Opinion
SC 2259/07.
Decided February 19, 2008.
Gregory Kitchen, New York, NY, for claimant pro se.
John R. Cahill, Esq., Lynn Cahill LLP, New York, NY, for defendant.
On June 20, 2007, claimant commenced the instant small claims action against defendant, the well-known fine art auctioneer, for falsely stating to him and others that a picture he owns is a print, and not, as he alleges, a pastel by Pierre-Auguste Renoir. In a brief decision and order dated November 7, 2007, I dismissed the claim after a trial conducted before me on November 5, 2007, finding as follows, in pertinent part:
Claimant's notice of claim incorrectly reflects an additional allegation that defendant authenticated and sold the pastel.
While claimant is frustrated by defendant's refusal to provide him with an opinion consistent with those purportedly held by experts in the pertinent field concerning the nature of a work of art he had purchased from a third party for $150, there is no legal basis for holding defendant liable for any alleged failure in that regard, especially since claimant never relied to his detriment on the opinion articulated by defendant in 1993 or thereafter. Rather, claimant sought other opinions.
To the extent that claimant maintains that defendant destroyed any possibility he has of selling the work, he offered insufficient non-hearsay evidence in support, and in any event has admittedly sought opinions from only a handful of other experts and galleries, relying instead on his unsupported claim that defendant controls the art market.
By letter dated November 26, 2007, claimant contends that the case was wrongly decided and the trial unfairly conducted. I exercised my discretion and deemed it a motion pursuant to Civil Practice Law and Rules (CPLR) 4404(a) to set aside the verdict.
In response, defendant maintains that claimant's letter ought not be considered and otherwise denies that the trial was unfairly conducted or wrongly decided, except to the extent that it argues that the claim should have been dismissed for the additional reason that it is time-barred. It also renews its request for relief pursuant to New York City Civil Court Act [NYCCCA] § 1810. (Letter of John R. Cahill, Esq., dated Dec. 17, 2007 [Cahill letter]).
In reply, claimant submits a three-ringed binder containing an unsigned introduction, several exhibits, and an index to the exhibits. In opposing defendant's argument that his claim is time-barred, claimant asserts that defendant has repeated its denigrating comments concerning the picture many times over the years.
Before addressing the merits, I observe that while a litigant is free to seek vindication in the small claims part for a claim netting a judgment far below its actual value, the purpose of the part is "to facilitate the handling of minor claims and grievances without resort to the use of counsel . . ." ( Roundtree v Singh, 143 AD2d 995, 996 [2nd Dept 1988]). As claimant seeks the adjudication of the authenticity of a potentially important and valuable work of art, his claim is not minor and ought not depend on evidence of a quality sufficient to prove a claim within the court's monetary jurisdiction. (I.B.2.). Nonetheless, given the time and energy claimant has devoted to this case and his insistence on a reconsideration of his evidence beyond that reflected in my November 7 decision, I address all of the evidence presented, including the exhibits claimant submitted in reply to defendant's December 17 letter, much of which were not offered in evidence at trial. As the evidence is insufficient to warrant holding defendant liable here, I need not offer defendant an opportunity to address claimant's reply submissions.
For the following reasons, the parties' respective motions are denied.
I. SUFFICIENCY OF THE EVIDENCE A. Trial testimony
Claimant, a photographer and art collector, testified as follows: In 1993, he purchased the pastel for $150 from an unidentified dealer who he alleges acquired it as a print from an unidentified estate. Immediately thereafter, claimant brought the picture to defendant, the preeminent authority on 19th century French Impressionist art, whose representative told him, without any explanation, that the picture was a print. Claimant had occasionally provided defendant with photography services and, according to him, had sold artwork through it and had other pieces authenticated by it on prior occasions.
Later in 1993, after a Renoir expert expressed interest in seeing the picture, claimant decided that it was a genuine watercolor pastel by the French Impressionist master, Pierre-Auguste Renoir, which he created as a study for his famous oil painting, "The Bathers."
Some time in 1994 or 1995, claimant showed the picture to the eponymous Owen Gallery in Manhattan. Claimant testified that Owen "said Renoir pastel," and asked claimant to call him the following day to discuss it further. The next day, Owen told claimant that he had called defendant, that "they called it a print," and that he could do nothing about it. Claimant immediately called defendant, and upon asking one Mr. Ruprecht why defendant was calling it a print, Ruprecht replied, "We can call it whatever we want."
Elsewhere in the record, Ruprecht is identified as defendant's Chief Executive Officer.
Claimant also brought the picture to the Wildenstein Gallery ("Wildenstein") which, according to claimant, ranks with defendant in terms of power and authority in the field of French Impressionism. On the recommendation of one of Wildenstein's representatives that he have the picture scientifically tested, claimant sought the services of the McCrone Institute which had been responsible for discrediting the widely known theory that the "Shroud of Turin" was Jesus's actual shroud. According to claimant, in February 2000, Dr. McCrone found that the picture tested positive as a pastel. Despite this finding, one of defendant's experts, Blake Koh, said that the picture was a print and in 2003, recommended that claimant consult with the Renoir authority at Wildenstein.
