EX NOT .55489/2016
`INDEX NO. 655489/2016
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`
`
`
`
`w .I. A...» .- nM-gu._.erM.a-Mr
`RECEIVED NYSCEF: 07/05/2019
`NYSCEF DOC. NO. 145
`NYSCEF‘DOCU. ”ND”. 145
`..
`.
`.
`_
`.
`-. “LA... E,..~RAWAD wee-:35: ~0‘7‘1’05/2019
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK: COMMERCIAL PART 48
`
`-.---_-_-----_-_--__; ......... '. ................. ‘_ ....................... X
`
`THE MAYOR GALLERY LTD,
`
`{.
`
`Plaintiff,
`
`'
`
`INDEX NO.
`
`'
`
`‘
`
`‘
`
`MOTION DATE
`
`655489/2016
`.
`
`7V '
`
`’
`
`'
`
`.
`
`MOTION SEQ. NO.
`
`,
`
`004
`
`'
`
`THE AGNES MARTIN CATALOGUE RAISONNE LLC, ARNOLD
`
`GLlMCHER, MARC GLlMCHER, and TIFFANY BELL,
`'
`-
`-
`
`.
`,
`DECISION & ORDER
`
`' Defendants.
`...................................................................................x
`
`MASLEY, 1.:
`
`The following e-filed documents, listed by NYSCEF document number (Motion 004) 92, 93, 94, 95, 96, 97, 98, 99,
`100,101, 102, 103, 104, 105, 106,107, 108, 109, 110, 111, 112, 113,114, 115, 116, 117, 118, 119, 120, 121, 131, 136, 137
`DISMISSAL
`
`were read on this motion tO/for
`
`In its April 3, 2018fdecision and order (NYSCEF 66), the court granted defendants' prior motion,
`
`motion sequence number (Motion) 001, and dismissed plaintiff’s First Amended Complaint (FAC) in its
`
`entirety but permitted plaintiff leave to replead several Of the dismissed claims. A Second Amended
`
`Complaint (SAC), dated April 24, 2018, was filed tO NYSCEF on April 25, 2018 (NYSCEF 70), Defendants
`now, move, pursuant to CPLR 3211 (3),“), (a) (3), and (a) (7) in Motion 004, to dismiss the SAC.
`
`The court incorporates here its April 3, 2018 decision resolving Motion 001 (NYSCEF 66) in which
`
`the factual background Of this matter is discussed in detail. The court presumes familiarity with the
`
`‘
`
`action and the facts in this decision and order are limited to those that illustrate the Changes between
`
`the FAC and SAC and those Otherwise necessary for the court to resolve Motion 004.
`
`The Prior Motion to Dismiss the PAC (Motion 001)
`
`The court dismissed the PAC in its April 3, 2018 decision and order. As a threshold .matter, the
`
`court narrowed the scope of its review of the FAC on the preliminary bases of plaintiff’s standing to
`
`655489/2016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No. 004
`
`'
`
`. Page 1 of 16
`
`lof16
`1 of 16
`
`'
`
`,
`
`'
`
`L
`
`
`
`

