Mirvish v. Mott

• Decision Date: 27 May 2010
• Citation: 2010 N.Y. Slip Op. 04525,75 A.D.3d 269,901 N.Y.S.2d 603
• Parties: David MIRVISH, Petitioner–Respondent,v.Hanno D. MOTT, etc., et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

75 A.D.3d 269
901 N.Y.S.2d 603
2010 N.Y. Slip Op. 04525

David MIRVISH, Petitioner–Respondent,
v.
Hanno D. MOTT, etc., et al., Respondents–Appellants.

Supreme Court, Appellate Division, First Department, New York.

May 27, 2010.

[901 N.Y.S.2d 605]

Rottenberg Lipman Rich, P.C., New York (Harry W. Lipman of counsel), for appellants.Carter Ledyard & Milburn LLP, New York (Gary D. Sesser, Ronald D. Spencer, Susan B. Kalib and Judith M. Wallace of counsel), for respondent.ANGELA M. MAZZARELLI, J.P., EUGENE NARDELLI, JAMES M. CATTERSON, LELAND G. DeGRASSE, NELSON S. ROMÁN, JJ.DeGRASSE, J.

[75 A.D.3d 271] The petition's prayer for relief calls for a declaration that petitioner is the owner of a 1,100 pound bronze sculpture, by the noted sculptor Jacques Lipchitz, known as The Cry. In addition, the petition sets forth claims sounding in conversion, replevin and constructive trust, and calls for ancillary relief under the Surrogate's Court Procedure Act. Petitioner claims that the sculpture was gifted to his assignee, Biond Fury, by the decedent, Yulla H. Lipchitz. The gift was allegedly effected by way of a handwritten instrument which reads: “I gave this sculpture ‘The Cry’ to my good friend Biond Fury in appreciation for all he did for me during my long illness. With love and my warm wishes for a Happy Future, Yulla Lipchitz/ October 2, 1997, New York.” The writing is on the back of a photograph of the sculpture. According to Fury's deposition, the decedent gave him the writing in October 1997. Fury further testified that at that time, the sculpture was being stored at the Michael Leonard Warehouse in New York at his expense. According to Fury, the sculpture remained at the warehouse until 1998 when respondent Mott, the decedent's son and executor of her will, had it removed from the warehouse and placed with Marlborough Gallery, a New York-based art gallery. Fury testified that he did not remember authorizing respondent to remove The Cry from the warehouse. The decedent died on July 20, 2003, and her will was admitted to probate on August 13, 2003.

By letter from counsel dated March 9, 2004, Fury asserted his claim of ownership of the sculpture and demanded its immediate delivery by the decedent's estate. This letter represents [75 A.D.3d 272] Fury's first such demand upon respondent. On September 15, 2005, Fury sold his purported interest in the sculpture to petitioner. By letter dated October 20, 2005, respondent's counsel informed petitioner's counsel that the sculpture had been sold “over a year ago.” In July 2006, petitioner brought the instant proceeding. Respondent moved and petitioner cross-moved for summary judgment. Surrogate's Court denied respondent's

[901 N.Y.S.2d 606]

motion and granted petitioner's cross motion, finding that the decedent intended to and did make a gift of The Cry to Fury who accepted it.

The elements of a gift are intent on part of the donor to make a present transfer, actual or constructive delivery to the donee, and acceptance by the donee, and the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence ( Gruen v. Gruen, 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 [1986] ). The requirement of delivery may be satisfied by physical delivery of the gift itself or a constructive or symbolic delivery such as by an instrument sufficient to divest the donor of dominion and control over the property ( id. at 56, 505 N.Y.S.2d 849, 496 N.E.2d 869). What is sufficient to constitute delivery “must be tailored to suit the circumstances of the case” ( Matter of Szabo, 10 N.Y.2d 94, 98, 217 N.Y.S.2d 593, 176 N.E.2d 395 [1961] ). Hence, a gift instrument, such as the one alleged in this case, would be an appropriate vehicle for the symbolic delivery of a gift consisting of a monumental work of art such as The Cry ( see e.g. Hawkins v. Union Trust Co. of N.Y., 187 App.Div. 472, 175 N.Y.S. 694 [1919] ). For reasons that follow, however, CPLR 4519 stands as a bar to summary judgment in favor of petitioner.

A party moving for summary judgment must sufficiently demonstrate entitlement to judgment, as a matter of law, by tendering evidentiary proof in admissible form ( LaGrega v. Farrell Lines, 156 A.D.2d 205, 548 N.Y.S.2d 464 [1989] ). The record does not support petitioner's assertion that the decedent's delivery of the gift instrument to Fury is undisputed. To be sure, the fact of the gift (which must include delivery) is specifically denied in respondent's answer. Fury's testimony is the only evidence of the decedent's delivery of the gift instrument to him. This testimony, however, is inadmissible under CPLR 4519 because Fury is the person from whom petitioner derives his interest. Evidence that is inadmissible under CPLR 4519 cannot be used to support a motion for summary judgment ( see Beyer v. Melgar, 16 A.D.3d 532, 792 N.Y.S.2d 140 [2005] ). It was, therefore, error for the court to grant petitioner's cross motion for summary judgment. At the same time, CPLR 4519 may not be asserted in support of [75 A.D.3d 273] respondent's motion for summary judgment ( see Salemo v. Geller, 278 A.D.2d 104, 718 N.Y.S.2d 35 [2000], citing Phillips v. Kantor & Co., 31 N.Y.2d 307, 313, 338 N.Y.S.2d 882, 291 N.E.2d 129 [1972] ).

In support of his motion, respondent argues that the gift is invalid because petitioner has proffered no evidence that the decedent ceded dominion and control over the sculpture to Fury. Here, respondent relies upon a November 1998 letter from Marlborough Gallery to the French Minister of Culture and Communication. The letter reflects an arrangement “with the Lipchitz family” whereby Marlborough loaned The Cry to the Government of France as an exhibit for a period of three years or until the decedent's death, whichever occurred first. The letter speaks of the possibility of a sale of the sculpture by the Lipchitz family at the end of the loan. It also provides for the return of the sculpture to the family in the event it were not purchased. Respondent testified that at the completion of the...