In 2002, claimant sought and obtained from Adriaan Kardinaal of the Royal Library of the Netherlands' Institute of Culture and Heritage, a chemical analysis of the picture. Kardinaal's report, for which claimant testified he paid $8,000, reflects a finding that the picture is a pastel. Claimant had the report presented to defendant but received no response, which claimant explained as the product of the ignorance of defendant's experts concerning Renoir's use of technical art paper. The report presented at trial was neither signed nor authenticated, and contains no information concerning Kardinaal's qualifications as an expert in the field of the chemical analysis of pastel on paper.
Claimant was no more successful at Christie's, one of defendant's rivals in the auction business ( see Greenwood v Christie, Manson Woods Intern., Inc., 1993 WL 541181 [SD NY] [referring to defendant as a rival auction house of Christie's]), which would not accept the picture without Wildenstein's seal of approval. Finally, in 2006, Ruprecht again told claimant that the picture is a print.
At the close of claimant's testimony, I reserved decision on defendant's motion for a trial order of dismissal on the grounds that claimant had failed to set forth a legal basis for finding it liable and that the claim is time-barred.
Claimant called as an expert witness, Arnold B. Wagner, an art restorer specializing in oil painting. I deemed him an expert in pastels. Wagner testified that after examining the picture in 1993 and seeing indicia of pastel on it, he told claimant that "there was more here than meets the eye," and recommended that he seek the services of the McCrone Institute which, according to his understanding, never reported a finding that the picture was by Renoir. Although Wagner acknowledged that a report, dated 1993 and bearing his signature, reflects a finding that the picture is a pastel, he had little recollection of it and was unable to affirmatively state that he had authored it.
The record reflects that claimant agreed that as the testimony of his two other witnesses, Charles Wrablica and claimant's wife Merrilee Cohen, would duplicate his testimony, it was unnecessary to call them to the stand. Claimant did not produce the picture for my examination.
Defendant called no witnesses. I reserved decision on defendant's renewed motion to dismiss and on defendant's motion pursuant to NYCCCA § 1810 for an order compelling claimant to seek leave to prosecute future claims against it in the small claims part. In my November 7 decision, I granted only defendant's motion to dismiss the claim.
B. Analysis 1. Timeliness of the claim
Claimant's evidence established that as of 1993, he possessed what he deemed authority establishing the falsity of defendant's opinion that the picture is a print. Consequently, having failed to bring suit until 2007, he is time-barred from doing so now, whether based on the six-year statute of limitations for an action based on fraud (CPLR 213) or the three-year statute of limitations for actions grounded on negligence and appraiser malpractice (CPLR 214, [6]). As claimant's evidence affords no reason to believe that his claim sounding in product disparagement accrued within the year before he filed the instant claim, it too is untimely. (CPLR 215). Even if the parties had entered into a contract, the claim would still be barred by the six-year statute of limitations for an action based on breach of contract. (CPLR 213).
Claimant's repeated attempts to obtain a different opinion from defendant on succeeding occasions do not revive his claims for fraud, negligence, or professional misconduct as these causes of action accrue upon the commission of the acts underlying them or, at latest, the discovery of the facts underlying them. Likewise, defendant's repetition of its opinion to others over the years does not resuscitate his claim for product disparagement. ( See David J. Gold, P.C. v Berkin, 2001 WL 121940 [SD NY] [continued dissemination of allegedly defamatory statements is not re-publication giving rise to new cause of action, in particular where, as here, the subsequent reports were qualitatively identical and published by original tortfeasor]).
In view of the foregoing, the claim against defendant is barred regardless of the probative value of the evidence presented.
2. Quality of the evidence
Much of claimant's testimony was presented in the form of hearsay. Hearsay is a statement made outside of the courtroom which is offered in evidence for the truth of the matter asserted therein. ( People v Buie, 86 NY2d 501, 505; Prince, Richardson on Evidence § 8-101, at 497 [Farrell 11th ed]). That a statement is sworn and written does not alter its nature as hearsay. ( Arnold Herstand Co., Inc. v Gallery: Gertrude Stein, Inc., 211 AD2d 77, 79 [1st Dept 1995]).