`

` ”FILED NEW YORK COUNTYCLERK 07£y2019 12:17 P ‘ , EXNO- 65545975015
`
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`
`
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO 145-
`.L. w" n;
`_
`
`INDEX NO. 655489/2016
`
`
`
`
`RECEIVED NYSCEF: 07/05/2019
`RLCLIVL‘ET‘WYSCEF": 07/05/2019
`
`
`
`E l l l
`
`
`
`raise its various claims. Standing to raise tort claims, such as most of those contained in the VFAC and "
`SAC, necessarily depends on whether the plaintiff has sustained an injury.
`In reviewing the PAC, the
`court determined that, at that pre-answer motion to dismiss stage, plaintiff’s allegations were adequate
`
`as to injury with respect to only certain artworks and as to certain defendants; that is, the court
`
`determined that, for the purpose of analyzing Motion 001 and the FAC, it would only review the claims
`
`_ to the extent that. they involved artworks for which plaintiff had alleged an accrued injury. in short,
`
`I
`
`judicial review was warranted pre—answer and pre-discovery only where plaintiff had issued a refund to
`certain collectors, as there was otherwise no controversy in tort between the parties to be adjudicated.
`
`Ultimately, the court found that there was only standing as to the artworks sold to two ’
`
`collectors, Levy and Shainwald, who were allegedly refunded by plaintiff after the Notification Letters
`
`were sent. Further, plaintiff’s injury claims amounted, for each tort claim, to the amount that the four
`
`collectors had paid and had been, or may be in the future, refunded; accordingly, the court dismissed
`
`for lack of standing plaintiff’s first, second, third, fourth, and fifth (inasmuch as it sounded in tort) claims
`
`as they related to Kolodny and Labouchére, the collectors who had, at that time, not been refunded.
`The court further dismissed plaintiff’s first through sixth claims in the FAC as raised against the
`individual defendants on the basis that plaintiff had alleged ”only general, conclusory allegations that
`
`the individual defendantsparticipated in the claimed tortious acts or omissions” and had not
`I
`”demonstrate[d] that the individual defendants benefited from the alleged torts" (N-YSCEF 66). The.
`court further dismissed the contract prong of the sixth cause of action as against the individual
`defendants for lack of privity(/d.). Finally, the court dismissed with prejudice plaintiff’s General Business
`
`Law (GBL) § 349 claim as‘ to all defendants as inadequately pleadedi(/'0’.).
`I
`Amendments to the SAC
`Plaintiff amended the caption to remove as defendants the "Members of the-Authentification
`
`[sic] Committee of the Agnes Martin Catalogue Raisonné,” identified in the FAC as ”John Doe or Jane
`
`Doe ##1-6.” The defendants that remain are Agnes Martin Catalogue Raisonné LLC (AMCR), Arnold
`
`655489/2016 MAYOR GALLERY LTD vs AGNES MARTIN CATALOGUE
`Motion No. 004 .
`
`'
`f
`
`'
`
`Page 2 of 16
`‘
`
`20f16
`2 of 16
`
`

`

`EX NO.
`655489/2016
`
`INDEX NO. 655489/2016
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`
`
`
`
`
`
`’p7/05/2019
`3F __ DOG . NO . 145 m yww‘Vr‘tfifi n.6- "WV ”my”.
`.3”:
`w
`,
`1
`....
`,
`.0»-
`.,
`.
`_
`. ’Rflc *IIV*.D WSCEF :.
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 07/05/2019
`
`
`
`Glimcher (A Glimcher), Tiffany Bell, and Marc Glimcher (M Glimcher). M Glimcher was identified in the
`
`FAC as a member of AMCR’s Authentication Committee (Committee) but his identity was not disdosed
`publiclypursuant to theparties'iStipulation and Order for the Production and Exchange of Confidential
`Information, so-ordered by Justice Oing on December 20, 2016 (NYSCEF 22).1
`‘ Plaintiff further amended 1i 8 of the FAC to reflect that A Glimcher ”is the managing member” of
`
`AMCR, he ”controls" AMCR and the Committee, and he is "primarily” responsible for AMCR’s policies,
`
`practices, procedures and actions
`
`Plaintiff states in the SAC that both A Glimcher and M Glimcher are art dealers M Glimcheris
`
`the president of Pace Gallery and was appointed to the Committee by A Glimcher, his father.
`
`Plaintiff states in the SAC that A Glimcher ”founded and principally owns” Artifex Press (Artifex),
`thecompany that publishes the. Agnes Martin Catalogue Raisonné (Catalogue), and A Glimcher
`V
`appointed defendant Bell to the Committee and named her the Catalogue‘s editor.
`
`Plaintiff adds in the SAC that Kolodriy, one ofthe collectors who owned an artwork at issue,
`demanded and obtained a full refund pursuant to a warranty of authenticity on November 1, 20i6.
`Another collector, Labouchere, demanded a refund pursuant to a warranty of authenticity but agreed
`
`with plaintiff not to seek to enforce any Warranty rights-until plaintiff “prevails” in this action.
`
`As to the thirteen artWorks, the SAC includes plaintiff's allegation that all works were
`
`“purportedly signed by Agnes Martin,” and one work, Day & Night, :also has a handwritten inscription
`”To Delphine, Agnes Martin.”2 Plaintiff alleges that ”[d]efendants failed to compare the handwriting .
`.
`
`.
`
`on the thirteen artworks .
`
`.
`
`.
`
`', [n]or did they engage a handwriting expert, at plaintiff’s expense, to
`
`render an opinion on whether the signatures were authentic.”
`
`1 To the extent that any documents'are filed to the NYSCEF docket in this action, the parties are directed to execute a new
`
`stipulation for the exchange of confidential material in the form accepted by Part 48 and to otherwise comport with the
`Part 48 Rules and Procedures, both available on the NYCourtsgov public website.
`
`2 The FAC included allegations regarding the inscription on Day&N/ght(NYSCEF 25 [FAC], ii 22).
`
`655489/2016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No. 004
`
`Page 3 of 16
`
`3of16
`3 of 16
`
`

