Opinion
12190 Index No. 650905/16 Case No. 2019-4902
10-27-2020
Hillel PHILIP, Plaintiff–Appellant, Jim Kempner Fine Art, Inc., Plaintiff, v. G.O.L.A., INC., Doing Business as Woodward Gallery, et al., Defendants–Respondents.
Solomon Zabrowsky, New York, for appellant. Roberts & Roberts, New York (Michael Roberts of counsel), for respondents.
Solomon Zabrowsky, New York, for appellant.
Roberts & Roberts, New York (Michael Roberts of counsel), for respondents.
Kapnick, J.P., Webber, Gonza´lez, Shulman, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered May 13, 2019, which granted defendants' motion for summary judgment dismissing the complaint in which plaintiff sought to recover a $75,000 deposit paid in connection with an offer to purchase a set of Andy Warhol prints, unanimously affirmed, without costs.
Supreme Court correctly construed the term "nonrefundable" by its plain meaning. Where the term in question is capable of being understood by its plain meaning, "there is no need to look further" ( Evans v. Famous Music Corp. , 1 N.Y.3d 452, 458, 775 N.Y.S.2d 757, 807 N.E.2d 869 [2004] ).
Plaintiff Hillel Philip (Philip) was not a party to the contract between defendants and the nonappealing plaintiff, Jim Kempner Fine Art, Inc. (Kempner), and he presents no evidence in support of the contention that "nonrefundable" is not a customary term in the art world, or that such term applied only where a buyer seeks to renege on a purchase. Defendant Kristine Woodward testified that after two failed attempts to sell the artwork to Kempner's clients, she required "proof that the buyer is buying," and therefore required that Kempner enter into a contract with the nonrefundable provision. Philip's claim of unjust enrichment also fails as Kempner received the benefit of his bargain. In exchange for the nonrefundable deposit, he locked in the price until the due date (see Matter of Alpert v. M.R. Beal & Co. , 162 A.D.3d 491, 492, 79 N.Y.S.3d 142 [1st Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4924695 [2018] ).
Defendants' request for sanctions is denied (see Komolov v. Segal , 96 A.D.3d 513, 514, 947 N.Y.S.2d 14 [1st Dept. 2012] ).