Corneroli v. Kutz, MMXCV126008540S

• Court: Superior Court of Connecticut
• Decision Date: 27 July 2016
• Docket Number: MMXCV126008540S
• Parties: Louis D. Corneroli v. Ronald W. Kutz et al

Louis D. Corneroli
v.
Ronald W. Kutz et al

No. MMXCV126008540S

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

July 27, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

Julia L. Aurigemma, J.

The defendants, Ronald Kutz and Kutz & Prokop, LLP, have moved for summary judgment on the grounds that the plaintiff failed to disclose an expert who can opine on the issue of causation. The plaintiff has objected to the summary judgment.

Factual and Procedural Background

Attorney Kutz represented the plaintiff, Louis Corneroli, in a probate matter and a related appeal to the Superior Court. The probate matter was heard by the Honorable Robert Randich, who issued a decision on February 28, 2008, which disallowed the plaintiff's claim as a creditor of the Estate of Salvatore D'Amico. The decision is set forth below.

After due hearing, THE COURT FINDS that:

Notice of hearing was provided in accordance with the order of notice issued by the court

The court has held two (2) hearings and the parties have each submitted two briefs with supplements on the issues relevant to the instant motion. Based on everything presented to the court, the court makes the following findings. The decedent frequented tag sales in hopes of finding undervalued assets At some point in 1978, he acquired for $3 a painting which turned out to be an original J.D. Sargent painting called " Carmencita Dancing" worth several million dollars. The problem encountered by the decedent was that he was unable to get the painting authenticated and thus was unable to realize the full value of the painting during his lifetime. At some point, the decedent's cousin, Louis Corneroli, began working with the decedent, driving him around and also becoming involved in his various projects including the effort to authenticate the Sargent painting Mr. Corneroli contends that he and the decedent had a partnership in which they agreed to work on matters together and equally split the profits realized from their activity. The estate of Salvatore D. D'Amico strenuously denies any such partnership. For the purposes of the instant motion, which seeks to deny the claim of Mr. Corneroli based on a lack of its being timely filed, the court will assume that such a partnership in fact existed.

After the decedent died, Mr. Corneroli took possession of the painting and entrusted it to Mark Borghi, who owned and operated an art gallery in New York and who was in a better position to have the painting authenticated than Mr. Corneroli. See Paragraph 39 of Complaint filed by Louis Corneroli against Mark Borghi, et al., dated March 23, 2003 in New York Supreme Court (the " Corneroli Complaint"). Unbeknownst to Mr. Corneroli, Mr. Borghi sold the painting to a Mr. Adelson, another art dealer who specialized in Sargent paintings, for approximately $1.2 million. Mr. Adelson turned around and sold the painting for millions more than what he paid for it, again without the knowledge of Mr. Corneroli. At some point, Mr. Corneroli learned of the sales of the painting and filed the Corneroli Complaint in New York, suing Mr. Borghi, Mr. Adelson and John Doe, the still unknown purchaser of the painting, alleging, inter alia fraud, conversion and breach of contract claims. Judge Ira Gammerman, of the Supreme Court of the State of New York, after hearing testimony from Mr. Corneroli on the Corneroli Complaint, found that Mr. Corneroli testified that he had an agreement with Mr. Borghi under which the parties were to divide the sales price of the sale of the painting with Mr. Borghi receiving half and Mr. Corneroli receiving half. Corneroli v. Borghi et al., Supreme Court of New York, Trial Term Part 27, July 16, 2003, Pages 357-58 (hereinafter referred to as " Corneroli Trial Transcript, Page "). Mr. Corneroli freely acknowledged during the trial that both the decedent while living and his estate had a 50% interest in the painting. Corneroli Trial Transcript, page 219. The Corneroli Complaint, however, alleged that Mr. Corneroli was the sole owner of the painting. See Comeroli Complaint, para. 57.

After hearing the testimony of Mr. Corneroli, the New York Court dismissed the case as to all parties except Mr. Borghi.^[1] It is crystal clear from the transcript that the claim against Mr. Adelson was dismissed " with prejudice ." See Corneroli Trial Transcript, page 363. The New York Court further found the potential recovery from Mr. Borghi in Mr. Corneroli's favor to be approximately $313, 000, which was roughly one quarter of the sales price of the sale of the painting from Mr. Borghi to Mr. Adelson. See Corneroli Trial Transcript, page 361. Mr. Corneroli acknowledged that he received about that amount in either paintings or cash in July 2003 and that the parties thereafter returned to Connecticut to open an estate for the decedent so that the estate could pursue its share.

