Rosen v. Spanierman

• Decision Date: 24 April 1989
• Docket Number: No. 87 Civ. 9045(PKL).,87 Civ. 9045(PKL).
• Citation: Rosen v. Spanierman, 711 F.Supp. 749 (S.D. N.Y. 1989)
• Parties: Hobart E. ROSEN, Norma Rosen, and Frances Lipman, Plaintiffs, v. Ira SPANIERMAN and Ira Spanierman Gallery, Defendants.
• Court: U.S. District Court — Southern District of New York

711 F. Supp. 749

Hobart E. ROSEN, Norma Rosen, and Frances Lipman, Plaintiffs, v. Ira SPANIERMAN and Ira Spanierman Gallery, Defendants.

No. 87 Civ. 9045(PKL).

United States District Court, S.D. New York.

April 24, 1989.

Scheffler Karlinsky & Stein, New York City (Martin Karlinsky, of counsel), for plaintiffs.

Rose & Boxer, New York City (Barry J. Boxer, of counsel), for defendants.

ORDER & OPINION

LEISURE, District Judge:

Plaintiffs Hobart E. Rosen, Norma Rosen (collectively "the Rosens") and Frances Lipman ("Lipman") brought this action against defendants Ira Spanierman and the Ira Spanierman Gallery (collectively "Spanierman"),¹ asserting claims for breach of warranty, common law fraud, professional negligence, and negligent misrepresentation. Defendant moved for summary judgment, pursuant to Fed.R.Civ.P. 56(c), contending that plaintiffs' claims are barred by the applicable statutes of limitation and do not constitute claims upon which relief can be granted. The action is currently before the Court on defendant's motion for summary judgment.

FACTUAL BACKGROUND

In 1968 the Ira Spanierman Gallery ("Spanierman Gallery") displayed a portrait titled "The Sisters (or Misses) Wertheimer" (the "Painting") in New York City. The Rosens viewed the Painting and negotiated for its purchase. Lipman herself purchased the Painting for $15,000 on December 20, 1968, as a present for her daughter and son-in-law, the Rosens. As far as the record indicates, Lipman was never present in the Ira Spanierman Gallery, nor did she ever meet with Ira Spanierman.

Spanierman guaranteed, in the written invoice, that the Painting was an original work by John Singer Sargent ("Sargent"), allegedly "acquired from a member of the Wertheimer family, from the estate of Michael Gluck." Defendants' Notice of Motion for Summary Judgment ("Defendants' Motion"), Exhibit E. The invoice was addressed to "Mrs. Samuel Frances Lipman c/o Mr. Hobart E. Rosen." Id. Lipman then made a gift of the Painting to the Rosens.

Subsequently, the Rosens requested appraisals of the Painting, from Spanierman, for insurance purposes. Spanierman, without reviewing the Painting, provided five written appraisals. The appraisals were as follows: in 1975 for $25,000; in 1979 for $38,000; in 1980 for $52,000; in 1984 for $110,000; and, in 1986 for $130,000. Plaintiffs' Opposition to Defendants' Motion ("Plaintiffs' Opposition"), Exhibit C. Plaintiffs also allege other appraisals of the Painting were made. In 1984, the Rosens wrote to Warren Adelson ("Adelson") at the Coe Kerr Gallery, enclosing a photo of the Painting for possible inclusion in a "catalog raisonne" of the works of Sargent. Hobart Rosen simultaneously requested an appraisal of the Painting. Plaintiffs' Opposition, Exhibit D. Allegedly, the Rosens were informed that the Coe Kerr Gallery did not provide appraisals. Affidavit of Hobart E. Rosen, sworn to on September 22, 1988 ("Rosen Affidavit"), ¶ 24.² Additionally, on or about January 15, 1987 Peter Rathbone of Sotheby's Parke Bernet ("Sotheby's"), allegedly conducted an appraisal of the Painting, valuing it for between $175,000 and $225,000. Rosen Affidavit ¶ 27.

In 1987, Jay Cantor ("Cantor") of Christie's Appraisals ("Christie's") viewed the Painting and valued it at $250,000 in a written appraisal. Rosen Affidavit ¶¶ 27, 28. Subsequently, the Rosens authorized Christie's to place the Painting at auction. However, the Rosens were allegedly informed that the Painting was "possibly a forgery" and therefore would not be placed at auction. Rosen Affidavit ¶ 30. Christie's immediately withdrew the Painting from the sale.

Plaintiffs assert that the Painting is a replica of a full length portrait, by Sargent, which is hanging in the Tate Gallery, England. On June 5, 1987, plaintiffs allegedly brought the Painting to Adelson, who compared the Painting to an authentic Sargent and demonstrated to the Rosens why the Painting was not authentic. Rosen Affidavit ¶ 33. Plaintiffs assert that this was the first time they knew with certainty that the Painting was not authentic and had no significant economic value. Rosen Affidavit ¶ 34. Thereafter, plaintiffs initiated this suit.

STANDARD FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment ... it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court then must determine whether there does indeed exist a genuine issue as to any material fact; "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is genuine issue for trial." Id., 477 U.S. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.1989).

The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, Rule 56 does not require that the moving party support its motion with affidavits or other similar materials which negate the opponents' claim. Rather, "the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. The burden on the moving party will be "discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554.

Indeed, once a motion for summary judgment is properly made, the burden then shifts to the non-moving party, which "must set forth specific facts showing that there is a genuine issue for trial." Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. Because the District Court must determine "whether there is a need for trial—whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of any party," id.—the non-moving party must produce, at the summary judgment stage, "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. While the Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought," Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975) (citations omitted), the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted).

Ultimately, "in considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); see also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, ___ U.S. ___, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).

DISCUSSION

Plaintiffs have asserted four causes of action: (1) breach of warranty; (2) common law fraud; (3) professional negligence; and (4) negligent misrepresentation. Spanierman contends these claims are barred by the applicable statute of limitations and, moreover, that they fail to state claims upon which relief can be granted. Each of plaintiffs' claims will be addressed in turn.

1. Express Warranty Claim

In the invoice dated December 20, 1968, Spanierman guaranteed that the Painting was an authentic John Singer Sargent. The parties do not dispute that this is an express warranty. Rather, defendant contends that as this warranty was given over twenty years ago plaintiffs' cause of action is time barred.

The New York statute of limitation for breach of a sales contract is set out in N.Y.U.C.C. ("UCC") § 2-725.³ That section provides:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued....

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

There is no question that plaintiffs' action was untimely under this statute if it accrued at the time they purchased the Painting and received the warranty because those events occurred over twenty years before the suit was filed. Plaintiffs therefore contend...