While hearsay is admissible in the small claims part, a small claims judgment may not rest entirely on it. ( Zelnik v Bidermann Indus. USA, Inc., 242 AD2d 227, 228 [1st Dept 1997]; Arnold Herstand, 211 AD2d 77, 83; Levins v Bucholtz, 2 AD2d 351, 351-52 [1st Dept 1956]; Prince, Richardson on Evidence § 8-109[c], at 507). Moreover, notwithstanding its admissibility and the relaxed procedures litigants enjoy in the small claims part (NYCCCA § 1804; Buonomo v Stalker, 40 AD2d 733 [3rd Dept 1972]), as with any other evidence, hearsay need not be given any probative value. ( Gangi v Fradus, 227 NY 452, 456-457; see Miller v Sanchez , 6 Misc 3d 479, 482 [Civ Ct, Kings County 2004] [even if admissible, fact-finder must assess admission's probative weight and value]).
It also bears noting that although small claims litigants are usually not represented by attorneys, they are, nonetheless, obliged to present their claims in a cognizable and coherent manner with reliable and probative evidence that warrants confidence in the resulting decisions. And, to the extent that small claims litigants believe that their claims are self-evident, or are supported by reference to authorities outside the record, judges may not fill in evidentiary gaps by unwarranted speculation or conduct independent research into the facts of a case ( Orlich v Helm Bros., Inc., 160 AD2d 135, 141 [1st Dept 1990] [court does not have authority to go outside record to fashion theories of liability or justify its own notions of culpability]). Reliance on speculation and the performance of outside research into the facts, as opposed to the applicable law, violate the parties' due process rights to confront the evidence presented. (George D. Marlow, From Black Robes to White Lab Coats: The Ethical Implications of a Judge's Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence During the Decision-making Process, 72 St John's L Rev 291 [1998]).
With these principles in mind, I consider the various causes of action which arise from the evidence presented by claimant.
3. Fraud, negligence, negligent misrepresentation, and professional malpractice
Before liability for negligence, negligent misrepresentation, fraud, or professional malpractice may be imposed, there must be a relationship between the parties which gives rise to a duty owed. ( Rodriguez v Budget Rent-A-Car Systems, Inc. 44 AD3d 216, 221 [1st Dept 2007] [existence of a duty is essential element of negligence]; Mandarin Trading Ltd. v Wildenstein, 17 Misc 3d 1118 [A], 2007 NY Slip Op 52059[U], *4 [Sup Ct, New York County 2007] [existence of a duty is essential element of fraud]). A duty may arise from a contract specifically employing a defendant for the purpose of rendering an appraisal to the plaintiff and where the defendant knows that the plaintiff intends to rely on it ( Struna v Wolf, 126 Misc 2d 1031, 1036-1037 [Sup Ct, New York County 1985]), or from a fiduciary relationship. ( Davis v CCF Cap. Corp., 277 AD2d 342 [2nd Dept 2000]). However, "[a]llegations of superior knowledge or expertise in the art field are per se insufficient to establish the existence of a fiduciary duty." ( Granat v Center Art Galleries-Hawaii, Inc., 1993 WL 403977, at *6 [SD NY]; Mechigian v Art Capital Corp., 612 F Supp 1421, 1431 [SD NY 1985]; Mandarin Trading, 17 Misc 3d 1118 [A], 2007 NY Slip Op 52059[U], *4, 5).
Although claimant may indeed "deserve a decent opinion" from defendant, absent evidence that he hired or paid defendant for an appraisal, defendant may not be held liable for negligence. Standards of professional conduct and ethics adopted by various associations of art appraisers do not, in themselves, create such a duty, and auctioneers are not members of the class of "[p]rofessionals, such as lawyers and engineers, [who] by virtue of their training and expertise, may have special relationships of confidence and trust with their clients," and upon whom liability may be imposed for failing to speak with due care ( Kimmel v Shaeffer, 89 NY2d 257, 263-264).
Thus, in Ravenna v Christie's Inc., 289 AD2d 15 (1st Dept 2001), the defendant, a specialist in Old Master Paintings employed by the defendant Christie's, gave the plaintiff erroneous information regarding the origin of a work of art and caused him substantial financial damage. As the plaintiff failed to set forth any allegations in his complaint that even suggested the existence of a special relationship between him and the defendant, the pre-trial dismissal of the cause of action for negligent misrepresentation was upheld. On appeal, the court observed as follows:
All that can be gleaned from the complaint is that Christie's gave plaintiff's wife gratuitous advice based on a walk-in inquiry. This one-time meeting, which did not even create a business relationship, cannot be said to have created a relationship of trust and confidence. Although it is undisputed that [defendant's expert] was aware that plaintiff would rely on his advice, that fact alone is insufficient to state a claim. Reliance and the existence of a special relationship between the parties are two distinct elements of a negligent misrepresentation claim.
( 289 AD2d 15, 16).
