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Davidson v. Perls

Supreme Court, New York County

December 23, 2013

Sandra Calder Davidson, MARY CALDER ROWER and SHAWN DAVIDSON, as Executors of the Estate of Alexander Calder, Deceased, Plaintiffs,
Katherine Perls, individually, and as Executrix of the Estates of Amelia B. Perls and Klaus G. Perls, THE PERLS FOUNDATION, JANE DOE a/k/a MADAME ANDRE and LENNART BRABERG, Defendants.

Unpublished Opinion

For plaintiffs, Aaron Richard Golub, Esquire, PC, Nehemiah Glanc of counsel.

For defendants, Eaton & Van Winkle LLP, Steven Wolfe.

Shirley Werner Kornreich, J.

This action arises from the relationship between Alexander Calder (Calder), an artist, and the Perls Galleries (the Gallery), his dealer. Calder and the owners of the Gallery are deceased. The action is brought by the executors of the Calder estate against the estates of Klaus Perls (Klaus) and his wife, Amelia (Dolly), and related entities and individuals. Plaintiffs move to amend their complaint. Defendants oppose and cross-move to dismiss. For the reasons stated below, the court denies plaintiffs' motion, grants defendants cross-motion, and dismisses the action with prejudice.

I. Background and Procedural History

Calder was a 20th century American artist of great renown. Prior to 1954, Calder used the Curt Valentin Gallery as his exclusive American dealer (complaint, ¶ 14). After Mr. Valentin's death, Calder replaced the Curt Valentin Gallery with the Gallery, a relationship that was maintained until Calder's death in 1976 (complaint, ¶ 14). The Gallery, a partnership owned by Klaus and Dolly was operated by them with the assistance of, among others, their daughter Katherine and an individual named Douglas Mayhew. It was dissolved in 1997, and Dolly died in 2002 (id. at ¶¶ 11—12; amended compl.). Klaus died in 2008 (supra at ¶ 11). Katherine became the executrix of both their estates.

In the course of his life, Calder consigned hundreds of works to the Gallery. The relationship between Calder and the Perls was close, and there was a great deal of personal as well as business correspondence between them, some of which concerned the disposition or ownership of Calder's works (the Correspondence) (id. at ¶¶ 14—18). After Calder's death, the Calder Foundation, [1] not a party to this litigation, set out to prepare a complete catalogue of Calder's work, known as a "catalogue raisonné" (id. at ¶ 37). In connection with this effort, between 1987 and 1997, the Gallery rendered to the Calder Foundation what it claimed was a complete inventory of Calder's works (id.). However, in or around May 2010, the Calder Foundation was contacted by an art dealer seeking to obtain a "registration number" for a Calder work known as "Standing Constellation", which the dealer had purchased from a New York gallery; the gallery had received it on consignment from the Perls Foundation (id. at ¶ 36). Neither the Perls Foundation nor any of the other defendants had disclosed to plaintiffs that they were in possession of this work; plaintiffs allege that the work was consigned to the Gallery by the artist during his lifetime (id. at ¶¶ 37, 40).

Some months later, in October 2010, plaintiffs [2] commenced this action against Katherine, the Perls Foundation, and Mayhew, as well as Roberto Caballero, Lennart Braberg (Katherine's companion), and "Madame Andre", an alleged citizen and resident of Switzerland (id. at ¶ 2). The complaint contends that defendants were in possession of certain property that was rightfully plaintiffs', namely the Correspondence (including correspondence between Calder and Valentin), certain instruments known as "signing wires" used by Calder to stamp his name on metal works of art, and other Calder works on paper related to mobiles and choreography (id. at ¶ 22). Plaintiffs also claim that Mayhew and Caballero were in possession of or had disposed of seventeen enumerated Calder works which were rightfully theirs, while the Perls Foundation, Katherine, Braberg and "Madame Andre" were in possession of or had disposed of fifteen enumerated Calder works which also rightfully belonged to plaintiffs (complaint, ¶¶ 27—34). [3] The complaint posits causes of action for replevin, conversion and breach of bailment against the defendants and seeks to assert a cause of action for fraud against all defendants for concealment of their possession of "Standing Constellation". Katherine, the Perls Foundation and Braberg (defendants) answered on December 13, 2010, generally denying the allegations and asserting as affirmative defenses that: (1) plaintiffs fail to state causes of action; (2) the claims are barred by the statute of limitations, laches and the statute of frauds; (3) the fraud claim has not been pled with particularity; and (4) the court lacks personal jurisdiction over them. Pursuant to a settlement, Mayhew and Caballero delivered the signing wires (among other things) to the plaintiffs (transcript, Aug 22, 2013, 21:19—25), and the claims against them were discontinued with prejudice by stipulation dated April 29, 2011.

II. Proposed Amended Complaint

Plaintiffs now move to amend their complaint. In their proposed amended complaint (affidavit of Alexander S.C. Rower, sworn to December 24, 2012, exhibit 2 [proposed amended complaint]), plaintiffs seek to add allegations concerning a letter from Dolly received in 1996 by Alexander S.C. Rower, the artist's grandson and the president of the Calder Foundation (proposed amended complaint, exhibit 2). In the letter, Dolly wrote that she would "gather up whatall [sic] we have from [Calder] for your files. I feel like the Calder Foundation is the right home for all of our stuff'" (id.). Included in the items she mentioned were Calder's original letters and other objects that she thought might be of interest to Rower, such as "a handful of singing [sic] wires'" and "all kinds of things that we've been hanging onto since we took over after poor Curt [Valantin] died" (id.). Dolly noted that at the time Mayhew was "hording" [sic] the correspondence for the purpose of writing a book (id.).

Based on Dolly's letter, plaintiffs seek to add a cause of action for breach of contract due to defendants' failure or refusal to deliver the items mentioned therein. Also, plaintiffs claim that the letter can serve as the basis for a cause of action for fraud, asserting that the fact that defendants allowed Mayhew to take possession of the Correspondence shows that defendants never intended to relinquish the items to plaintiffs. Further, they contend that in 2008, Katherine told Rower that she would search Klaus's home for the Correspondence, when she allegedly knew that the letters had been put into escrow by Mayhew pursuant to a settlement agreement discontinuing a separate action commenced by Mayhew in 2006 against the Perls (proposed amended complaint, ¶ 82 [ii]; Rower affidavit, December 24, 2012, exhibit 7). To amplify their fraud claim, plaintiffs also seek to allege that Klaus maintained a Swiss bank account which he called "Madame Andre", that the Gallery's business records are incomplete, obscure, or fraudulent, and that on various occasions, the defendants made misrepresentations to the United States tax authorities.

Aside from adding new factual allegations and a cause of action for breach of contract, the proposed amended complaint seeks to assert claims for breach of fiduciary duty, constructive trust and unjust enrichment, as well as an accounting, and discontinues the cause of action for conversion. Finally, the proposed amended complaint broadens its request for relief on the replevin and breach of bailment causes, to include the ...

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