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Beard v. Chase

Supreme Court of New York, First Department

June 21, 2018

Peter Beard, et al., Plaintiffs-Respondents,
Bernie Chase, et al., Defendants-Appellants.

          Davidoff Hutcher & Citron LLP, New York (Joshua S. Krakowsky of counsel), for appellants.

          Grossman LLP, New York (Judd B. Grossman of counsel), for respondents.

          Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.

         Order, 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.

         The 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 [1983]). 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 810 [1997]).

         Defendants' 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]).

         We have considered defendants' remaining contentions and find them unavailing.

          All concur except Richter and Tom, JJ.

          TOM, J. (dissenting)

         In this 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 plaintiffs.

         Plaintiff 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" (the Works).

         In or 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.

         During 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.

         Beard 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 sale. [1]

         In May 2015, plaintiffs commenced this action seeking a declaratory judgment and asserting claims for conversion, replevin and tortious interference with economic advantage.

         In an 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.

         In contrast to his affidavit, at his partially completed deposition, [2] 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.

         Although 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.

         Beard 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]."

         In her 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.

         At her 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.

         In their "statement of undisputed facts, " plaintiffs' acknowledged defendants' claim that Chase purchased the Works in two separate "handshake" deals with Beard, but stressed ...

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