Here, claimant's relationship with defendant as a provider of photography services on an unspecified number of occasions does not permit an inference that there was a special relationship between them which would subject defendant to liability for negligence or negligent misrepresentation in expressing its opinion of the picture to claimant. Nor do claimant's allegations that he had sold defendant other art work, as such contact does not "suggest a closer degree of trust and reliance than that of the ordinary buyer and seller." ( Coolite Corp. v Am. Cyanamid Co., 52 AD2d 486, 489 [1st Dept 1976]; see Struna, 126 Misc 2d 1031, 1036-1037 [arm's length transaction is "very antithesis" of special relationship ordinarily required to support holding defendant to higher duty of care than otherwise required]). That defendant authenticated other art work for claimant, an allegation that was not sufficiently proved at trial, also does not establish a fiduciary relationship. Consequently, the facts set forth here are not significantly distinguishable from those presented in Ravenna.
And, as noted in the November 7 decision, as claimant made it clear that he rejected defendant's opinion early on, there was no evidence that he relied on defendant's opinion, another essential element. ( See Struna, 126 Misc 2d 1031, 1036-1037).
4. Product disparagement
Claimant's evidence also raises an issue of whether defendant committed the tort of product disparagement. Product disparagement is a tort sounding in injurious falsehood. (4B NY Prac, Com Litig in NY State Courts § 84:24 [2d ed]). It gained prominence as a cause of action in the 1920s, when Joseph Duveen, the prominent art dealer, was sued for "slander of title" by the owner of a picture Duveen had publicly disparaged as a copy of an original oil painting by Leonardo da Vinci. ( Hahn v Duveen, 133 Misc 871). In its seminal decision, the trial court characterized the parties' respective positions as follows:
Plaintiff said these statements by a man of defendant's position in the world of art . . . had caused her special damage by causing the Kansas City Art Museum to call off negotiations then in progress regarding the purchase of the Hahn picture. Defendant, on the other hand, contended that the sacred right of free speech would be destroyed if such statements of opinion as he gave to the New York World could not be made in good faith regarding a picture that was before the public for sale and which had been the subject of newspaper articles in America and France.
( 133 Misc at 873). The jury was unable to reach a verdict, and one month before the retrial, Duveen reportedly settled the $500,00 claim by paying the plaintiff $60,000 and court costs. In 1993, Duveen's opinion was confirmed by a British expert. (Ralph E. Lerner and Judith Bressler, Art Law: The Guide for Collectors, Investors, Dealers, and Artists, Ch 7, at 574-575 [Practicing Law Institute, 3d ed]).
"The elements of a product disparagement claim are an intentional communication to a third person of a false statement of fact denigrating the quality of goods or services, without privilege, resulting in direct financial loss to the party whose interest is disparaged [and t]he key to a claim for product disparagement is proving malice and special damages." (4B NY Prac, Com Litig in NY State Courts § 84:24). In order to establish a defendant's liability for product disparagement, the plaintiff must prove each and every one of the following elements: 1) the falsity of the statement; 2) the publication of the statement; 3) malice; and 4) special damages. (44 NY Jur 2d § 273; Kirby v Wildenstein, 784 F Supp 1112, 1115 [SD NY 1982]). The burden on the plaintiff is "onerous." (Jauregui, Rembrandt Portraits: Economic Negligence in Art Attribution, 44 UCLA L Rev 1947, 1993 [1997]).
a. The statement's falsity
In order to prove that defendant's stated opinion is false, there must be proof that claimant's picture is an original pastel and not a print. The plaintiff's burden in proving the falsity of a statement concerning a work of art was described by the trial court in Hahn as "very heavy," a description that remains valid today. (Orenstein, Show Me the Monet, 13 Geo Mason L Rev, 905, 908-909[recognizing that authenticity is seldom provable and that a plaintiff's case depends on expert evidence]; Butt, Authenticity Disputes in the Art World: Why Courts Should Plead Incompetence, 28 Colum JL Arts 71, 72, 74-75 [2004] [" Authenticity Disputes"] [characterizing the burden as "nearly impossible," and urging that courts decline to rule on such matters]).
In support of his assertion that defendant falsely characterized the picture as a print, claimant now offers a signed version of the Kardinaal report. (Cl. Exh. H). Even if Kardinaal's expertise in the pertinent field is presumed, claimant did not offer the picture in evidence and thus, I was unable to assess it with reference to the picture; the photograph of the picture was inadequate to that purpose. Moreover, notwithstanding Kardinaal's signature, the document is hearsay and does not reflect sufficient indicia of reliability (I.B.2.), and claimant does not explain his failure to present the signed version at trial and ability to produce it now.
The exhibits referenced are those submitted in connection with the instant motion only.
That the report is referenced in other correspondence does not enhance its reliability or establish Kardinaal's expertise, especially since it apparently failed to persuade Pascal Perrin of the Wildenstein Institute Publications' Catalogue Pierre-Auguste Renoir to include the picture in Daulte's critical catalog of Renoir's work. (Cl. Exh. K). In any event, although Kardinaal concludes that the picture is a pastel, he does not opine on its authorship beyond noting its resemblance to a Renoir drawing in the Musee d'Orsay.
I address this letter again, at I.B.4.b.
