Jerome M. Eisenberg, Inc., Plaintiff-Appellant,
Maurice E. Hall, Jr., et al., Defendants-Respondents.
Office of Frank Raimond, New York (Frank Raimond of counsel),
Wang & Associates, P.C., New York (Jacob Tebele of
counsel), for respondents.
Acosta, J.P., Mazzarelli, Andrias, Feinman, Webber, JJ.
Supreme Court, New York County (Eileen A. Rakower, J.),
entered on or about August 28, 2015, which denied
plaintiff's motion for summary judgment on its cause of
action for breach of contract, affirmed, without costs.
Appeal from order, same court and Justice, entered on or
about August 28, 2015, which granted defendants Maurice E.
Hall, Jr. and Michael Hall Collections, Inc.'s motion for
summary judgment to the extent of dismissing the fourth,
fifth and sixth causes of action in the amended complaint,
dismissed, without costs, as abandoned.
M. Eisenberg buys and sells antiquities. He is a principal of
plaintiff Jerome M. Eisenberg, Inc. (Eisenberg, Inc.), and a
Qualified Appraiser of the Appraisers Association of America.
He is a self-proclaimed expert in classical antiquities with
a doctorate in Roman, Egyptian, and Near Eastern Art.
Maurice E. Hall, Jr. (Hall), Michael Hall Collections, Inc.,
and Michael Hall Fine Arts, Inc. are art dealers that mainly
deal in sixteenth to nineteenth century European art. Hall
was a principal and sole shareholder of both Hall entities.
Hall asserts that his expertise is in Renaissance art and
that he is merely an "amateur collector" of
classical antiquities. Eisenberg also stated that he did not
believe Hall to be an expert in classical antiquities.
appeal deals with plaintiff securing from defendants a bust
and a statue that they believed to be ancient but were later
revealed to be modern forgeries.
February 2009, Eisenberg visited Hall's townhouse, out of
which Hall operated his business, and secured  a marble head
or bust of Faustina II, purported to be ancient Roman
, and a bronze warrior statue purported
to be Etruscan or Roman era (the Etruscan Warrior)
. Some months later plaintiff sold the
Faustina Bust to the Mougins Museum of Classical Art in
France. In or about September 2011, the Mougins Museum
informed plaintiff that the Faustina Bust was a fake in that
it was modern and not ancient. The museum sent plaintiff a
report by Professor R.R.R. Smith of Oxford University and
Susan Walker, a curator at the British Museum, who opined
that the bust was likely modern.
April 2011, plaintiff obtained from defendants the Etruscan
Warrior and a bronze helmet. Plaintiff subsequently sent
photographs of the statue to Dr. Michael Padgett at Princeton
University, who opined that the piece had some stylistic
inconsistencies. Plaintiff then submitted the statue to
Oliver Bobin of the Centre d'Innovation et de Recherche
pour l'Analyse et le Marquage for metallographic
analysis. Bobin determined that the Etruscan Warrior was
actually from the nineteenth or twentieth century and
therefore was not ancient.
alleges that due to the "mutual mistake" of the
parties regarding whether the items were ancient, it is
entitled to summary judgment.
agree with the motion court's decision that plaintiff is
not entitled to summary judgment on its breach of contract
claim pursuant to the doctrine of mutual mistake (see
generally Matter of Gould v Board of Educ. of Sewanhaka Cent.
High School Dist., 81 N.Y.2d 446, 453 ). Although
the record reflects that both plaintiff and defendants
mistakenly assumed at the time of the transactions that the
items at issue were ancient, issues of fact exist as to
whether plaintiff bore the risk of that mistake due to its
"[c]onscious ignorance" of the items'
authenticity (P.K. Dev. v Elvem Dev. Corp., 226
A.D.2d 200, 201 [1st Dept 1996] [internal quotation marks
omitted][alteration in original]; Richard L. Feigen &
Co. v Weil, 1992 NY Misc. LEXIS 711, *10-12 [Sup Ct, NY
County 1992], affd for reasons stated below 191
A.D.2d 278 [1st Dept 1993], lv denied 82 N.Y.2d 652');">82 N.Y.2d 652');">82 N.Y.2d 652');">82 N.Y.2d 652
; Backus v MacLaury, 278 A.D. 504, 507 [4th
Dept 1951], lv denied 278 A.D. 1043');">278 A.D. 1043 [4th Dept 1951];
ACA Galleries, Inc. v Kinney, 552 Fed.Appx 24, 25
[2d Cir 2014]; Restatement [Second] of Contracts § 154
and Comment c).
a contract entered into under a mutual mistake of fact is
voidable and subject to rescission" because it
"does not represent the meeting of the minds' of the
parties" (Matter of Gould v Board of Educ. of
Sewanhaka Cent. High School Dist., 81 N.Y.2d 446, 453
). In order to justify rescission, "[t]he mutual
mistake must exist at the time the contract is entered into
and must be substantial" (id.).
doctrine of mutual mistake "may not be invoked by a
party to avoid the consequences of its own negligence"
(P.K. Dev. v Elvem Dev. Corp., 226 A.D.2d at 201).
Where a party "in the exercise of ordinary care, should
have known or could easily have ascertained" the
relevant fact (id. at 202) - here, whether the items
were ancient - that party is deemed to have been
"[c]onscious[ly] ignoran[t]" and barred from
seeking rescission (id. at 201 [second and third
alterations added]) or other damages. This is true
"[e]ven where a party must go beyond its own efforts in
order to ascertain relevant facts (such as obtaining
experts' reports)" (id. at 202).
conscious ignorance exception applies only where a party is
aware that his knowledge is limited but decides to contract
anyway "in the hope that the facts accord with his
wishes, " thus assuming "[t]he risk of the
existence of the doubtful fact... as one of the elements of
the bargain" (Backus v MacLaury, 278 A.D. at
507 [internal quotation marks omitted]; accord ACA
Galleries, Inc. v Kinney, 552 Fed.Appx at 25;