`

` FILED. NEW YORK COUNTY CLERK 072019 12. 17 P
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`NYSCEF DOC. NO. 145
`3F.1;).0.C. N0 .145 1...... .. 11,...
`,
`.
`,
`11111.
`.
`NIsc:
`
`
`
`
`
`653100/2016
`INDEX NO. 655489/2016
`
`IEX'N‘O-
`
`
`
`
`07/05/2019
`RECEIVED NYSCEF: 07/05/2019
`R«C«IW.D-..\IYSC:3F:-
`
`Plaintiff furtherasserts in the SAC that evidence was "ignored” by defendants in evaluating Day
`
`& Night when it was Submitted the second time": for-instance, radioc'arbontest resultsfor the work's
`canvas; an email allegedly from Jack Youngerman, the husband of Delphine Seyrig and a friend of
`Agnes Martin, in which Youngerman stated ”the dedication was an affectionate ’homage,’ ” but Seyrig
`
`never received the painting. . Youngerman also expressed in that email hisjopinion that Day & Night
`could have been made by only Agnes Martin, not by a counterfeite'r.3
`I
`Plaintiff states in the SAC that the collectors have not purchased any artwork from plaintiff since
`
`the Notification Letters were received and reassertshone of the thirteen artworks can be offered for
`resaleby plaintiff because of AMCR’s decision not to include the worksin the Catalogue
`As to A Glimcher and M Glimcher, plaintiff asserts that thereIS a conflict of interest, or an
`appearance of such a conflict, because they both oWn and deal Agnes Martin artworks, and both have
`”substantial monetary interest in” her artworks, the Value of which increases in step with the scarcity‘of
`her artworks on the market; thus, A Glimcher and M Glimcher have benefitted financially from AMCR’s
`exclusion of the thirteen artworks from the Catalogue: and ”their decision to vote to reject" those
`artworks ”was motivated by their economic interest .
`.
`. [to reduce] the number of Agnes Martin
`
`artworks in the marketplace." As to M Glimc‘her, plaintiff asserts that he lacks the professional
`experience "and objectivity" to serve on the Committee due to his financial interests.
`
`Plaintiff seeks, apart from the general causes of action in the SAC, to enjoin all defendants to
`answer certain inquiries posed in the SAC, and toenjoin all defendants from engaging in the alleged
`improper practices outlined in the SAC. Plaintiff additionally seeks. attorneys’ fees from defendants
`
`other than Bell under GBL § 349 (h).
`
`'
`
`l
`
`3 The FAC also included allegationsregardingv plaintiff’s resubmission of Day 81 N/‘ghtwith radiocarbon testing results and
`the purported email by Youngerman (NYSCEF 25, ii 28, see also id ex B [plaintiff's submission to AMCR for Day & Night,
`
`including both radiocarbon testing results and Youngerman’s alleged email, annexed to the FAQ).
`
`65548912016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No. 004
`
`V
`
`Page 4 of 16
`
`4of16
`4 of 16
`
`
`.mm-ww~mw1ww...“_..
`
`.-WW
`
`1
`
`