Claimant also relies on Wagner's trial testimony and his unnotarized statement dated October 1, 2007. (Cl. Exh. G). As noted above, Wagner did not stand by the 1993 report which was admitted in evidence at trial, and assuming that his post-trial October 2007 statement refers to claimant's picture, he identifies it as a pastel with a degree of circumlocution that neither inspires confidence nor enhances his tentative trial testimony. I thus find that the evidence offered through Wagner is insufficiently reliable to establish, prima facie, that the picture is a pastel and not a print.
A letter in French dated September 12, 1996 from one Francois Daulte which, according to claimant, states that "the Renoir is pastel" (Cl. Exh. Q), is inadmissible absent an official and complete translation. Although Perrin's reference to Daulte as the author of a critical catalog of Renoir's art (Cl. Exh. K) renders it likely that Daulte possesses the expertise required to authenticate the picture, the letter is also, and nonetheless, hearsay.
Charles Wrablica's prospective testimony that the picture is a pastel by Renoir has no probative value absent a sufficient basis upon which to find that he is an expert in any pertinent field. The qualifications he mentions in his unsworn statement are: winning awards for "art ability" when he was a child, attending the High School of Music and Art and Pratt Institute (from which he "graduated as an industrial designer"), taking an introductory art history course in college, and learning some interesting anecdotes about Renoir. (Cl. Exh. G). He also alleges that through further unspecified study, he learned from an unidentified source about the special textured paper that was "given to Renoir for [his] Bathers studies." ( Id.). This background does not demonstrate that Wrablica possesses the "requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted [by him] or the opinion rendered [by him] is reliable." ( Mattot v Ward, 48 NY2d 455, 459; Prince, Richardson on Evidence § 7-304, at 463). And, as claimant failed to alert me at trial that he intended to call Wrablica as an expert witness, I was precluded from examining his credentials at that time.
Cohen's prospective testimony, as set forth in her signed email (Cl. Exh. O), is rife with hearsay and irrelevancies and is thus not probative. (I.B.2.).
I also observe that claimant offers no evidence concerning the picture's provenance beyond his testimony at trial that the unnamed dealer from whom he purchased it told him that he purchased it at "an estate sale." Provenance is "a weighty consideration in the process of authentication." ( Arnold Herstand, 211 AD2d 77, 80, and authorities cited therein]; see Boul v Hutton, 138 F Supp 2d 491, 504 [SD NY 2001], affd in part 328 F 3d 84 [2d Cir 2003] [absence of provenance does not support authenticity]; Butt, Authenticity Disputes, 28 Colum J L Arts at 73-74 [recognizing importance of proof of provenance]).
For all of these reasons, claimant failed to demonstrate, prima facie, that defendant's stated opinion is false.
b. The publication of the statement
Publication means communication, written or oral, to a third person. Much of claimant's evidence as to this element is hearsay. (I.B.2.).
Apart from Owen's statement ("Renoir pastel") being hearsay, absent any further details, such as his expertise and the extent of his examination of the picture, it does not reliably prove that the picture is a Renoir pastel. Owen's other statements to claimant permit the reasonable inference that he was disinclined to consider the picture any further without consulting with defendant, who apparently expressed its opinion to Owen only at his request. As such, defendant's statement to Owen was privileged, absent evidence that it was made for any purpose other than to protect his interests as a potential purchaser of the picture. (14 NY Prac, New York Law of Torts § 1:51 [2007] [qualified privilege attaches to communication made by person with legitimate interest in making or duty to make communication, and communication sent to person with corresponding interest or duty, even though without privilege the communication would be defamatory]). Alternatively, it is reasonably inferred from claimant's testimony that Owen consulted defendant as claimant's agent. If so, Owen is not a third party.
At trial, defendant stipulated that Wrablica, if called to testify, would state that in 2003, he went to defendant's offices with a photograph of claimant's picture, and that a secretary took it from him, disappeared into the office, and returned with it saying that it was a copy. Apart from being duplicative of claimant's testimony, Wrablica's testimony proves only that defendant's opinion of the picture was conveyed, again upon request, to someone who, under the circumstances, was claimant's agent and not a third party. That Wrablica went "on his own volition" does not transform him into a third party under the law, and it is, nonetheless, reasonably inferred that claimant consented to the scheme. ( See Ralph E. Lerner and Judith Bressler, Art Law: The Guide for Collectors, Investors, Dealers, and Artists, Ch 7, at 576-577 [dealer who lets painting out on approval assumes risk of negative opinion]). It also may be reasonably inferred from Wrablica's testimony that defendant's representative may have thought that Wrablica had purchased the picture and sought to consign it. If so, defendant legitimately provided him with its opinion.
