Opinion
9588 Index 650298/13
06-11-2019
Margit FRENK, Plaintiff–Appellant, v. Yris Rabenou SOLOMON, etc., et al., Defendants–Respondents.
Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for appellant. Pryor Cashman LLP, New York (William L. Charron of counsel), for respondents.
Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for appellant.
Pryor Cashman LLP, New York (William L. Charron of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Gesmer, Kern, Singh, JJ.
Order, Supreme Court, New York County (Andrea Masley, J.), entered September 10, 2018, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The motion court correctly found that this action to recover certain stolen art is barred by the general release and stipulation of discontinuance in the 1973 action brought by plaintiff's mother, Mariana Frenk–Westheim, widow of Paul Westheim, a German art collector, critic, and publisher (see Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 [2011] ; Matter of Hofmann, 287 A.D.2d 119, 123, 733 N.Y.S.2d 168 [1st Dept. 2001] ). Plaintiff failed to present evidence that her mother intended to release claims with regard to one single painting only; on its face, the release encompasses all claims of any kind whatsoever, and the 1973 lawsuit sought the return of any and all works of art alleged to have been formerly owned by Westheim.
Plaintiff failed to present evidence in support of her contention that defendants are barred from relying on the release and stipulation by fraudulent inducement and the doctrine of equitable estoppel. The claim of fraudulent inducement is supported by the allegations that Charlotte Weidler, Westheim's former colleague, friend, and lover, had converted art entrusted to her by Westheim and lied about its whereabouts in the years after the Second World War. These allegations do not establish a fraud separate from the subject of the release but are the same facts as those alleged in the 1973 complaint (see Centro Empresarial, 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ; Pappas v. Tzolis, 20 N.Y.3d 228, 233–234, 958 N.Y.S.2d 656, 982 N.E.2d 576 [2012] ). Moreover, plaintiff cannot establish reasonable reliance upon any statements allegedly given by Weidler to Frenk–Westheim that Weidler had no other knowledge of the Westheim art collection, in view of the fact that Weidler had advised Frenk–Westheim's counsel that she had additional works, but they were all either gifts from Westheim or purchased from him ( Centro Empresarial, 20 N.Y.3d at 276, 958 N.Y.S.2d 680, 982 N.E.2d 600 ).
Plaintiff failed to present evidence of affirmative conduct or a failure to act that unmistakably manifests Weidler's waiver or abandonment of her rights under the release (see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 104, 817 N.Y.S.2d 606, 850 N.E.2d 653 [2006] ; EchoStar Satellite L.L.C. v. ESPN, Inc., 79 A.D.3d 614, 617–618, 914 N.Y.S.2d 35 [1st Dept. 2010] ). Weidler's alleged agreement to split the proceeds of sale of another work with Frenk–Westheim, assuming there was such an agreement, is too doubtful or equivocal an act from which to infer an intention to waive those rights.