Rothko's Estate, In re
| Decision Date | 22 October 1974 |
| Citation | 80 Misc.2d 140,362 N.Y.S.2d 673 |
| Parties | In re ESTATE of Mark ROTHKO. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Choate, Regan, Davis & Hollister, New York City (William C. Woodson, New York City, of counsel), for Lawrence A. Fleischman.
Richenthal, Abrams & Moss, New York City, for executors Reiss and Stamos.
MILLARD L. MIDONICK, Surrogate.
A motion is made to quash a subpoena issued by the attorneys for two of the executors of this estate.
The pending proceeding was instituted to revoke letters testamentary and for other relief. The fundamental issues are alleged wrongdoing of the three executors of this estate and the respondent art dealers in entering into two contracts for the sale and consignment for sale of paintings executed by the testator. A more detailed outline of the triable issues may be found in prior decisions in this proceeding (Matter of Rothko, 69 Misc.2d 752, 330 N.Y.S.2d 915; 71 Misc.2d 320, 336 N.Y.S.2d 130; affd. 40 A.D.2d 965, 338 N.Y.S.2d 854).
The trial of the issues has been conducted for many weeks and still has not been concluded. Early in the proceeding the parties seeking the removal of the executors made application for a preliminary injunction to restrain the sale or disposition of the paintings pending the conclusion of the proceeding (Matter of Rothko, 71 Misc.2d 320, 336 N.Y.S.2d 130; affd. 40 A.D.2d 965, 338 N.Y.S.2d 854). In opposition to the application for an injunction the respondent art dealers filed an affidavit of Lawrence A. Fleischman. Mr. Fleischman is Vice President, Director and owner of one-half of the capital stock of Kennedy Galleries, Inc. The affidavit of Mr. Fleischman stated, in considerable detail, his expertise in the art field. His affidavit expressed purportedly an expert opinion as to the prevailing price practices in the sale of paintings to a dealer, whether in small numbers or in bulk, and as to factors affecting the valuation of paintings in an artist's lifetime and after his death. This expert had not seen the Rothko paintings covered by the disputed contracts nor had he attempted to make an appraisal of the testator's works. It would appear that the affidavit was submitted to convince the court that the discounts and commissions obtainable by the respondent art dealers in their contracts with the executors were in conformity with recognized practices in the art business.
Although the opinion of this art expert was not initially solicited by the executors, two of the executors now state that, having been unsuccessful in procuring the attendance of experts at the trial as voluntary witnesses, these executors are privileged to compel the testimony of an expert by subpoena. The affidavit in opposition to the motion to quash the subpoena issued to Mr. Fleischman states that the testimony of this expert on direct examination will be limited to certain aspects of the affidavit. If this were to eventuate and only a limited direct examination were to be conducted, it is obvious that the witness would be subject to a long and grueling cross-examination not relative to any paintings ever owned by this estate since his affidavit asserts that he had seen none, but upon his generalized opinions as to art dealers' prices, discounts and retail markups. At this point in the trial weeks have been consumed in the examinations of other experts and there is no basis for belief that precedent would be abandoned with respect to the subpoenaed expert.
It is most significant that the affidavit of the subpoenaed expert was filed upon a motion preliminary to the trial. The affidavit has not, and could not, be made part of the trial record without stipulation, nor has it been offered in evidence.
People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 72 N.E.2d 165, is decisive of the issue on these motions. In that tax certiorari proceeding the relator had subpoenaed an involuntary expert witness who previously had prepared an appraisal of the property in a suit for a prior owner. The witness refused to accept a fee and declined to testify as to the value of the premises. At the trial the witness was required to testify with regard to what he had seen on the...
To continue reading
Request your trial
-
Reis v. Comm'r of Internal Revenue (In re Estate of Reis)
...and affd. 56 A.D.2d 499, 392 N.Y.S.2d 870 (1977), affd. 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977). Estate of Rothko, 80 Misc. 2d 140, 43 N.Y.2d 305, 362 N.Y.S.2d 673 (Surr. Ct., N.Y. County 1974). Estate of Rothko, 77 Misc. 2d 168, 352 N.Y.S.2d 574 (Surr. Ct., N.Y. County 1974), affd. 47 A.D.2......
-
Estate of Rothko
...N.Y.S.2d 574, affd. 47 A.D.2d 623, 366 N.Y.S.2d 610, mot. for lv. to app. den. 36 N.Y.2d 647, 372 N.Y.S.2d 1026, 334 N.E.2d 603; 80 Misc.2d 140, 362 N.Y.S.2d 673; 84 Misc.2d 830, 379 N.Y.S.2d 923; affd. 56 A.D.2d 499, 392 N.Y.S.2d 870, affd. 43 N.Y.2d 305, 401 N.Y.S.2d 449, 372 N.E.2d 291; ......
-
Krumme v. West Point-Pepperell, Inc., 89 Civ. 2016 (KC).
...165 (1947). Accord Heffernan v. Norstar Bank of Upstate New York, 125 A.D.2d 887, 889, 510 N.Y.S.2d 248 (3d Dep't 1986); In re Estate of Rothko, 80 Misc.2d 140, 142, 362 N.Y. S.2d 673 (Surr.Ct.1974).4 These cases, however, are distinguishable factually from the instant In People ex rel Krau......
-
Kridos v. Vinskus
...(expert may be compelled to testify as facts within his knowledge but not as to his expert opinion); In re Estate of Rothko, 80 Misc.2d 140, 362 N.Y.S.2d 673 (N.Y.Sup.Ct.1974), (art expert would not be compelled to testify on his expert opinions as to various art pricing practices); and Com......