Opinion
38886/05.
Decided August 13, 2008.
McLAUGHLIN STERN, LLP, NEW YORK, NEW YORK, ATTORNEYS FOR PLAINTIFF.
ROSS M. GERBER, ESQ., VALLEY STREAM, NEW YORK, ATTORNEYS FOR DEFENDANT.
Is it, or is it not, a Warhol? At issue in this case is the authenticity of an artwork entitled "315 Johns." Was it created by Andy Warhol or by one of his studio assistants, Gerard Malanga.
Background
Plaintiff, Gerard Malanga ("Malanga"), is an artist, poet and film maker. Between 1963 and 1970, Malanga was an assistant to Andy Warhol, the famed artist. Malanga, who is widely considered to have been Warhol's right-hand man, was, among other things, involved in creating Warhol's iconic silkscreened paintings at the New York City studio known as the Factory. Defendant, John Chamberlain ("Chamberlain"), a world-renowned sculptor, was a friend and colleague of Warhol's.
The artwork known as "315 Johns" consists of 315 eight inch square canvas silkscreens depicting the defendant Chamberlain's face. Plaintiff alleges that in 1971, himself, along with fellow artists Jim Jacobs ("Jacobs") and the late Irene Harris, created the silkscreen paintings that were later incorporated into "315 Johns". Plaintiff alleges that he and his colleagues created in excess of 320 of the Chamberlain portraits. The portraits were allegedly done in the style of Andy Warhol, but without his knowledge or supervision.
Jacobs avers that the portraits were created at Jacobs' home in Great Barrington, Massachusetts. Jacobs claims that in 1975 or 1976 he moved the portraits to his loft in Manhattan. When Jacobs vacated his loft in 1977, he moved the portraits, along with other possessions, to the Chamberlain's loft where the defendant allegedly agreed to store them without charge. Marilyn Chamberlain, the defendant's ex-wife, avers that the portraits were moved to the Connecticut home that she shared with her then-husband, the defendant. Marilyn Chamberlain believed that the portraits became her property upon her divorce in 1983 and took possession of them. In 1988, Marilyn Chamberlain visited her former husband at his studio in Florida and left the portraits with him.
Plaintiff maintains that he gave no further thought to the portraits until he ran into the defendant at an exhibition on February 18, 2004. Plaintiff alleges that, at the exhibition, Chamberlain told him that he had sold the portraits for $5,000,000. Plaintiff was given the impression that defendant had depicted the artwork as a genuine Warhol and had sold it as such. Plaintiff then commenced this action on December 23, 2005 for conversion and replevin.
Defendant contends that Andy Warhol, created 324 silkscreen portraits of defendant, 315 of which make up the artwork "315 Johns." Warhol allegedly created the portraits with the intention that they be incorporated into a large artwork. Defendant avers that these portraits were delivered to him by Warhol, in exchange for artwork created by the defendant. Chamberlain then had the portraits assembled into the artwork "315 Johns." In 1999, Chamberlain submitted "315 Johns" to the Andy Warhol Art Authentication Board (the "Authentication Board"). On June 26, 2000, the Authentication Board issued an opinion stating that "315 Johns" as created by Andy Warhol. Chamberlain asserts that he sold the artwork later in 2000.
Defendant moves for summary judgment on the grounds that the action is barred by the three year statute of limitations. Plaintiff moves for leave to serve an amended complaint which alleges causes of action for replevin, conversion and, breach of a bailment contract.
Discussion
As a threshold matter, leave to amend should be freely granted. (C.P.L.R. 3025, subd. (b)); Inter-Provincial Commercial Discount Corp. v. Plastic Processes, 25 AD2d 781 [2d Dept 1966]). However, "the court is not required to permit futile amendments which may lead to needless litigation"( Saferstein v. Mideast Sys.,143 AD2d 82, 83 [2d Dept 1988]). Thus, upon consideration of the motion for leave to amend, the court should not examine the merits or legal sufficiency of the proposed amendment unless it is "'clearly and patently insufficient on its face'" ( Fisher v. Ken Carter Inds., 127 AD2d 817, 818 [2d Dept 1987], quoting from De Forte v. Allstate Ins. Co., 66 AD2d 1028 [4th Dept 1978]).
The defendant's first argument in opposition to the cross motion is that the decision by the Review Board is conclusive evidence that "315 Johns" is an authentic Warhol and, therefore, plaintiff's version of the facts should be disregarded. The decision of the Review Board, however, is not binding on this court. Moreover, whatever persuasive authority the Review Board's decision might ordinarily confer is undercut by the fact that it was made without consideration of the plaintiff's allegations.
Chamberlain's next argument is that the proposed first cause of action for replevin is without merit because the artwork was sold in 2000 and, therefore, replevin cannot be accomplished. Chamberlain submits that his affidavit is supported by affidavits from his attorney and accountant. These supporting affidavits, however, only support the fact that defendant sold a Warhol, not "315 Johns," specifically. In addition, Chamberlain is unable to produce the bill of sale, the name of the buyer, the shipping information or any other documentation that would be expected from a sale of this magnitude. To succeed on the grounds of documentary evidence, the evidence"must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff's claim" ( Fernandez v. Cigna Prop. Cas. Ins. Co., 188 AD2d 700 [3rd Dept 1992]). The defendant's submissions fall far short of this standard.
The second proposed cause of action is for conversion. Chamberlain rgues that this claim is barred by the three year statute of limitations (CPLR § 214). Chamberlain maintains that the statute began to run when he submitted the artwork to the Review Board. Conversion is the "unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights" ( Employers' Fire Ins. Co. v. Cotten, 245 NY 102, 105; Carlson v. Stern's Boatyard, Inc. 79 AD2d 981 [2d Dept 1981]). Although Chamberlain did assert that he owned "315 Johns" when he submitted it to the Review Board for authentication, that assertion did not operate to the exclusion of any rights Malanga might have. Thus, the submission to the Review Board did not commence the running of the Statute of Limitations. While the sale of the artwork would commence the running of the Statute of Limitations, the alleged sale has not been conclusively established.
The proposed third cause of action alleges the breach of a bailment contract. Because breach of contract is subject to a six year statute of limitations, this cause of action is timely even if the date of the alleged sale is proven accurate. In addition, the Statute of Limitations begins to run "when the bailor demands the property and the bailee refuses to deliver it" ( Heede Hoist Mach. Co. v. Bayview Towers Apts., 74 AD2d 598 [2d Dept 1980]). However, [a]n owner of property who has knowledge of its location cannot unreasonably delay making demand upon the person possessing the property" ( Martin v. Briggs, 235 AD2d 192, 198 [2d Dept 1997]). Whether or not the plaintiff's delay in demanding the return of the property was reasonable cannot be determined at this juncture.
Finally, the defendant argues that all the plaintiff's claims are barred by the equitable doctrine of laches. Injury or prejudice is an essential element of the defense of laches. ( Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991]). This issue is also requires factual determinations and, therefore, cannot be resolved on these motions.
Conclusion
Based on the foregoing, the plaintiff's motion to amend the pleadings is granted and the defendant's motion for summary judgment is denied without prejudice.
This shall constitute the Decision and Order of the Court.