Vom Lehn v. Astor Art Galleries, Ltd.

• Decision Date: 23 January 1976
• Citation: 380 N.Y.S.2d 532,86 Misc.2d 1
• Parties: , 18 UCC Rep.Serv. 861 Harvey D. VOM LEHN and Loretta Vom Lehn, Plaintiffs, v. ASTOR ART GALLERIES, LTD., et al., Defendants.
• Court: New York Supreme Court

Page 532

380 N.Y.S.2d 532

86 Misc.2d 1, 18 UCC Rep.Serv. 861

Harvey D. VOM LEHN and Loretta Vom Lehn, Plaintiffs,

v. ASTOR ART GALLERIES, LTD., et al., Defendants.

Supreme Court, Trial Term, Suffolk County, Part VI.

Jan. 23, 1976.

Jack B. Solerwitz, Mineola, for plaintiffs.

Robert J. Connolly, Garden City, for defendants.

MEMORANDUM

GORDON M. LIPETZ, Justice.

This action arises out of the sale of 20 objects of art (Oriental jade carvings) by the defendant Hartley Gift Shops, Inc. to the plaintiffs for $67,000.

The complaint sets forth five causes of action, as follows: the first is based upon an alleged conspiracy by the defendants to fraudulently induce plaintiffs to purchase the carvings by misrepresenting their true value; the second is based upon alleged fraudulent misrepresentation of the carvings as being Ming Dynasty jade; the third is for rescission of the purchase agreement as being an oral agreement for the purchase of goods exceeding $500 in value with no memorandum signed by the plaintiffs (statute of frauds); the fourth is for $300,000 damages because the price was 'unconscionable'; and the fifth is for damages in said sum by reason of the seller's refusal to accept the return of the goods.

Defendant Hartley Gift Shops, Inc. counderclaims for $18,000, the unpaid balance of the purchase price represented by two post-dated checks in the respective amounts of $10,000 and $8,000.

Plaintiffs' actions against the defendants Astor Art Galleries, Ltd. and Albert Troy were settled and discontinued prior to trial. The only defendants remaining in the litigation are Hartley Gift Shops, Inc. (hereinafter, Hartley), Raymond Levy, Joseph Levy, Stanley Jemal and Pat Jemal. The action was tried before the court, non-jury.

From the testimony adduced, the plaintiffs' version of the transaction and the events leading up to it is as follows: On August 15, 1973 the plaintiffs, husband and wife, visited the Astor Art Galleries, Ltd. (hereinafter, Astor) in New York City, where they purchased a few Hummel figurines and Wedgewood plates through a salesman, the defendant Stanley Jemal. Payment was made partly by check and partly by credit card. Two days later they returned to take delivery of their purchases. While in the store they purchased through another salesman, Albert Troy, a number of jade carvings for $20,000, paying $2000 by check with the balance payable on Monday, August 20th.

In the early morning of August 20th, Mr. Jemal telephoned the plaintiff Harvey Vom Lehn at his home in Huntington. Suffolk County, and made an appointment to meet him in Brooklyn. He and his wife Pat Jemal met with Mr. Vom Lehn as planned, and they went to a restaurant together. Mr. Jemal told Mr. Vom Lehn that he had lost his job because of the sale he made to them, that Astor had defrauded them and that he would like to take him to the Hartley Gift Shop, where finer merchandise was sold, to prove that their carvings were inferior. After luncheon the three drove in Mr. Jemal's car to the Hartley Gift Shop, a large store on the gound floor of the Hotel Taft. It was a well established business, having been at that location for 12 years.

Mr. Jemal there introduced Mr. Vom Lehn to his cousin Raymond Levy, one of the owners of Hartley, at about 1:30 P.M. and described to him the articles purchased at Astor, which were then at the Vom Lehn home in Huntington. Mr. Levy told Mr. Vom Lehn he might have been 'taken', but wanted to see the carvings. He also told Mr. Vom Lehn that he had Mind Dynasty jade for sale, and showed him various carvings for the next three hours. Mr. Vom Lehn said he would like to have his wife see them.

After obtaining Mrs. Vom Lehn's approval by telephone, Mr. Vom Lehn, Mr. Levy, Mr. and Mrs. Jemal and a helper drove to the Vom Lehn residence in Huntington, arriving there at about 7:00 P.M. Mr. Levy examined the items purchased at Astor and said they were not quality merchandise. When he learned that the Vom Lehns still owed $18,000 on them, he offered to return, the items to Astor. His offer was accepted, and Mr. Levy then placed 11 carvings on the dining room table.

Mrs. Vom Lehn testified that Mr. Levy said they were beautiful Ming Dynasty jade and offered to sell the 11 items for.$19,000. She and her husband then went upstairs to confer with Mr. and Mrs. Jemal. Mr. Jemal told them he was not an expert on jade but his cousin Mr. Levy was honest and a 'wonderful person'. He and his wife cried, told them he had lost his job at Astor, that they had no money, that their children were hungry, and asked them to buy Mr. Levy's carvings. Upon returning downstairs Mr. Levy said the carvings were priceless Ming Dynasty jade worth 2 or 3 times what he was asking and discussed the individual pieces with them for about a half hour. Plaintiffs then brought the 11 items and Mrs. Vom Lehn gave Mr. Levy her check for.$19,000 (Pltfs' Ex. 1). After having a drink, they all went out to dinner.

