Peabody LLP, New York (Thaddeus J. Stauber of counsel), for
Richard Nagy and Richard Nagy Ltd., appellants.
and Dana LLP, New Haven, CT (Jonathan M. Freiman of the bar
of the State of Connecticut, admitted pro hac vice, of
counsel), for ARIS Title Insurance Corporation, appellant.
Dunnington, Bartholow & Miller, LLP, New York (Raymond J.
Dowd and Samuel Blaustein of counsel), for respondents.
Wiggins and Dana LLP, New York (Adam Farbiarz of counsel),
for ARIS Title Insurance Corporation, amicus curiae.
Friedman, J.P., Sweeny, Renwick, Andrias, Manzanet-Daniels,
Supreme Court, New York County (Charles E. Ramos, J.),
entered on or about September 13, 2016, which denied the
motion of defendants Richard Nagy and Richard Nagy Ltd.
(collectively Nagy) to dismiss the complaint, unanimously
modified, on the law, to dismiss plaintiffs' claim
pursuant to General Business Law § 349, and otherwise
affirmed, without costs. Order, same court and Justice,
entered September 14, 2016, which denied the motion of ARIS
Title insurance Company (ARIS) to intervene pursuant to CPLR
1012 and/or 1013, unanimously affirmed, without costs.
action arises from two pieces by the artist Egon Schiele
alleged to have been looted by the Nazis during World War II
from cabaret artist Fritz Grunbaum, who, along with his wife
[*2]Elisabeth, was executed during the Holocaust. The pieces
came into the possession of art dealer Nagy sometime after
2005, David Bakalar, a Massachusetts industrialist turned
sculptor, brought suit against the heirs of Grunbaum seeking,
inter alia, a declaration that he was the rightful owner of
the Schiele work "Seated Woman, " a piece he had
owned for over 40 years (Bakalar v Vavra, 851
F.Supp.2d 489 [SD NY 2011]; Bakalar v Vavra, 819
F.Supp.2d 293 [SD NY 2011], affd 500 F Appx 6 [2d Cir 2012]).
Nagy's contention that the dismissal in Bakalar, which
was based upon application of the doctrine of laches,
collaterally estops plaintiffs from pursuing their claims to
two other Schiele pieces, "Woman in a Black
Pinafore" and "Woman Hiding Her Face, " is
misplaced. Collateral estoppel requires the issue to be
identical to that determined in the prior proceeding, and
requires that the litigant had a full and fair opportunity to
litigate the issue (see Schwartz v Public Adm'r of County
of Bronx, 24 N.Y.2d 65');">24 N.Y.2d 65 ). Neither of those requirements
has been shown here where the purchaser, the pieces, and the
time over which the pieces were held differ significantly.
The three works are not part of a collection unified in legal
interest such to impute the status of one to another (compare
Poindexter v Cash Money Records, 2014 WL 818955,
2014 U.S. Dist LEXIS 26985 [SD NY 2014]; Poindexter v EMI
Record Group Inc., 2012 WL 1027639, 2012 U.S. Dist LEXIS
42174 [SD NY 2012]).
General Business Law § 349 claim, however, should be
dismissed for failure to state a cause of action. The
transaction at issue here, a single attempted transaction, to
which plaintiffs were not a party but an alleged
"competitor, " is not the type of consumer-oriented
harm contemplated by the statute (see Shou Fong Tam v
Metropolitan Life Ins. Co., 79 A.D.3d 484');">79 A.D.3d 484 [1st Dept
court correctly denied ARIS intervenor status. While
intervention is liberally granted, ARIS's interest as the
title insurer to "Woman Hiding Her Face" is purely
derivative, no different from that of any insurer. And since
it is entitled to approve of counsel selected by Nagy, with
whom its interests are aligned, its position is well
protected (compare Yuppie Puppy Pet Prods., Inc. v Street
Smart Realty, LLC, 77 A.D.3d 197, 201 [1st Dept 2010]).
plaintiffs' motion to dismiss the appeals based upon the
Holocaust Expropriated Art Recovery Act (HEAR) is moot in
light of this Court's finding that the motion court's
order denying collateral estoppel should be affirmed. The
issue of whether HEAR would apply to bar Nagy's defense
of laches in its entirety is not before this Court, having
not been decided by the motion court.
considered the parties' remaining contentions and find
Timothy Reif, et al. v Richard Nagy, et al.
to dismiss appeals and for related ...