`

`INDEX NO. 655489/2016
` FILED. NEW YORK COUNTY CLERK 072019 12:17 P
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`
`NYSC.
`
`
`
`
`3F Doc. N0 145 24. w...,.,._. -
`Mm m...
`.R«.G«.IV«.D NXSQEEe-MOT/05/2019
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 07/05/2019
`
`At oral argument for Motion _00'4, plaintiff’s counsel clarified that the warranties of authenticity
`provided when the'artworks were sold—no contract of sale is included in any papers before" the
`court—w'ereimplied warranties, not written or otherwise recorded, which are “breach[ed]" when AMCR.
`declines to include the artwork in the Catalogue, ”compe|[ling plaintiff] to issue a refund" (Tr at 9-10).
`
`Though not actually alleged, the court presumes that plaintiff refers to the implied warranty applicable
`
`to the sale of artg'oods under the UCC (see UCC § 2-312 [warranty of title implied in sale of art]).
`
`The Claimsin the SAC
`
`Plaintiff alleges the following causes of action in the SAC:
`
`'
`
`.
`
`1. Product disparagement against all defenda‘nts except Bell as to all thirteen artWOrks;
`2. Tor-tious interference with contract against all defendants except Bell as, to all artworks;
`3. Tortious interference with prospective business relations against all defendants except Iell as to all
`artworks;
`
`4. Negligent misrepresentation against all defendants except Bell as to all-artworks;
`5. Gross negligence/breach of contract against all defendants except Bell as toall artworks;
`6. Breach of contract and breach of implied duty of good-faith and fair dealing against all defendants
`except Bell (for pecuniary damages) and against all defendants (for injunctive relief) as to only one
`artwork, Day & Mom, and
`
`7 Violation of GBL § 349 against all defendants except Bell (for pecuniary damages) and against all
`defendants (for injunctive relief).
`
`Defendants move, pursuant to CPLR 3211 (a') (1), (a) (3), and-(a) (7), to dismiss the SAC entirely.
`_
`‘
`Discussion
`I
`
`-
`
`, I
`
`As to Standing and the individual Defendants
`As to the threshold issue of standing, the court finds that plaintiff’s new allegations that it has
`
`refunded K'olodny’s purchase is adequate, at this pre—answer, pre—discovery phase, for the court to
`
`consider the claims as they relate to Kolodny’s submissions to AlviCR. As to Labouchere, plaintiff now
`
`alleges that he demanded a refund but then rescinded the demand and agreed ”in substance” that he
`
`"would forebear from enforcing his’rights under [the warranties of authenticity] and from demanding
`
`and receiving a refund of the purchase'price’s, but only if and until [plaintiff] brought and then prevailed
`
`65548912016 .MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No. 004
`
`.
`
`Page 5 of 16
`.
`
`50f16
`5 of 16
`
`
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`' FILED. NEW YORK COUNTY CLERK 07m2019 12:17 P
`
`NYSC
`3F Doc. No 145« 70.,mma ”was
`NYSCEF DOC. NO. 145
`{
`
`
`EXNO-
`
`655489/2016
`INDEX NO. 655489/2016
`
`
`
`
`
`
`
`07/05/2019
`R*.C*.IV*.D \IYSCIEFz"
`RECEIVED NYSCEF: 07/05/2019
`
`.in [this]. action" (NYSCEF 7O [SAC'],,1l 51). Based on that allegation-Labouchere has not demanded or
`
`received a refund, or created a pending legal obligation on the part of plaintiff (See id). Plaintiff states,
`
`in its memorandum of law in opposition to Motion 004, that the implied warranties are those controlled
`
`by UCC §‘ :21725 (2), which provides the statute of limitations for enforcing a warranty of goods that
`involve future performance, such as artworks: the four—year statute of limitations ”must await the time of
`
`such [future performance and] the cause of action accrues when the breach is or should have been
`
`discovered” (NYSCEF 113 at 5, citing UCC § 2—725 [2]).. Here, the breach (inauthenticity) occurs, as -.
`
`f plaintiff alleges, when Notification Letters decline to .inclUde the artworks in the Catalogue.
`
`1
`
`Plaintiff argues that it has cured the Labouchere—related standing issues in that Labouchere’s
`
`now alleged to have demanded a refund, but then agreed with plaintiff that the time to enforce the
`
`warranty would not toll, and 'Labouchere would reserve .his right to demand a rernd, until plaintiff
`
`"prevails in [thisj action” (NYSCEF 70, ii 51). The court disagrees. Plaintiff has not corrected the
`
`identified standing issue-as to Labouchere’s artworks as plaintiff doesnot allege that it has sustained an
`
`actual of accrued injury regarding those artworks/transactions. ‘This action does not seek a
`
`determination Or declaratidn that the artWOrk's are, in fact, authentic, and such relief would not result
`
`from adjudication of these claims. Further, UCC § 2-725'(2) does not impose a legal duty on plaintiff to
`
`refund any collector for the artworks; it sets the time at which a collector’s claim against plaintiff accrues
`and within which a collector must. seek to enforce the implied warranty. Extending the collector's time
`
`to enforce the-warranty does not constitute an actual injury sustained by plaintiff: there is no legal-
`obligation imposed on plaintiff to issue a refund now, only the potential to face an enforcement-
`
`demand or action in the future. Finally, plaintiff alleges in the SAC that Labouchere’s right to demand a
`refund is contingent on plaintiff prevailing in this action; if plaintiff does not prevail, the collector’s time
`to .demand or commence an action to enforce the warranty may well have expired.
`‘
`. The court has not ruled, at anyjuncture, whether plaintiff ultimately has standing to raise its tort
`
`claims—only that, for the purposes of these pre-answer motions, it would evaluate the claims insofar as
`
`655489l2016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No. 004
`
`Page 6 of 16
`
`6of16
`6 of 16
`
`

