Opinion
99 Civ. 11056 (JSM)
December 21, 2001
OPINION and ORDER
Defendant Giulia Trojer ("Trojer") has filed an objection to so much of the Magistrate Judge's Report and Recommendations as denied leave to file a proposed amended answer and counterclaim for conversion. For the following reasons, Defendant's motion to file an amended answer and counterclaim is granted.
Trojer alleges that she was involved in a relationship with Miles Davis ("Davis") that began in or about February 1986, and ended in 1988. During that time, Defendant contends that she and Davis collaborated on approximately 30 to 40 paintings; Davis sketched the works and Trojer colored them. Both parties stipulate that prior to Davis' death in 1991, some of the allegedly jointly created paintings were sent to a gallery in Spain, and that Davis sold some at "The Tunnel", a nightclub in New York. Defendant admits that she had knowledge of these sales, but makes no claim of ownership to the artworks that were sold at that time. Defendant contends that, at some point during the relationship, she sketched approximately 20 small cards that Davis used in a video show. When the relationship ended in 1988, Trojer was left with approximately 150 other sketches prepared during her relationship with Davis, most of which she sold.
The Estate commenced this action against Trojer on November 4, 1999, claiming that she had stolen the 150 sketches and demanding the profits she made from their sale. Defendant claims that after the commencement of the suit, she was informed of subsequent sales of "different works" by the Estate in Europe in 1997, 1999 and 2000. By use of the term "different works", the Defendant is attempting to draw a distinction between the artwork sold by the Estate and that personally sold by Davis prior to 1991.
Defendant filed a motion to amend her answer and counterclaims to assert claims for a) recovery of chattel, b) conversion, c) copyright infringement, and d) unjust enrichment, which was denied by the Magistrate Judge on the grounds that the claims were time-barred. In addition, the Magistrate Judge found that Defendant's allegation of a joint copyright interest barred her proposed infringement counterclaim because a joint copyright owner could not assert a claim of infringement against her co-owner. Finally, Defendant's claim of unjust enrichment was found to be preempted by federal copyright law.
Defendant seeks reconsideration only of the ruling with respect to the proposed counterclaim for conversion. Defendant argues that the counterclaim is not based on the works personally sold by Davis during his lifetime, but instead, is based entirely upon sales by the Estate of "different works" in 1997 and between 1999 and 2000, a period of time within the three year statute of limitations.
DISCUSSION
Since the Magistrate Judge's ruling relates to the Defendant's substantive rights, the Court is required to make a review of his ruling de novo. Greene v. WCI Holdings, 956 F. Supp. 509, 513 (S.D.N.Y. 1997),aff'd, 136 F.2d 313 (2d Cir.), cert. denied, 525 U.S. 983 (1998).
Defendant argues that her claim for conversion relates exclusively to the works sold by the Estate and not to those sold by Davis himself. Thus, she claims, the proposed amended answer and counterclaim for conversion of those works falls within the boundaries of the three year statute of limitations since the sales allegedly occurred in 1997, 1999 and 2000, and her original answer was filed on December 27, 1999. See Fed.R.Civ.Proc. Rule 15(c)(2).
Claims of conversion are fact specific and must be examined on a case-by-case basis. For the purposes of the statute of limitations, the question is whether Davis allegedly converted all of the artwork prior to his death, or if the Estate separately converted the "different works" at the times they were sold. If Davis converted all of the artwork prior to 1991, then the Defendant's claim would be time-barred. However, if the "different works" were not converted at that time and underwent a separate conversion in or after 1997, then the Defendant's claim would be within the limitations period.
Under New York law, if possession of property is originally lawful, conversion does not occur until the defendant does something to indicate that he proposes to ignore the owner's rights and assert his own claim to the property, and the statute of limitations runs from that time rather than from the time of the acquisition of the property. MacDonnell v. Buffalo Loan Trust Safe Deposit Co., 193 N.Y. 92, 101 (1908).
Since Davis had lawful possession of all of the artwork prior to his death in 1991, he would have had to commit some act in derogation of Defendant's rights in order to convert the property.
A sale of the artwork would be an act in derogation of Trojer's rights. Thus, it is clear that the statute of limitations for conversion of those works would run from the date of the sales.
The question that remains, however, is whether the sale of some of the art works in which defendant allegedly had an interest constitutes a conversion of all of the artworks in Davis's possession in which she had an interest. An absolute sale is not necessarily required for a conversion of property to occur. "It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. . . . No manual taking . . . is necessary." Pease v. Smith, 61 N.Y. 477, 481 (1875). The issue here is whether, in selling part of a collection of paintings or taking other actions with respect to the collection during his lifetime, Davis exercised "unauthorized dominion" over the entire collection to the exclusion of the Defendant's rights, thus converting them prior to 1991 and beyond the boundaries of the three year statute of limitations.
If Davis exhibited or used the unsold paintings with the assertion of a claim that they were exclusively his own, a conversion could have occurred and the limitations period would have begun to run at the time of such use. On the other hand, the fact that Davis sold a portion of the collection prior to his death might not be enough to convince the trier of fact that he intended to exercise dominion and control over the entire collection in derogation of Trojer's interest.
The issue presented here is best illustrated by the following example. An art collector turns over to a gallery owner six paintings, including a Renoir, two Cezannes, a Van Gogh and two Monets. If the gallery owner sold the Renoir and pocketed the proceeds, he would be liable to the collector for converting the Renoir, but it could not fairly be said that he would be liable in conversion to the collector for the fair market value of all six paintings. On the other hand, if the gallery owner advertised the six paintings for sale as being his own, then the sale of a single painting might well be considered a conversion of the entire collection.
While it is clear from the pleadings that several of the allegedly jointly created paintings were exhibited or commercially used by Davis prior to his death, it is unclear whether all of the paintings sold by the Estate after Davis's death were used by Davis in a manner inconsistent with the rights of Defendant Trojer. Without discovery of all relevant facts it can not be said as a matter of law that prior to his death Davis exercised a degree of control that, if wrongful, would amount to conversion of the entire collection of jointly created works. Without a clear indication that all of the alleged conversions were beyond the limitations period, it would be inappropriate to prohibit the Defendant from amending her pleadings to allege conversion of the paintings sold within the limitations period.
CONCLUSION
Defendant's motion to amend the pleadings to allege conversion of the paintings sold within the limitations period is granted.