In further support of his allegation that defendant communicated its opinion to a third party, claimant now reports in his introduction to his exhibits that Wrablica told him that after a "big museum" had spoken to defendant, its representatives laughed when he raised the issue of claimant's picture and called the picture "Laurel and Hardy" in an email. Assuming that Wrablica's hearsay statement to claimant constitutes competent evidence that claimant's picture was held up to public ridicule, it is not only based on multiple out-of-court statements (a statement made by one of defendant's representatives, which was made to someone at the museum, and then made to Wrablica), but given the unknown identity of the museum, it is unverifiable. For all of these reasons and absent any evidence concerning the circumstances under which defendant made the statement to the museum, Wrablica's proposed testimony is insufficient to prove, prima facie, that defendant denigrated the picture to a third party. In addition, at trial claimant never advised that he sought to call Wrablica to testify about this incident and there is no reason warranting the consideration of this testimony at this juncture.
To the extent that claimant offers the Perrin letter (Cl. Exh. K) as circumstantial evidence of defendant's publication of its disparaging opinion of the picture to him through Wildenstein, it would require an inordinate amount of speculation to so infer.
c. Malice
Malice is more than injurious intent. Rather, to prove malice, the plaintiff must establish that in communicating the denigrating statement to a third person, the defendant had knowledge of the alleged falsity of the opinion, or communicated the opinion with reckless disregard for its falsity. (4B NY Prac, Com Litig in NY State Courts § 84:25).
Claimant's suggestion that defendant's refusal to consider the Kardinaal, Wagner, and McCrone reports and/or provide him with a written opinion reflect maliciousness fails, absent proof that defendant had a duty, contractual or otherwise, to do so. (I.B.3.). Moreover, it is as likely that defendant acted based on its perceived economic interests, as it is that it acted maliciously. ( Cf Boul, 138 F Supp 2d 491 [no claim for prima facie tort based on the defendants' statements questioning authenticity of artwork absent evidence that statements motivated solely by "disinterested malevolence" as distinguished from economic self-interest]). Thus, defendant's conduct in this regard does not constitute sufficient evidence of malice.
Claimant's attribution of a conspiratorial motive to defendant, Wildenstein, and Christie's, to the extent such a motive may evidence malice, is not supported by sufficiently probative facts. To infer such a motive from claimant's email correspondence with defendant's representative Holly Forrester and expert Blake Koh in, respectively, June 2001 and February 2003, and Perrin's February 2003 letter (Cl. Exhs. L, K), would also require an inordinate amount of speculation. ( Cf Kramer v Pollock-Krasner Foundation, 890 F Supp 250, 255-256 [SD NY 1995] [in order to prove conspiracy under federal antitrust law from inferences drawn from market facts, market facts must tend to show that allegedly conspiratorial actions resulted from an agreement, and not merely from independent, parallel conduct by firms acting in their own self-interests]; Vitale v Marlborough Gallery, et al., 1994 WL 654494 [SD NY] [observing that continuing refusal of several galleries and a foundation to recognize and sell plaintiff's painting as an authentic Jackson Pollack "amounts to no more than a refusal to deal with the plaintiff"]).
The letter to claimant dated April 10, 2003 from David Georgiades, defendant's Vice President of Impressionist and Modern Art, with which he returns a slide of the picture and expresses his regret that defendant can be of no further assistance, does not prove that Georgiades had either asked for the slide or "pretend[ed] to want to sell" the picture, notwithstanding claimant's assertions in the index to his exhibits. (Cl. Exh. L). Claimant's notes of a conversation he allegedly had on June 15, 2006 with Michael Dupin, another of defendant's representatives (Cl. Exh. P) proves nothing, and as claimant testified at trial about their conversation, there is no need to consider this exhibit.
To the extent that claimant alleges that defendant's harassment of him proves its malice, claimant's belief on that score is entirely subjective, stemming as it does from his perception that defendant breached a duty to explain its opinion to him, retract it, or alter it, which duty did not exist. (I.B.3.). That defendant filed a criminal complaint against claimant for harassment, even if it did so after claimant told it he was going to sue, does not constitute proof of malice. And claimant's denial of having harassed defendant is insufficient to prove that defendant is attempting to prosecute him maliciously for harassment. (Penal Law § 240.26). That claimant may have had a legitimate purpose in continually contacting defendant after being told not to, liability for malicious prosecution may not be imposed for the mere the filing of a baseless criminal complaint absent additional proof of maliciousness (PJI 3.50), which was not shown here.
d. Special damages
"Special damages are limited to losses having pecuniary or economic value, and must be fully and accurately stated with sufficient particularity to identify actual losses" ( Kirby, 784 F Supp 1112, 1116; Drug Res. Corp. v Curtis Publ. Co., 7 NY2d 435, 440). The damages must also be the "natural and immediate consequence of the disparaging statements." ( Kirby, 784 F Supp 1116). Proof of such damages is essential to the cause of action; nominal damages are not available. ( Id.).
