Opinion
9853 Index 152721/17
07-11-2019
Joel THOME, Plaintiff–Appellant, v. The ALEXANDER AND LOUISA CALDER FOUNDATION, et al., Defendants–Respondents.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant. Patterson Belknap Webb & Tyler LLP, New York (Thomas W. Pippert of counsel), for respondents.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for appellant.
Patterson Belknap Webb & Tyler LLP, New York (Thomas W. Pippert of counsel), for respondents.
Friedman, J.P. Richter, Tom, Oing, Moulton, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 9, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Summary judgment was properly granted since there is a lack of evidence that defendants imparted any false or disparaging information to the gallery with whom plaintiff was planning to consign his art. The unrebutted evidence is that defendants only informed the gallery that litigation in the Southern District over the art had ended, and as part of that settlement, the pieces were issued registration numbers and an agreed-upon description of the works was formalized (see Vigoda v. DCA Prods. Plus, 293 A.D.2d 265, 266–267, 741 N.Y.S.2d 20 [1st Dept. 2002] ; see also Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 105–106, 890 N.Y.S.2d 16 [1st Dept. 2009], lv denied 15 N.Y.3d 703, 906 N.Y.S.2d 817, 933 N.E.2d 216 [2010] ). Furthermore, the settlement description read to the gallery by an employee of defendant Foundation was the same description that had already been forwarded by plaintiff's sales agent to the gallery, and thus the element of causation necessarily fails (see Retail Advisors Inc. v. SLG 625 Lessee LLC, 138 A.D.3d 425, 30 N.Y.S.3d 11 [1st Dept. 2016] ; Vigoda at 267, 741 N.Y.S.2d 20 ).
Plaintiff's argument that the motion should have been denied because there was a need for further discovery is unavailing since plaintiff only makes conclusory claims that unspecified evidence may be uncovered (see Arelie F. v. Cathedral Props., LLC, 146 A.D.3d 710, 711, 46 N.Y.S.3d 89 [1st Dept. 2017], lv denied 29 N.Y.3d 919, 64 N.Y.S.3d 669, 86 N.E.3d 561 [2017] ; Bailey v. New York City Tr. Auth., 270 A.D.2d 156, 157, 704 N.Y.S.2d 582 [1st Dept. 2000] ). Although issue had just been joined when defendants moved for summary judgment, depositions had been taken of all witnesses involved in the discussions between defendants and the gallery.
We have considered plaintiff's remaining arguments and find them unavailing.