The Pace Gallery LLC v. Seurat
| Decision Date | 11 April 2023 |
| Docket Number | Index No. 652208/2022,Motion Seq. Nos. 001,002,003 |
| Parties | THE PACE GALLERY LLC, Plaintiff, v. JEAN-PIERRE SEURAT, CONSTANCE H. SCHWARTZ, FABIAN DOURNAUX, MARK B. GOLDSTEIN, MARK B. GOLDSTEIN, P.A., and JOHN DOES 1-10, Defendants. |
| Court | New York Supreme Court |
MOTION DATE 09/01/2022, 06/22/2022, 08/29/2022
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 47, 48 49, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 117, 119, 122, 127, 130, 131, 133, 134, 135, and 141 were read on this motion to DISMISS -- INCONVENIENT FORUM
The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 36, 37, 38, 39, 40, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 118, 120, 123, 125, and 129 were read on this motion to DISMISS
The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 52, 53, 54, 55, 56, 124, 126, 128, 132, 136, 137, 138, 139, and 140 were read on this motion to DISMISS LOUIS L. NOCK, J.
Plaintiff The Pace Gallery LLC ("Pace") brings this action alleging breach of contract, fraud, and various commercial torts regarding the sale of a drawing allegedly made by Georges Seurat, which Pace asserts was not actually drawn by Seurat. Defendants Jean-Pierre Seurat ("Seurat") (Mot. Seq. No. 001), Fabian Dournaux ("Dournaux") (Mot. Seq. No. 002), and Mark B. Goldstein and Mark B. Goldstein, P.A. (collectively, "Goldstein") (Mot. Seq. No. 003), all move to dismiss the complaint alleged against them; in Seurat and Dournaux's case, for lack of personal jurisdiction pursuant to CPLR 3211(a)(8) and forum non conveniens pursuant to CPLR 327, and in Goldstein's case, based on documentary evidence and failure to state a cause of action. Motion sequence numbers 001 through 003 are consolidated for disposition in accordance with the following memorandum decision.
The following facts are, unless otherwise stated, taken from the complaint, and assumed to be true for purposes of this decision. On August 4, 2021, nonmoving defendant Constance H. Schwartz ("Schwartz") contacted Pace's Vice President, Joseph Baptista ("Baptista"), and informed him that she was in contact with a potential seller of "secondary market works of art" living in France, including a drawing by Georges Seurat (the "drawing"), who wished to remain anonymous (complaint, NYSCEF Doc. No. 54, ¶¶ 10-11). Schwartz provided Pace with certain documents and PDF files purporting to establish the provenance of the drawing (id., ¶¶ 13-15, 18). She also intimated that one of her clients might be interested in purchasing a work from Pace (id., ¶ 17). On August 18, 2021, Pace informed Schwartz that it was interested in purchasing the drawing, subject to a viewing in New York to generate a condition report and Art Loss Register ("ALR") report regarding the drawing (id., ¶ 19). Shortly thereafter, Pace, in discussion with Goldstein, entered into a Letter of Intent with Goldstein that identified Goldstein as the seller and indicated that, subject to the condition and ALR reports, Pace would purchase the painting for $2,000,000 (letter of intent, NYSCEF Doc. No. 74). Goldstein represented that, to the best of his knowledge, the drawing was authentic work by Georges Seurat (id., ¶ 6).
