examined by the Milton and Sally Avery Arts Foundation (the " Avery Foundation" ). The Avery Foundation determined that the painting was not authentic. Bergen informed Kinney of this determination and demanded return of the purchase price. Kinney initially promised that he would refund ACA's money, but never did.
Summary judgment should be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact exists when the evidence is such that a reasonable finder of fact could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In deciding whether a genuine dispute exists, a court must " construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).
I. Contract Claim
ACA argues that it is entitled to rescission of the contract under the doctrine of mutual mistake, namely that both parties were mistaken as to the authenticity of the painting. There are disputed issues of fact regarding Kinney's knowledge of the Avery painting's authenticity, but in order to pursue rescission by mutual mistake, ACA states that it assumes Kinney was unaware that the painting was inauthentic. Whether or not an issue of fact exists with respect to Kinney's knowledge, summary judgment must be granted for Kinney and against ACA on the contract claim because the doctrine of ...