Even if the picture is a genuine Renoir pastel, claimant offered only conclusory assertions that he lost $5,000 in time spent attempting to enlighten defendant about the picture's authenticity and/or Renoir's use of technical paper. That he incurred unspecified damages as a result of defendant's harassment of him is also insufficient.
For all of these reasons, and notwithstanding the passion with which claimant advances his claim, he has set forth an insufficient factual or legal basis upon which to find, prima facie, that defendant committed the tort of product disparagement.
II. Fairness of the Trial A. Witness issues
At the commencement of the trial, claimant stated that he had four witnesses. Consonant with regular trial practice, the witnesses were not permitted to observe the trial. This ensures that each witnesses' testimony will not be influenced by the testimony of the other witnesses. Additionally, as noted above, having agreed that the testimony of Wrablica and Cohen would unnecessarily duplicate his testimony, claimant waived his right to call them as witnesses. The exhibits presented on the instant motion provide no reason for hearing them now. To the extent that claimant now asserts that they have testimony to offer concerning other matters, I address those matters above. (I.B.4.a., b.).
Although Wagner, an apparently elderly and infirm individual, was not called to the stand until late in the evening, as the record reflects that he was preceded by claimant who took approximately 45 minutes to testify, this circumstance does not provide a basis for a new trial.
Claimant now submits the notarized written statement of his sister-in-law Rachel Cohen-Lunning, dated October 3, 2007. (Exh. J). To the extent that he claims that I deprived him of a chance to call her to testify at trial, the record reflects that he did not then name her as a witness. In any event, had she been called to testify to the matters set forth in her statement, namely, claimant's reputation for integrity, such evidence is irrelevant as claimant's reputation in the community for integrity was not challenged at trial. ( See eg Kravitz v Long Island Jewish-Hillside Med. Ctr., 113 AD2d 577 [2nd Dept 1985] [in civil cases, evidence of good character may be admitted only after person's good character has been directly called into question]). Moreover, in reaching my decision, I focused solely on the merits of the claim, as I do now.
Additionally, Lunning-Cohen, a jewelry designer and artist raised by art dealers, is not thereby competent to qualify claimant as an expert. Consequently, absent any issue as to claimant's integrity or a sufficient basis upon which to find that Lunning-Cohen is competent to qualify claimant as an expert, there is no need to hear her testimony.
An unsigned email, purportedly authored by one Jill Neimark, dated October 3, 2007, and professing to claimant's "broad aesthetic ability," proves nothing relevant to the issues before me. (Cl. Exh. J). To the extent that the email constitutes an offer of proof as to what testimony Neimark, a science writer and author, would have given if called, the record reflects that claimant did not seek to call her as a witness at trial and if he had, I would have found her testimony inadmissible absent any basis for finding her competent to establish claimant's art expertise. Her assertion as to claimant's aesthetic ability, moreover, does not establish his expertise in any pertinent field sufficiently to constitute a reliable ground for crediting his opinion that the picture is a genuine Renoir pastel. In any event, as claimant never testified at trial that his opinion concerning the picture was based on his own expertise, as opposed to that of Kardinaal, McCrone, or Wagner, I did not consider, nor does the record reflect that he asked that I consider, his testimony as expert evidence until now. In any event, his assertion that he spent the past 14 years studying the picture, absent details concerning his study, is insufficient to demonstrate his expertise in a pertinent field.
B. Allegations concerning defendant's conduct
Claimant alleges that I ignored his evidence of a broad range of defendant's alleged misconduct. None of these allegations pertain to the legal merit of his claim as defendant's conduct, except to the extent it is alleged to have acted maliciously (I.B.4.c.), is not in issue even if the claim was not time-barred in the first instance. (I.B.1.). A defendant's misconduct is not placed in issue before the claimant establishes its prima facie case. Nonetheless, I address some of claimant's allegations.
Claimant references certain pre-trial matters without explaining their relevance to the legal merits of his claim. In any event, they may be more appropriately considered on appeal. Additionally, Cohen's statement concerning a conversation she had with a J. Lubatkin, elsewhere identified in the record as a lawyer appearing for defendant on an earlier court date, relating to defendant's alleged failure to provide the written report of a conservator whom defendant allegedly relied on for its opinion as to the picture's authenticity (Cl. Exh. F), proves nothing absent any basis for finding that defendant had a duty to provide claimant with support, documentary or otherwise, for its opinion. (I.B.3.). Moreover, Cohen's statement depends for its probative value on a fact not proven at trial, namely, that defendant's opinion was based on the opinion of an unnamed conservator.
Likewise, Cohen's August 24, 2007 email to defendant's attorney stating that, "[a]gain nowhere in the McCrone Associates certified report is the word fake stated or written anywhere, nor could they say the pastel is a fake in any official report" (Cl. Exh. I), depends for its probative value, if any, on a document that was not introduced in evidence, namely, a certified copy of the McCrone report. The balance of Cohen's email constitutes unreliable and self-serving hearsay.