Subsequent to entering into the letter of intent identifying him as the seller, Goldstein then somewhat confusingly asserted to Pace that the seller was "an elderly man and extremely difficult," who required that the painting be viewed in Switzerland rather than New York, and who would be procuring the condition and ALR reports (complaint, NYSCEF Doc. No. 54, ¶¶ 22-24). Pace asserts that the reports provided authenticated the provenance of the drawing such that Pace reasonably relied on them to its detriment (id.; Condition Report, NYSCEF Doc. No. 5 at 4-5). On November 5, 2021, Pace's agent viewed the drawing in Switzerland, after which Goldstein sent Pace an invoice for the drawing that incorporated the condition and ALR reports by reference (id., ¶¶ 26-27). The invoice provided that the drawing would be conveyed "in its 'AS IS, WHERE IS, HOW IS CONDITION' with all faults and defects except for a warranty of good and marketable title and freedom from liens, encumbrances and rights of third parties with a disclaimer of any and all express or implied warranties of merchantability or fitness for a particular purpose" (Pace invoice, NYSCEF Doc. No. 7). The invoice also indicated that Goldstein "shall act as agent to convey title to the Buyer following Seller's receipt of the Purchase Price" (id.). Baptista signed the invoice on behalf of Pace as Buyer (id.). Goldstein also prepared a similar invoice, with identical terms, for Seurat as Seller, making Goldstein the agent to transfer title, which bears Seurat's signature (Seurat invoice, NYSCEF Doc. No. 29). Seurat argues that he had no idea that the drawing would be sold to Pace, and instead offers a contract of sale on Goldstein's letterhead indicating that Goldstein would purchase the drawing from Seurat for himself, with no mention of Pace or any other potential future buyer (Seurat-Goldstein contract, NYSCEF Doc. No. 20).
Following the sale, the drawing was delivered to Pace on December 3, 2021 (complaint, NYSCEF Doc. No. 54, ¶ 29). Thereafter, Pace attempted to conduct further due diligence as to the provenance of the drawing, but its inquiries met with no response from Goldstein, Schwartz, or Dournaux (id., ¶ 30). The court notes that this is the first instance of Dournaux's name appearing in the complaint other than as a copied recipient of certain email communications between Pace and Schwartz. On March 24, 2022, Pace asserts, without detail, that it "was informed that the alleged Seurat work of art purchased from Defendants is fake" (id., ¶ 31).
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]). "[The court] accept[s] the facts as alleged in the complaint as true accord[ing] plaintiffs the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory" (Id. at 87-88). Ambiguous allegations must be resolved in plaintiff's favor (JF Capital Advisors, LLC v Lightstone Group, LLC, 25 N.Y.3d 759, 764 [2015]). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 152 [2002] [internal citations omitted]). "[W]here ... the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration" (Ullmann v Norma Kamali, Inc., 207 A.D.2d 691, 692 [1st Dept 1994]).
On a motion to dismiss for lack of personal jurisdiction pursuant to CPLR 3211(a)(8), the plaintiff bears the burden of showing jurisdiction (Wang v LSUC, 137 A.D.3d 520, 521 [1st Dept 2016]). The court may assert personal jurisdiction over a non-domiciliary where the action is permissible under the long-arm statute (CPLR 302), and the exercise of jurisdiction comports with due process (Williams v Beemiller, Inc., 33 N.Y.3d 523, 528 [2019]). Due process requires that a nondomiciliary have "certain minimum contacts" with the forum state and "that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" (id., quoting International Shoe Co. v Washington, 326 U.S. 310, 316 [1945]). To defeat a motion to dismiss on this ground, a plaintiff need only "make a prima facie showing that the defendant is subject to the jurisdiction of the court" (Bloomgarden v Lanza, 143 A.D.3d 850, 851 [2d Dept 2016]). "The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff" (Nick v Schneider, 150 A.D.3d 1250, 1251 [2d Dept 2017]).
"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just" (CPLR 327[a]). Courts consider:
the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit.... The court may also consider that both parties to the action are nonresidents ... and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction.... No one factor is controlling.
(Shin-Etsu Chem. Co., Ltd. v 3033 ICICI Bank Ltd., 9 A.D.3d 171, 176 [1st Dept 2004], quoting Islamic Republic of Iran v Pahlavi, 62 N.Y.2d 474, 479 [1984].)
"In general, a decision to grant or deny a motion to dismiss on forum non conveniens grounds is addressed to a court's discretion" (Al Rushaid v Pictet &Cie, 28 N.Y.3d 316, 332 [2016]). Defendant's burden to demonstrate that New York is an inconvenient forum is a heavy one (Creditanstalt Inv. Bank AG v Chadbourne &Parke LLP, 14 A.D.3d 414, 415 [1st Dept 2005]).
Seurat's Motion pursuant to CPLR 3211(a)(1), (a)(8) and 327 (Mot. Seq. No. 001)
Seurat argues...
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