Opinion
07-30-2024
Yosef Liberow, Plaintiff, v. Liana Kirvan, Defendant.
Unpublished Opinion
James P. Mulley Jr., Penfield Town Justice.
Plaintiff purchased a violin bow from defendant. The advertisement for the bow described it as a "Tubbs" bow, a reference to James Tubbs, a master bow maker from England who made violin bows in the late 19th and early 20th centuries. Plaintiff now seeks a refund of the purchase price, claiming that the bow is not an authentic "Tubbs" bow. Plaintiff's claim sounds in breach of warranty and fraud.
FACTS
Defendant, an accomplished violinist with the Rochester Philharmonic Orchestra, purchased a violin and three bows at an estate sale in 2022. She had one of the bows repaired and in January 2024 listed that bow for sale on Facebook for $3,000. Defendant described the bow as a "Tubbs" bow, and noted that she had the certificate the bow was purchased with. The accompanying certificate, prepared in 1986 by an "International Appraiser", stated that the bow was valued at $8,000. Plaintiff, an amateur violinist who also collects and resells instruments, contacted defendant via Facebook and the parties negotiated a sale price of $1,950 for the bow.
After receiving the bow, plaintiff sent defendant a message claiming that "the bow isn't an authentic Tubbs" and that "the document you provided appears to be entirely fabricated." Plaintiff demanded that defendant refund the purchase price, stating, "It's simply not worth anything close to what I paid for it." Defendant refused to refund the money, and plaintiff then filed this action seeking damages in the amount of $1,950.
LEGAL ANALYSIS
Small claims court is designed to provide litigants with a simple, informal and inexpensive procedure for the prompt determination of claims. Although procedural rules may be relaxed, cases must be decided according to the rules and principles of substantive law (Uniform Justice Court Act §§ 1802, 1804).
Under New York law, the transaction at issue constitutes a contract for the sale of goods governed by Article 2 of the Uniform Commercial Code (UCC). Three provisions of the UCC pertain to a seller's warranty for the quality of the goods sold. UCC § 2-313 deals with express warranties. UCC §§ 2-314 and 2-315 deal with implied warranties (see, Petti v Deridder, 78 Misc.3d 690 [Penfield Just Ct 2023]).
UCC § 2-313 Express Warranty
Under UCC § 2-313, a seller who makes representations about the condition of goods sold can be liable for breach of express warranty. New York courts have found express warranties were created where the seller made representations about the goods in advertisements (see, e.g., Murrin v Ford Motor Co., 303 A.D.2d 475 [2d Dept 2003]; Eddington v Dick (87 Misc.2d 793 [Geneva City Ct 1976]) and also where the seller made representations about the goods during negotiations prior to the sale (see, e.g., Carter v Gilbert (18 Misc.3d 1112 [Ossining Just Ct 2008]; Cumo v Bray, 57 Misc.3d 808 [Glens Falls City Ct 2017]).
In this case, the representations made in the advertisement did not create an express warranty regarding the authenticity of the bow. Critically, the certificate that defendant referred to in the advertisement and supplied to plaintiff is a certificate of appraisal; not a certificate of authenticity (Plaintiff's Exhibits 1 and 2).
An appraisal is an opinion of value. The appraiser is not providing opinions or warranties on such matters as authenticity, title, and condition, even though those matters may affect value (see, Understanding Due Diligence, Including Matters of Authenticity, 2012 WL 5870226). On the other hand, a certificate of authenticity in this context is best defined as a statement of fact or opinion in which art experts attribute a work of art to a particular artist. Authentication of art depends chiefly on the scholarship of art experts (Thome v Alexander & Louisa Calder Found., 70 A.D.3d 88 [1st Dept 2009]; Christie's Inc. v SWCA, Inc., 22 Misc.3d 380 [Sup Ct, NY County 2008]).
