United States District Court, S.D. New York
S.A.R.L. GALERIE ENRICO NAVARRA AND ENRICO NAVARRA, Plaintiffs,
MARLBOROUGH GALLERY, INC., PHILIPPE KOUTOUZIS, and PIERRE LEVAI, Defendants.
OPINION AND AMENDED ORDER
KIMBA M. WOOD United States District Judge
S.A.R.L. Galerie Enrico Navarra and Enrico Navarra
(collectively, "Plaintiffs") filed the
above-captioned lawsuit against Marlborough Gallery, Inc.
("Marlborough"), Marlborough's director for
Asia, Philippe Koutouzis ("Koutouzis), and
Marlborough's president, Pierre Levai ("Levai")
(collectively, "Defendants") seeking damages for
tortious interference with contract, and aiding and abetting
before the Court is Koutouzis's motion for summary
judgment (Doc. No. 142), as well as Marlborough and
Levai's joint motion for summary judgment (Doc. No. 146).
For the reasons set forth below, Koutouzis's motion for
summary judgment, as well as Marlborough and Levai's
motion for summary judgment, are GRANTED. The Court vacates
its Order dated March 31, 2017. (Doc. No. 185).
parties appear to agree on few, if any, of the facts material
to this dispute. The following background represents the
parties' version of the events based on their Rule 56.1
submissions and the record evidence; the Court endeavors to
note where a fact is disputed.
The Production Agreement between Navarra and Mr.
2003, the Chinese-born French artist Chu Teh-Chun ("Mr.
Chu") entered into a production agreement (the
"Production Agreement") with the S.A.R.L. Galerie
Enrico Navarra (the "Navarra Gallery"), and the
ceramics factory La Tuilerie, to produce ceramic plates.
(Rosberger Dec. Ex. G). Under the Production Agreement, La
Tuilerie was to reproduce 24 of Mr. Chu's original
designs into limited editions, for a total of 1, 152 ceramic
plates (the "Plates"). Mr. Chu hand-painted each of
the 24 original designs. (Pis. 56.1 ¶ 18, Defs.'
56.1 ¶ 18). The 1, 152 Plates were to be divided among
Mr. Chu, La Tuilerie, and the Navarra Gallery, to be
exhibited and sold; Mr. Chu retained ownership of the 24
originals. La Tuilerie was scheduled to produce 240 Plates a
year. The Navarra Gallery agreed to pay Mr. Chu a 14% royalty
on Plates it sold, based on a minimum agreed-upon price,
three times a year.
any of the 24 original plates could be reproduced into
editions of 40 Plates, Mr. Chu needed to give his
"bons a tirer" which is French for
"okay to print"-his approval of the original
Plates, that are then ready to be reproduced.
Agreement between Marlborough Gallery and Mr.
23, 2007, Mr. Chu signed an agreement with the Marlborough
Gallery and Sevres, a porcelain factory, to produce 57
hand-painted ceramic vases (the "Vases"). Mr. Chu
painted on each of the Vases produced by Sevres. (Pis. 56.1
¶ 42, Defs.' 56.1 ¶ 42). Plaintiffs first
learned of the existence of the Vases from a magazine article
in September of 2008. (Defs.' 56.1 ¶ 47).
Alleged Bad Faith Acts
allege in the Amended Complaint that Defendants tortiously
interfered with the Production Agreement by causing or
encouraging Mr. Chu to violate that Agreement. Plaintiffs
claim they suffered financial, reputational, and emotional
damage as a result. (Amended Complaint ¶ 82).
this time, Plaintiffs allege, Defendants engaged in a
campaign with Mr. Chu to discredit the Plates. (Defs.'
56.1 ¶ 50). This campaign included four significant
actions by Mr. Chu, described more fully below: sending a
cease and desist letter, filing a lawsuit, sending an email
to the Christie's auction house in Hong Kong, and
publishing an advertisement in a widely-read arts journal.
Defendants do not contest that the events took place; rather,
Defendants deny that they had any involvement in them.
Plaintiffs allege the following regarding the cease and
desist letter: Defendant Koutouzis introduced Mr. Chu to
William Bourdon, Koutouzis's friend, and, at times, his
lawyer. (Defs.' 56.1 ¶ 55; Wallison Aff., Ex. 22
(Bourdon Tr. 54:15-23)). Bourdon sent Plaintiffs a cease and
desist letter on or about February 19, 2007 (the "Cease
and Desist Letter"). The Cease and Desist Letter states
that the Navarra Gallery failed to pay Mr. Chu for the year
2006, failed to submit all the bons a tirer, and
failed to produce a minimum number of 240 Plates each year.