`

` FILED. NEW YORK COUNTY CLERK 072019 2:17 P
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`NYSC.
`NYSCEF DOC. NO. 145
`SEW DOC’ «Mu145mmW«M w,-
`
`
`
`IND EX
`655489/2016
`
`
`INDEX NO. 655489/2016
`
`
`
`
`
`“W weavmmwmmme¢mvmt9
`RECEIVED NYSCEF: 07/05/2019
`
`s
`
`plaintiff has alleged it has sustained an injury—the most basic, elemental aspect of standing for a tort
`
`claim. The court hassome doubts as to whether‘plaintiffhas Sustained an adequate injury as to all
`
`artworks, Which were sold prior to the works‘vbeing. sent to AMCR (or any Icataloguéraisbnné), and—as
`
`far as'plaintiff alleges—noneof t‘he'sales were contingent upon future inclusion of the works in a'
`
`catalogue raise-nine. Further, theworkvthatwas resubmitted to AMCR by plaintiff, Day & Night, was
`
`'
`
`rendered worthless by the initial non—inclusion in the Catalogue, as plaintiff alleges, and so the non-
`inclusion of Day.& Night after resubmission does not state an accrued pecuniary loss: .the artwork’s
`.value remained the same,though null,byits SeCOnd noninclusion in the Catalogue
`The "court-also notesdefendants contention that, pursuant to CPLR 3211 (a) (33), plaintiff lacks
`standing to raise anyclaimsas to the artworkssubmitted by the collectors on the basisthat those claims
`all arise fromthe collectors’ contracts With AMCR, none of which identify plaintiff as a party toor
`intendedbehefic’iarydfthose agreements. Defendants contend that plaintiff lacks standing to raise .‘
`
`claims, in tort or contract,- ‘as to the collectors’v submissions as plaintiff does not allege that any collector
`
`V assigned or delegated their rights under thOSeVagree’ments-to it.‘ The court-observes that, apart from its
`
`allegations that the artworks were sold with "’lattending” implied 'warr'anties,”plaintiff alleges no facts in
`
`the SAC indicatingthatlitmaintained an interest in, or obligation arising from, the artworks it sold to the ,
`
`collectors. Thateach sale—for which there are no docume'nts/invoiCes/contra'cts submitted—included
`
`an implied warranty ofauthentic‘ity doesnot automatically establish a continuing interest in the artWOrks
`
`and plaintiffdoes notallege that any sale was contingent on inclusion Of any'given ‘artWorkiin a
`catalogue raisonné “in fact, (plaintiff alleges that the Catalogue/AMCR existed prior to the Labouchere
`sales yet plaintiffdidnot. Submitthose worksto AMCRprior to the LaboUchere transactions.
`Nevertheless, the court addresses standingas to the collectors submissions as necessary in the
`discussion ofeach claimibelow‘
`
`J
`
`' All claimsinth'e FAC against the individualrdefendantsiwere. previously dismissed by'this court
`
`'in resolving Motion 0011 in the,SAC,'plaintiff does :not assert new-facts as to any act or om'iSSion by Bell
`
`655489/2016 MAYOR GALLERY LTD vs.AGNES MAR‘l‘lN CATALOGUE
`Motion No. 004
`)
`
`V
`
`Page 7 of 16
`’
`
`7of16
`7 of 16
`
`
`
`