The distinction is demonstrated by comparing two exhibits offered by defendant - one is an advertisement by another seller listing a "Tubbs" bow (Defendant's Exhibit E), the other is the advertisement defendant published in this case (Defendant's Exhibit F). The unrelated sale was accompanied by a document titled "Certificate of Authenticity" and states "I certify that this violin bow was made by James Tubbs in London, England ca. 1860." In contrast, the document accompanying the bow defendant sold to plaintiff was prepared by an individual who identified himself in bold letters at the top of the document as an "International Appraiser" and offers an opinion that the bow was valued at $8,000. The document is not titled "Certificate of Authenticity" and does not contain a statement certifying that the bow was made by James Tubbs.
In short, the document defendant provided to plaintiff in this case is an appraisal; it is not a warranty regarding the bow's authenticity. Under the UCC, an affirmation merely of the value of the goods does not create a warranty (UCC 2-313 [2]).
Next, the court considers whether defendant made an express warranty during negotiations prior to the sale. Both parties testified that all negotiations were conducted via direct messaging on Facebook. All messages exchanged between the parties were introduced into evidence (Defendant's Exhibit B). The messages reveal that defendant did not expressly warrant the bow's authenticity during the negotiations. Instead, defendant made clear that she was not in a position to authenticate the bow:
Plaintiff: I'll take your word that it is a genuine Tubbs.
Defendant: I have not had it authenticated other than the certificate it came with.
Later, the conversation turned to the certificate of appraisal. The parties had the following exchange regarding the appraiser, Roman Z. L. Storch:
Plaintiff: Checked up on the person, not very established per se, but interesting nonetheless.
Defendant: Yes, I haven't been able to find much about him, but he seemed to be in the music business in the 80's.
Plaintiff: I found a few references to him.
Defendant: More than I have been able to find.
Thus, during negotiations defendant clearly conveyed to plaintiff that she did not have the bow authenticated. Moreover, when the conversation turned to the qualifications of the appraiser, defendant did not vouch for him.
To summarize, the advertisement included a certificate stating the appraised value of the bow; nothing in the advertisement or certificate expressly warranted its authenticity. Furthermore, defendant did not warrant the bow's authenticity during the negotiations. To the contrary, she stated that it was not authenticated. Consequently, the court concludes that defendant did not make an express warranty regarding the bow's authenticity.
UCC § 2-314 - Implied Warranty of Merchantability
The implied warranty of merchantability, found in UCC § 2-314, states that a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. The status of the seller is critical in determining the applicability of the implied warranty of merchantability. Merchants are deemed to give an implied warranty of merchantability; non-merchants are not (Nobles v Akinwande, 66 Misc.3d 1227 (NYC Civ Ct 2020).
UCC § 2-104[1] defines a merchant as a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. Defendant is not a merchant as defined by the statute.
First, defendant does not regularly deal in the sale of violin bows. During negotiations plaintiff asked "do you have a general stock?" Defendant replied "I am a musician, selling some of my personal collection items." There is no evidence to support a finding that defendant regularly deals in the sale of violin bows.
Next, any knowledge or skill regarding violin bows plaintiff held herself out as having clearly related to the playability of the bow; it did not extend to authenticating vintage bows. As noted above, when asked if the bow was genuine, she stated she was a musician, not an authenticator. Additionally, during negotiations defendant focused on the playability of the bow. Defendant stated, "It's an excellent stick, very good playability", and later, "you will love playing on it."
Under these circumstances defendant is not a merchant; but is more accurately described as a casual or occasional seller (UCC § 2-104, Comment 1; Colopy v Pitman Mfg. Co., Inc. (206 A.D.2d 864 [4th Dept 1994]). Since defendant is not a merchant, no implied warranty of merchantability arises from this transaction.