In the Cease and Desist Letter, Mr. Bourdon asks the Navarra
Gallery to cease producing the Plates, cancel current and
future exhibitions, and return the Plates that were not yet
sold. (Rosberger Decl. Ex. H).
parties dispute whether or not Defendants played any role in
sending the Cease and Desist Letter. (Pis. 56.1 ¶ 60,
Defs.' 56.1 ¶ 60). They disagree on whether Mr. Chu
had legitimate concerns over the Navarra Gallery's
performance under the Agreement, and whether Koutouzis
introduced Bourdon to Mr. Chu in order to interfere with the
Agreement. (Pis.' 56.1 ¶¶ 363-64).
in April of 2007, Bourdon's law firm filed a lawsuit
against the Navarra Gallery in France (the "French
Lawsuit"), on behalf of Mr. Chu, alleging the
Gallery's failure to perform its obligations under the
Production Agreement. (Amended Complaint ¶ 71). The
lawsuit made allegations similar to those stated in the Cease
and Desist Letter, and sought judicial termination of the
Production Agreement and damages for Plaintiffs' alleged
breach. (Id.; Defs.' 56.1 ¶ 54). The
Navarra Gallery responded to the French Lawsuit, arguing that
it was frivolous, because the Gallery had complied with its
obligations under the Production Agreement. The District
Court of Paris issued a decision on March 30, 2012, holding
that the Navarra Gallery was not at fault for its delay in
paying royalties, in light of to Mr. Chu's eight-month
delay in creating the artwork for the Plates.
on May 16, 2008, Bourdon sent an email to the Hong Kong
Christie's auction house (the "Christie's
Email"), informing Christie's of the ongoing legal
proceedings against Navarra. The Christie's Email claimed
that certain plates were unauthorized, or perhaps
inauthentic,  and demanded the removal of the 12 plates
set to be auctioned on May 25, 2008. Christie's canceled
the sale of the Plates. Defendants deny any involvement in
prompting Bourdon to send the Christie's Email.
(Defs.' 56.1 ¶ 68).
from October 3 through 16, 2008, an advertisement appeared in
he Journal des Arts, a trade publication for the
European art world, questioning the authenticity of the
Plates (the "Journal Ad"). Entitled "Warning from
M. Chu Teh-Chun, " the Journal Ad alerts readers to the
French Lawsuit and the withdrawal of the Plates from
Christie's in Hong Kong, due to a question of
authenticity. (Pis.' 56.1 ¶ 290). The Journal Ad
also warns any owners or sellers of the Plates to be
suspicious of their authenticity. (Id.). Navarra
described the effect of the Journal Ad as "disastrous,
" and stated that it rendered the Plates
"unsalable." (Navarra Tr. 230:5-8; Amended
Complaint ¶¶ 109, 117).
French Lawsuit, Plaintiffs brought counterclaims against Mr.
Chu for disparagement, based on the Christie's Email and
the Journal Ad. The District Court of Paris denied these
counterclaims in its March 30, 2012 decision, and held that
Plaintiffs had not shown a campaign of disparagement.
(Rosberger Dec. Ex. Z). The Plaintiffs appealed the decision.
The Court of Appeals of Paris affirmed the lower court's
decision, and held, in part, that Mr. Chu could not be
accused of disparagement; therefore, the disparagement claim
was rightfully dismissed. (Id. Ex. BB).
January of 2009, Mr. Chu suffered a stroke, and became unable
to communicate. He died on March 26, 2014.
October 4, 2010, Plaintiffs filed a Complaint in this Court
against Marlborough Gallery, claiming attempted
monopolization, false advertising and trade disparagement,
defamation, product disparagement, and tortious interference
with contract. The Complaint was dismissed on June 21,
2011, for failure to state a claim of monopolization under
the Sherman Act, failure to state a claim of false
advertising and trade disparagement under the Lanham Act, and
failure allege wrongdoing sufficient to support the ten
claims under state law. Navarra v. Marlborough Gallery,
Inc., 820 F.Supp.2d 477 (S.D.N.Y. 2011) (Jones, J.). The
Court held that Plaintiffs had not pled a false statement or
any wrongdoing by Marlborough to sustain a claim of
defamation or product disparagement. The Court also held that
Plaintiffs had not pled an underlying tort to sustain a claim
of tortious interference with contract. Id. at 489.
April 18, 2012, Plaintiffs filed the Amended Complaint in
this action against Marlborough and also Koutouzis and Levai,
(see Doc. 30), alleging (1) common law tortious
interference with contract, and (2) aiding and abetting
tortious interference with contract. Koutouzis argued that
the claims were time-barred, and contested being added to the
Amended Complaint. The Marlborough Gallery and Levai moved
for a Judgment on the Pleadings, incorporating the arguments
Koutouzis made in his Motion to Dismiss. On March 26, 2013,
Koutouzis's Motion to Dismiss and Marlborough ...