Returning to the home about 10:30 or 11:00 P.M., they each had another drink and Mr. Levy told plaintiffs that the objects they had purchased were very good but he wanted to show them something 'extra beautiful'. Nine additional carvings were brought in from the car and displayed on the coffee table. Mr. Levy offered to sell the entire group, including the items purchased earlier in the evening, for a total of $67,000. Plaintiffs again went upstairs to confer with Mr. and Mrs. Jemal, and there was a repetition of their first conference. After they returned to the living room Mr. Levy gave them two books on jade entitled 'Chinese Jade of Five Centuries' and 'jade: Stone of Heaven' (Pltfs' Exs. 2, 3), compared the items on the coffee table with those shown in the books, and praised them highly. He told them the carvings were worth far more than he was asking, but if they purchased them it would save him a trip to Europe.

When the plaintiffs said they did not have sufficient cash on hand Mr. Levy offered to accept a series of post-eated checks for the balance. Plaintiffs then bought the entire lot for $67,000 and Mrs. Vom Lehn drew and gave him 4 checks as follows: $20,000 dated August 29, 1973, $10,000 dated September 15, 1973, $10,000 dated October 1, 1973 and $8,000 dated November 1, 1973 (Pltfs' Exs. 4, 5). Plaintiffs requested a bill of sale. Mr. Levy said he had not brought a sales book but would have Mr. Jemal bring them a bill of sale and a display cabinet the next day. He then departed with the Jemals and the helper, leaving the carvings with the plaintiffs. Plaintiffs concede that no duress or coercion of any kind was employed by Mr. Levy or the Jemals.

Mr. Levy's version of the transaction was quite different. He testified that when he displayed the first group of 11 carvings he told plaintiffs they were hand carved Serpentine, a semi-precious stone, but made no mention of any age or period. When they returned to plaintiffs' home after dinner, he said, plaintiffs asked him if he had anything in jade, and only then did he bring in and display the 9 jade carvings. In reply to their questions he described the items as 'hand carved Chinese jade of fine quality' and discussed the individual pieces with them for about an hour. He told them such carvings appreciate in value and were a very good investment, but made no mention of their age or say they were of the Ming Dynasty period or any other period. He knew, however, that all the carvings were contemporary, made in the Twentieth Century.

The following day, august 21st, Mr. Levy returned the Astor items, as promised, and deposited the.$19,000 check, which cleared. On the same day Mr. Jemal delivered to Mrs. Vom Lehn a display cabinet and a bill of sale from Hartley (Pltfs' Ex. 5) listing the 20 separate items as 'vase', 'goddess', 'oxen', 'ginger jar', etc., without further description, and the amounts and dates of the checks given in payment. Mrs. Vom Lehn accepted same without protest or comment. A week later Mr. Jemal went to work for Hartley as a salesman.

On August 23rd plaintiffs drove to the Hartley Gift Shop, where they were introduced to Mr. Levy's brother Joseph and picked up shelves for the cabinet. However, they placed the carvings in a vault. On August 28th Mrs. Vom Lehn 'got a feeling something was wrong'. She became suspicious and visited a jeweler in Huntington, who referred her to Mr. Jacobsen, an art dealer in Cold Spring Harbor. Nevertheless, she telephoned Mr. Levy that day and told him to deposit the $20,000 check dated August 29, 1973. He did so, and the check cleared. She did likewise with respect to the $10,000 check dated September 15, 1973 shortly before it became payable, and that check also cleared. At that point a total of $49,000 had been actually paid to Hartley.

Mrs. Vom Lehn was unable to reach Mr. Jacobsen until September 19, 1973. He referred her to Nathan Doctor, an expert on jade, whom she consulted for an appraisal the next day. After inspecting the items Mr. Doctor referred her to the Gemological Institute, the recognized arbiter of gems and precious stone, and to the District Attorney.

On September 21st plaintiffs took all the items to the Gemological Institute in New York City, where only three of them were tested. Reports were made that one was 'jadeite', a true jade, and the other two were 'serpentine' (Pltfs' Ex. 6). Plaintiffs then went to the Hartley Gift Shop and requested an appraisal, stating that they wanted it for insurance purposes but actually intending to take it to the District Attorney. Raymond Levy dictated the appraisal to Joseph Levy, who wrote it in longhand on Hartley's stationery, listing only 11 of the 20 items and setting forth the appraised value of each, totaling $70,300 (Dfts' Ex. A). Nine items were described therein as 'hand carved nephrite jade', one as 'hand carved mutton fat jade' and one merely as a 'hand carved translucent income burner'.

Raymond Levy testified that they requested an appraisal...