The administrators of the newly-opened Estate of D'Amico took a vastly different view of the history than Mr. Corneroli. Based on their belief that Mr. Corneroli had denied knowledge as to the location of the painting shortly after the death of the decedent and further had not disclosed that he had given the painting to the New York art dealer until shortly before the proceedings in New York occurred, the estate took the position that there never was any partnership and that Mr. Corneroli had absconded with the painting after the decedent died . The estate filed a lawsuit in federal court in December 2003, which suit was dismissed without prejudice. A new suit was filed in July 2005 in which the estate sued inter alia, Mr. Corneroli, Mr. Borghi and Mr. Adelson alleging that the painting had been stolen by Mr. Corneroli and that title never passed due to this fact . The estate sought a declaratory judgment that it was the owner of the painting, a replevin of the painting back to the estate and damages from Mr. Corneroli for his alleged misdeeds. Mr. Corneroli filed an answer with special defenses to the complaint in which he generally alleged that his actions were taken as a partner of the decedent and that he did not steal the painting. Mr. Corneroli did not, however, file a counterclaim or seek to join the plaintiff in its claims against the other defendants, including Mr. Adelson .

A two-day mediation to resolve the case occurred on December 11-12 at New Britain Superior Court. Counsel for Mr. Corneroli attended on the first day but did not return for the second day. The remaining parties reached an agreement on the second day which involved Mr. Adelson paying the plaintiff the sum of $2.4 million . In a lengthy agreement put on the record the plaintiff indicated that the settlement was subject to the plaintiff obtaining a release of Mr. Corneroli and the probate court approving the settlement as well. It does not appear any formal notice was provided to Mr. Corneroli of the settlement, however, his attorney was called in connection with executing a release, which was refused. The probate court hearing occurred and the settlement was approved by the probate court. The case against Mr. Corneroli was withdrawn. Thereafter, Mr. Corneroli, in reviewing the probate file, learned about the settlement amount for the first time. He filed a claim with the estate dated August 23, 2007 in which he stated that he was a partner with the decedent in attempting to get the painting authenticated and that their agreement was that any funds received as a result of getting the painting authenticated would be split equally and thus he was entitled to receive 50% of the 2.4 million settlement. See Proof of Claim letter of Louis Corneroli dated August 23, 2007. The instant Motion for Disallowance of Claim was filed on or about October 5, 2007, alleging that the claim was untimely on its face.

The analysis of this situation must begin with a discussion of partnership law. As discussed earlier, since the position of the estate is that the claim is unenforceable on its face, the court has to assume the claim of partnership by Mr. Corneroli is true for the purposes of disposing of this motion. The parties agree on the law as it pertains to partnerships and the effect of the death of one partner. In the absence of an agreement otherwise the death of a partner dissolves the partnership, and the legal ownership and right of control of the partnership assets vests in the surviving partner, which he holds however as a quasi trustee for the estate of the deceased partner. Casey v. Hurley, 112 Conn. 536, 152 A. 892 (1931). The surviving partner has a duty to liquidate the affairs of the partnership and to account to the representative of the deceased partner, and pay over to him the estate's share of the net partnership assets. Id. From this point the parties part paths, but the court believes the law applied to the facts of this case clearly sets forth the correct outcome.

In a sense, Mr. Corneroli's actions after the death of Mr. D'Amico track his responsibilities under the common law of partnership. If in fact a partnership existed, he was under a duty to gather the partnership assets, liquidate them, pay all partnership bills and then distribute the balance to the partners in accordance with each partner's interest. In effect, his attempts to get the painting authenticated and sold once authenticated do support the conclusion that he was acting as a surviving partner. While he did engage in some questionable acts, such as bringing the New York action in his own name claiming sole ownership of the painting and allegedly denying knowledge of the location of the painting to members of the decedent's family, when questioned under oath in the New York court he acknowledged the interest

...