The court also considered whether plaintiff had a valid cause of action under UCC § 2-315 - Implied Warranty of Fitness for Particular Purpose or under NY Arts and Cultural Affairs Law § 13.01. UCC § 2-315 usually applies to merchants, but unlike the implied warranty of merchantability, it may apply to non-merchants where justified by the particular circumstances (UCC § 2-315 [Official Comment 4]). For a claim to arise under this section, it must be established that the buyer was relying upon the seller's skill and judgment to select and furnish the goods (Saratoga Spa and Bath v Beeche Systems Corp, 230 A.D.2d 326 [3d Dept 1997]). As discussed above, plaintiff relied on defendant's skill and judgment regarding playability, not authenticity. Therefore, plaintiff is not entitled to recovery under the implied warranty of fitness for a particular purpose. NY Arts and Cultural Affairs Law § 13.01 gives consumers who purchase art extra protections beyond those afforded by the UCC. This law protects consumers who purchase art from large art galleries and auction houses who identify the artwork with a particular author or authorship. It does not apply to transactions between lay people (Christie's Inc. v SWCA, Inc., 22 Misc.3d 380 [Sup Ct, NY County 2008].
Fraud
Plaintiff asserted at trial that defendant knew the bow was not an authentic "Tubbs", but nonetheless represented that it was an original. This claim sounds in fraud. To prevail on a claim of fraud plaintiff must show (1) a misrepresentation which was false and known to be false by defendant, (2) made for the purpose of inducing the other party to rely on it, (3) justifiable reliance of the other party on the misrepresentation, and (4) injury (Spector v Wendy, 63 A.D.3d 820 [2d Dept 2009]). The proof at trial fell far short of establishing fraud.
First, plaintiff failed to establish that defendant knowingly made a false representation regarding the bow's authenticity. There is no evidence whatsoever that defendant knew that it was not a "Tubbs" bow. The court credits defendant's testimony that she described it as a "Tubbs" bow because it bore the "Tubbs" markings, the appraiser described it as a "Tubbs" bow, and because the craftsman at the violin shop where she had it repaired did not question its authenticity. Consequently, the court finds that defendant reasonably believed that it was an authentic "Tubbs" bow.
It is also notable that plaintiff failed to establish that the bow is not, in fact, a "Tubbs" bow. Plaintiff did not offer expert testimony regarding the bow's authenticity (Han v Chen, 213 A.D.3d 453 [1st Dept 2023]). On that issue, plaintiff offered and the court admitted two hearsay statements from experts who believed the bow was not authentic. In small claims proceedings hearsay is admissible subject to the weight given to it (Miller v Kaminer, 62 Misc.3d 397 [Civ Court NYC 2018]). The hearsay statements offered by plaintiff in this case are entitled to little weight - authentication involves the exercise of the expert's informed judgment and is highly subjective; even highly regarded and knowledgeable experts may disagree on questions of authentication (Thome v Alexander & Louisa Calder Found, 70 A.D.3d 88 [1st Dept 2009]. Thus there was insufficient proof that any misrepresentations were made, and no proof that defendant knowingly made any misrepresentations.
Furthermore, even if the bow was inaccurately described as a "Tubbs" bow, plaintiff failed to establish that he justifiably relied on that representation. A plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant's representations where he has means of knowing, by the exercise of ordinary intelligence, the quality of the representation (TD Bank, N.A. v Keenan, 221 A.D.3d 1040 [2d Dept 2023]).
Here, it was not reasonable for plaintiff to rely on the advertisement or the negotiations to establish the bow's authenticity. As detailed above, during negotiations plaintiff was advised that the bow had not been authenticated and that defendant's research revealed little about the appraiser. That information prompted plaintiff's own research, which also raised questions regarding the qualifications of the appraiser. The sale price is also relevant. Plaintiff purchased the bow for $1,950. The evidence showed that a properly authenticated "Tubbs" bow could sell for upwards of $25,000. On notice that the defendant did not authenticate the bow or vouch for the appraiser plaintiff chose to proceed with the purchase, undoubtedly hoping to acquire a very valuable asset for a fraction of its worth. Under these circumstances, plaintiff bore the risk that the bow was not genuine.
Accordingly, plaintiff's claim is dismissed.
This constitutes the decision and judgment of the Court.