`

` FILED. NEW YORK COUNTY CLERK 07m‘2019 12:17 P
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`NYSC.
`3F DGC fiNO»; 14-5
`('3 W Nm'fl'wv ’-
`NYSCEF DOC. NO. 145
`)
`.
`
`
`INDEX NO. 655489/2016
`
`
`
`
`
`
`07/05/2019
`R*.C*.IV'*.D ‘NYSCEF:
`RECEIVED NYSCEF: 07/05/2019
`
`in connection with any of the claims;'accordingly, the complaint is dismissed against Bell in her
`
`individual capacity. As to A Glimch‘er, new factual allegations as to his ”control” of the Committee,
`
`Artifex, and the Catalogue, as well as his personal collection of Agnes Martin artworks being rendered
`
`more valuable by declining to include the artworks at issue here in the Catalogue, may suffice to permit
`
`.
`
`g the court to analyze the claims in the SAC as raised against him in his individual capacity. As to M
`Glimcher, plaintiff now alleges that he was motivated by personal profit in declining to include the
`
`thirteen artworks at issue because he also owns a substantial collection of Agnes Martin artworks.
`
`There are no allegations that M'Glimcher controls AMCR or the Catalogue, however, and, accepting as
`true plaintiff’s assertion that the Committee is controlled by A Glimcher, M Glimcher’s financial
`V
`
`motivationis effectively irrelevant.
`
`In any event, the court will consider the claims plaintiff alleges in the
`
`‘SAC as to defendants AMCR, A Glimcher, and M Gli'mcher as appropriate below.
`
`Standard on a Motion to Dismiss Pursuant to CPLR 3211 ta)
`
`' On a pre-anSWer motion to dismiss, the court affords the complaint a liberal construction,
`
`accords plaintiff with every favorable inference, and accepts the factual allegations as true; however,
`bare legal conclusions and allegations that are flatly contradicted or inherently incredible are not
`afforded their most favorable intendment (see Leon v Martinez, 84 NY2d 83, 87—88 [1994]; Summit
`
`So/omori & Fe/desman vlacher, 21-2 AD2d 407, 487 [ist Dept 1995]). Accordingly, the court addresses
`
`below the claims in'the‘ SAC and whether plaintiff’s amendments have cured the identified deficiencies
`
`and has otherwise satisfied the elements of those claim-s as to each of the remaining defendants.
`Ll. Product disparagement against AMCR and the Glimchers as to all artworks
`
`”[P]roduct disparagement is an action to recover for words or conduct which tend to disparage
`
`or negatively reflect upon thecondition, value, or qUality of a product or property, and .
`
`.
`
`. the elements
`
`of a product disparagement which must be proven are: (1) falsity of the statement; (2) publication to'a
`
`third person; (3) malice (express or implied); and (4) special damagesf’ (Thoma vA/exander& Lou/5a
`
`65548912016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion _No.
`.904 -
`
`'
`
`Page 8 of 16
`
`80f16
`8 of 16
`
`

`

`INDEX NO. 655489/2016
` ‘FILED. NEW YORK COUNTY CLERK 072019 12 17 P ‘
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`
`
`
`
`NYSCEF- 613630
`meO
`mmmmww we rat
`‘
`RECEIVED NYSCEF: 07/05/2019
`NYSCEF DOC. NO. 145
`
`Ca/der Found, 70 AD3d'88, 105 [lst Dept 2009] [alteration in‘ original], Iv den/ed15 NY3d 703 [2010],
`
`quoting 44 NY Jur 2d, Defamation & Privacy § 273).
`
`Even assuming plaintiff has Standing to raise this claim as to all thirteen artworks, only one of
`
`which it submitted to AMCR to be cOnsidered for inclusiOn in the Catalogue (the second Day &.N/'g/7t
`smeission [Plaintiff's Submission'D, and accepting as true plaintiff’s assertion that all the artworks are
`
`authentic, and further that publication of the Notification Letters to the submitting parties (the collectors
`
`and plaintiff, respectively) constitutes publication of a falsehood (i.e., that the work is in'authentic) to a
`third party (i3..e., plaintiff asserts that the Notificatio‘n Letter is a statement to the entire art wOrld) (see
`
`Thoma, 70 AD3d at 105-107 [notingthat ”[t]here is no question that .
`
`s
`
`. treating the (non-inclusion of. an
`
`artwork in a catalogue raisonne) as a publication asserting the Work's inauthenticity to the world at
`
`large wOuld constitute a substantial expansion of the lawj), plaintiff’s claim remains defective.~
`
`With respect to the falsity requirement, the Notification Letters. are clear that they are not to be
`construed as statements that a work'is inauthentic, and the Notification Letters plainly state only that
`the work is not being included in the Catalogue. Further, whether any catalogue raison-né's inclusion of
`
`non—inclusion of an artWork has any bearing on a work's value hasbeen recognized by New York
`' courts as a function of the art marketplace, and it is not for the court to determine what the art market
`
`should or should not credit as reliable (see id at 97—98 [noting that a catalogue raisonné is not
`
`”controlled by any governmental regulatory agency,“ and there is no ”guarantee that the art world will
`
`.
`
`accept (its) validity and reliability"; ”(w)hether the art world accepts (it) as a definitive listing of an artist's
`work is a function of the marketplace, rather than of any legal directive or requirement," thus, a
`
`catalogue’s ”inclusion or exclusion of particular works creates (no) legal entitlements or obligations”]).
`
`First, as to Levy’s submission of Day & N/‘ght, the one-year statute of limitations for a product
`
`disparagement claim accrued, accepting the allegation that the Letter rendered the work unsaleable, on
`
`the date it was received in or arOund September 25 or early-October 2014, and this action was not
`
`initiated until October 17, 2017 (NYSCEF 1 [original summons and complaint]). Even if the statute of
`
`655489/2016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE
`Motion No.
`,004
`
`Page 9 of .16
`'
`
`9of16
`9 of 16
`
`
`
`

