Davidoff Hutcher & Citron LLP, New York (Joshua S.
Krakowsky of counsel), for appellants.
Grossman LLP, New York (Judd B. Grossman of counsel), for
Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.
Supreme Court, New York County (Charles E. Ramos, J.),
entered June 23, 2017, which granted plaintiffs' motion
for partial summary judgment on their causes of action for a
declaration, conversion, and replevin, and declared that
plaintiff Peter Beard is the sole owner of the subject art
work, is affirmed, without costs.
motion court correctly found that the works of art at issue
were goods, and thus that the purported oral agreement to
sell them was barred by the statute of frauds (see
UCC 2-201; American-European Art Assoc. v Trend
Galleries, 227 A.D.2d 170');">227 A.D.2d 170');">227 A.D.2d 170');">227 A.D.2d 170 [1st Dept 1996); compare
National Historic Shrines Found., Inc. v Dali, 1967 WL
8937 [Sup Ct, NY County 1967]). Defendants' wire
transfers to a third party, who then purportedly remitted the
funds to plaintiffs, were not unequivocally referable to the
agreement alleged, such as to deem the agreement partially
completed and outside the statute of frauds (see
Anostario v Vicinanzo, 59 N.Y.2d 662, 664 ).
Alternative explanations, including that the funds were for
financing other projects involving the third party, defeat
such claims (see Baytree Assoc. v Forster, 240
A.D.2d 305, 307 [1st Dept 1997], lv denied 90 N.Y.2d
argument that the transcripts of plaintiff Beard's
testimony should not have been considered, since the
deposition was not yet concluded, is academic, given that
plaintiffs met their burden as movants to show that there was
no written contract between the parties with affidavits, and
without the transcripts (compare Stern v Inwood Town
House, 22 A.D.2d 650');">22 A.D.2d 650 [1st Dept 1964]). Plaintiffs were
not required, as movants, to disprove any possible defenses
defendants might assert in opposition to their motion, such
as partial performance (see C.H. Sanders Constr. Co. v
Bankers Tr. Co., 123 A.D.2d 251, 252 [1st Dept 1986]).
considered defendants' remaining contentions and find
concur except Richter and Tom, JJ.
dispute over three works of art by plaintiff Peter Beard,
defendants raised issues of fact as to whether the
parties' oral agreement to sell the works was completed,
or at least partially performed, thus removing the agreement
from the requirements of the statute of frauds (see Baje
Realty Corp. v Cutler, 284 A.D.2d 282, 283 [1st Dept
2001]; Sands v Feldman, 243 A.D.2d 294');">243 A.D.2d 294 [1st Dept
1997]; Guterman v RGA Accessories, 196 A.D.2d 785');">196 A.D.2d 785
[1st Dept 1993]). Accordingly, I dissent and would reverse
Supreme Court's grant of partial summary judgment to
Peter Beard is a renowned artist, whose signature works are
photo collages, often featuring African landscapes and
animals, including elephants. Plaintiff Peter Beard Studio
LLC (the Studio) was created to "protect and provide a
market for" Beard's works and is authorized to sell
Beard's original artwork when it is being sold for the
first time. Beard's wife, nonparty Nejma Beard (Nejma),
is the president of the Studio and Beard's authorized
agent. Defendant Bernie Chase is an art collector who has
amassed a considerable collection of Beard's artwork over
the years, and an investor in defendant art gallery Phillippe
Hoerle-Guggenheim. The three pieces of artwork at issue in
this case are entitled "The Snows of Kilimanjaro, "
"765 Elephants, " and "Paradise Lost"
around October 2013, Beard's longtime friend and
occasional artistic collaborator, nonparty Natalie White,
introduced him to Chase. At that time, Beard participated in
two photo shoots in New York City that were organized by
Chase and his friends and that Chase agreed to substantially
fund. The shoots involved numerous well known models who
would be photographed, and Beard would then work the
photographs into his signature collages. Among others, Chase
and White attended the shoots. Following the shoots, Beard
"hand-worked" the photographs in a room paid for by
Chase at the Soho Grand Hotel.
the same time period, Beard also created original works from
earlier photographs, including the Works. While Chase
contends he reached an agreement with Beard to purchase the
Works, Beard maintains that he never entered into such an
agreement. Instead, Beard alleges that after he created the
Works at White's Manhattan apartment, the Works were
taken without his permission or consent.
further alleges that he did not know where the Works were
located until he learned of their display by the
Hoerle-Guggenheim gallery in February 2015. Plaintiffs'
counsel immediately demanded the return of the Works and
sought to resolve the matter. However, plaintiffs later
learned that defendants were actively marketing the Works for
2015, plaintiffs commenced this action seeking a declaratory
judgment and asserting claims for conversion, replevin and
tortious interference with economic advantage.
affidavit in support of plaintiffs' motion for summary
judgment, Beard did not dispute that Chase organized the
October 2013 photo shoots or that he substantially funded
them. He also agreed that he created the Works during that
time, including working on them at White's apartment in
front of Chase, among others. He again claimed that the Works
were taken from the apartment without his consent or
permission. He also averred that he never agreed to sell the
Works and that he did not authorize anyone (other than the
Studio) to sell the Works. He added that he was not
compensated for the Works.
contrast to his affidavit, at his partially completed
deposition,  Beard testified that the Works had not
actually been completed. While he did not think he ever
agreed to selling his work to Chase, it was possible that
they had discussed it. He denied that White told him that she
was selling the Works on his behalf to Chase. In any event,
he insisted he was not compensated for the Works.
he didn't recall the circumstances, Beard agreed that he
had signed an affidavit in connection with this suit, but
stated that he had not read it before signing it, observing
that it was "just words. Unbelievable, " "in a
huge area of bulls**t." He went to the deposition
because he was told he had to go, but the deposition was
simply wasting everyone's time. Inconsistent with his
position in this action, Beard stated that he had no
objections to Chase selling the Works.
agreed he was sick in 2013 and had a stroke, but he did not
know whether he experienced any confusional episodes. Yet, he
did experience confusional episodes and memory loss at the
time of a giant Polaroid shoot at which he met Chase. He
denied having been hospitalized for a dangerous amount of
drugs in his system, although he "[p]ossibly [had] a
little, but not much, " "[m]arijuanna, " and
it "could have been [cocaine]."
affidavit in support of the motion, Nejma Beard stated that
the Studio, which she runs, is the sole entity authorized to
sell Beard's work. In that role, the Studio maintains an
archive of his artwork, photographs each new work, and marks
each work with a special ink stamp to prevent and deter
counterfeits. She explained that at no time did the Studio
agree to sell the Works. She further explained how she came
to learn of the display of the Works and about defendants
marketing the Works for sale, and her concerns about the
impact it could have on the market for Beard's work.
deposition, Nejma also testified that she and her husband
commenced this lawsuit because Bernie Chase was a
"pathological liar" and a "parasite" who
was trying to steal from her husband. She also believed that
White and Elizabeth Fekkai, Beard's friend, were involved
in the scheme. She first learned about the Works'
existence by a Google alert that linked her to an article
about the Hoerle-Guggenheim Gallery offering the Works for
sale. When she asked Beard about the Works, he said that they
were his, adding, "[H]ow the hell did they get there
[the Hoerle-Guggenheim]?" Nejma noted that Beard was
also diagnosed in 2013 with bipolar disorder after she had
him sent to the hospital.
their "statement of undisputed facts, "
plaintiffs' acknowledged defendants' claim that Chase
purchased the Works in two separate "handshake"
deals with Beard, but stressed ...