`

`
`INDEX NO .
`'65548 9/2016
` AEEi’ 0
`INDEX NO. 655489/2016
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`9 12:17 9'
`
`
`
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 07/05/2019
`gee DOC. NOMléi,
`‘...;,V..,M-W,,..
`a,» ..
`»
`. m
`w
`RECEIVED- vNYSEZErF ; «07w/‘05/201 9
`
`(
`
`.
`
`limitations was extended by plaintiff’svresubmission of Day & Nightin May 2015, plaintiff has the above-
`
`mention'ed issue ofspecial damages relating‘to that work: if it was rendered worthless when-it was not
`
`. included the first time/plaintiff did not sustain a pecuniary loss when the resubmitted work was not
`K
`.‘
`included in the Catalogue. Plaintiff-also has not cured its inability to allege special damages with
`respect to the artworks submitted by Labouchere as no refund—or any pecuniary loss—is claimed by
`
`plaintiff as to those works at this time. Furthermore, asserting only the sale price and sales tax for the
`
`' sales of the artworks and nothing more is‘ insufficient to establish special damages here. There are no I
`
`particular allegations that plaintiff sustained any special damages apart from rescinding the sales to
`certain collectors as a result of the non-inclusion of the works in the Catalogue. Plaintiff does not assert
`
`.in more than conclusory, speculative statements that it has sustained any damage to its business
`< ..
`.
`\
`reputation or future sales.
`
`In any event, even assuming that plaintiff has established special damages with respect to the
`2
`artworks submitted by Shainwald and Kolodny in the-amount of refunds it has issued to those
`
`collectors, plaintiff’s amended allegations in the SAC remain insufficient to adequately state malice for
`
`this claim. Plaintiff’s allegations that the Committee failed to consider the additional information
`submitted with Plaintiff’s Submission of Day & N/ght—including the radiocarbon'testing results and the .
`purported email of Youngerman-r—were included in the FAC and were considered by the court in its
`earlier decision. resolving Motion 001. AMCR, pursuant to the Agreements with the collectors and V
`
`plaintiff, had no obligation to assign any special importance to the documents submitted with each
`Agreement, and there is no obligation .0" the part of AMCR under the Agreements to identify the basis
`of its decision or the procedures or methods it employed in reaching its decisions.
`«The amended allegations that A Glimcher and M Glimcher have'subStantial perSOnal collections
`of Agnes Martin artworks and are, therefore, financially motivated to decline applications for inclusion in
`
`the Catalogue are vague, even accepted as true. Plaintiff’s amended allegations are speculative in that
`
`they do not identify any specific financial, benefit defendants, particularly the Glimchers, obtained in not
`
`655489I2016 MAYOR GALLERY LTD vs. AGNES MARTIN CATALOGUE '
`Motion No. 004
`'
`
`Page 10 of 16
`
`V
`
`-
`
`10 of 16
`10 of 16
`
`
`
`

`

` ' EX NO.
`
`INDEX NO. 655489/2016
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`
`65548942016
`
`
`
`
`
`
`wt. it'll" .....
`.
`-
`, “am“
`“07/05/2019
`-
`i
`I
`.V .«gww \Imlii‘lr‘rc‘lgflfl’”
`'
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 07/05/2019
`13F DOC. NO. 145*
`,.
`.
`,
`n
`R*.C*.IV*.D'"\1YS“1CEF:
`
`.including the thirteen artworks, and combined with plaintiff’s allegation that its principal, James Mayer,
`
`and A Gjimcher have had unspecified ”longstanding frictions” does not establish implied or actual
`
`«malice sufficient to maintain this action. Likewi_se,'the amended allegation that A G‘limcher ”controls”
`
`the Committee and dictates its determinations is a bare legal conclusion that is not entitled to every
`
`favorable inference and does not demonstrate malice for the purpose this product disparagement
`
`claim.
`
`Furthermore, as the court previously stated, nothing in the Agreements with AMCR requires
`defendants-to: provide "information and documents explaining and supporting [AMCR's] decision" to
`include or not include any artwork submitted, allow a submitting person or entity to ”review and rebut
`
`any documents or information relied upon by defendants”, reveal the identities of the Committee
`
`members; or share the policies, practices, and procedures followed by AMCR or the Committee The
`Agreements/are .c-Iea-r in'that they grant A'MCR- the sole discretion review artworks submitted for
`inclusion to the Catalogue as it. deems appropriate (see eg. NYSCEF 94, ex B). Plaintiff's allegations that
`
`the Committee failed to hire a handwriting expert are speculative, as are the allegations that additional
`
`documents submitted by plaintiff'with Plaintiff’s Submission were ignored.
`
`Accordingly, given the numerous pleading issues impeding this claim, the court declines to infer
`malice under the circumstances on\:the record before it in this-SAC, which largely reiterate the
`previously-dismissed allegatiohs in the FAC (eg. Van—Co Tramp. Ca, /nc. vNeW York City 80’. ofEduc,
`
`.971. F Supp 9'0, 106 [EDNY 1997} [discussing New York casesi).
`
`2, Tortious interference with c'o'ntracta ainst AMC‘R and the Glimc-hers as to all artworks
`
`
`
`
`As diSCUSSed above, plaintiff’s amendments in the SAC do not establish continuing obligations
`
`in the sale contracts With the collectors. Furthermore, the only allegations that support defendants’
`
`knowledge that non—inclusion of the artworks in the Catalogue would fOrce the collectors to: rescind and
`
`plaintiff to issue refunds is speculative; there are no allegations that any of the defendants were aware
`
`of the terms of the sale agreements between plaintiff and the collectors, and those terms are not‘even
`
`. 655489I2016 MAYOR GALLERY-LTD vs. AGNES MARTIN CATALOGUE
`MoflonNo.004
`
`Page 11 of 16
`‘
`
`11 of 16
`11 of 16
`
`

`

`
`
`FILED: NEW YORK COUNTY CLERK 07/05/2019 12:17 PM
`FILED.N—EW YORK COUNTY CLERK 074132019 12.17 P
`NYSC.
`3F DOC NO.145'-- ~ * r V 8W9“:" ‘
`NYSCEF DOC. NO. 145
`
`655489/2016
`
`
`INDEX NO. 655489/2016
`13X NO
`
`
`
`
`
`RUCUIVUD’NYSCEF:
`'07/05/2019
`RECEIVED NYSCEF: 07/05/2019
`
`V wholly alleged by plaintiff in the SAC. Moreover, plaintiff’s allegations do not demonstrate that the
`
`Notification Letters were sent with the intent'to induce a breach of anrexisting contract, rather than in
`
`the furtherance of AMCR's purpose. Nothing plaintiff alleges in the SAC has cured the deficiencies
`
`previously identified by the court with the FAC as to this claim, and speculative assertions as to
`
`defendants' knowledge or intent are insufficient to adequately allege the necessary elements.
`
`3-. Tortious interference with prospective business against AMCR and the Glimchers as to all artworks
`
`Plaintiff has failed to cure the deficiencies with this claim as well. There are no nonconclusory or-
`
`non-spchlative alle'gationsin the SAC that establish, or from which it can be inferred, that defendants
`
`were aware of continuing business relatipnships with the collectors or other related customers and
`
`, intentionally acted to harm plaintiff's prospective business relationships, Plaintiff’s allegation that the
`
`_ Collectors have not purchased artworks from plaintiff since the Notification Letters were sent is
`
`insufficient; plaintiff does not allege that ongoing business was being conducted with the collectors, or
`
`any other customers, that was negatively affected by the Notification Letters.
`
`Further, plaintiff has not established that defendants were solely motivated. by malice or used
`
`. wrongful means to interfere with plaintiff’s prospective business relationships. Plaintiff has not alleged
`
`'
`
`that its business relationships, 'aside from the collectors’ particular sale contracts, were impacted bythe
`
`_ Notification- Letters. Conclusory allegations that that the collectors have not done'business with plaintiff.
`
`‘
`
`since the Letters were sent are insufficient to establish interference with future business relationships
`
`' absent specific factual statements from which to infer that the collectors had ongoing, continuous
`
`busin