Claimant attributes considerable significance, both at trial and on the instant motion, to his contention that defendant committed fraud in connection with a letter dated June 16, 2006. He strenuously denies having received the letter, maintains that it was never mailed in the first place, and accuses defendant of having fraudulently manipulated the United States Postal Service (USPS) by obtaining from it proof of a mailing never made. In my November 7 decision, I found, in pertinent part, as follows:
Defendant's letter dated June 16, 2006 in which a senior claims administrator for defendant confirmed that he had "instructed all members of [defendant's] Impressionist Modern Art Department not to comment on the Property in any matter. . . . [and that defendant's] staff members will not confirm or contest the Property's authenticity, nor will they discuss any attributes of the Property, including its medium or artistic quality, with him or anyone else" . . . does not constitute an admission of any kind. This finding in no way depends on claimant's receipt of the letter.
I now find, based on the evidence adduced at trial and on the instant motion, that advice conveyed by email to claimant by the USPS that it has documented claimant's "concern" in its database (Cl. Exh. D) does not constitute proof of fraud, nor does claimant's own self-serving correspondence to United States Senator Charles Schumer complaining about defendant's conduct in this regard. ( Id.). More importantly, even if defendant had fraudulently obtained the proof of mailing, such conduct neither enhances claimant's case nor denigrates defendant's argument that claimant failed to establish a legal claim against it. Again, defendant's conduct is not in issue as the claim is time-barred (I.B.1.) and is supported by legally insufficient evidence (I.B.2., 3., 4.). In any event, the small claims part is not the appropriate forum for the adjudication of claimant's allegation.
C. Allegations concerning misconduct of defendant's attorneys
Claimant levels a variety of accusations against defendant's attorneys. I address only the least frivolous.
A lawyer's out of court statement to an opposing party, made in the discharge of her duties to her client and in a reasonable manner and for a proper purpose is protected by a qualified privilege. ( Blackman v Stagno , 35 AD3d 776 , 778 [2nd Dept 2006]). Statements expressed by an attorney in the course of a judicial proceeding are also protected. ( Martirano v Frost, 25 NY2d 505). Consequently, the various statements attributed by claimant and Cohen to defendant's lawyers both in and out of court are not competent evidence of the claim. Additionally, as defendant's lawyers were not witnesses at trial, their credibility is not in issue notwithstanding claimant's repeated attempts to make it one. In any event, none of defense counsel's statements was considered by me in rendering my decision.
I also observe that a lawyer's attempt to settle a matter with a pro se litigant is not per se impermissible. Claimant's email correspondence with defendant's trial lawyer dated July 19 and 20, 2007 reflects no impropriety and claimant does not explain how he was prejudiced by the attempt to settle the case. Claimant's complaints regarding the lawyer's conduct in making recommendations to him concerning an issue claimant had with a conservator, in using and/or claiming to own one of claimant's unpublished photographs without having paid claimant for its use, or in infringing claimant's copyright are irrelevant as, again, the lawyer is neither a party nor was he a witness at trial, and the small claims part is not the appropriate forum for the adjudication of these complaints.
Claimant also maintains that defendant's attorneys withheld from him certain correspondence between defendant and Wildenstein. Absent any contention that he moved for an order granting him leave to conduct discovery (NYCCCA § 1804), or if he had, that he moved for an order compelling the production of such correspondence, he has waived his right thereto. Moreover, he does not identify what was withheld or how it would have aided him at trial. His allegations in this regard appear to be speculative.
Claimant's allegation that defendant's lawyer omitted from his submissions emails he sent to claimant and his responses to claimant's emails is meaningless absent any effort to connect the omissions to a relevant trial issue, and his suggestion that defendant's attorney sought non-existent correspondence from him is too vague and convoluted to merit analysis.
D. Claimant's other requests
Claimant asks for a judicial declaration of the picture's authenticity, an order enjoining defendant from expressing an particular opinion, an order directing defendant to explain or retract its opinion, and/or an order directing defendant to apologize to him for failing to consider the picture and claimant's documentation adequately. Given this venue, a court with subject jurisdiction over "causes of action for money only" not exceeding $5,000 (NYCCCA § 1801; Scott v Dale Carpet Cleaning, Inc., 120 Misc 2d 118, 119 [Civ Ct, NY County 1983]; Carren v Westchester County Community Coll., 176 Misc 2d 490 [Mount Vernon City Ct 1998]), I am not authorized to grant any of this relief.
To the extent that claimant attempts to do indirectly what he may not do directly ( see Mallardi v Dist. Council 37 Health Sec. Plan Trust, 128 Misc 2d 696, 698 [Civ Ct, Kings County 1985] [monetary claim against labor union trust fund was equitable in nature because issue was whether the claimant was a beneficiary]), the lack of any precedential value inhering in my findings (NYCCCA § 1808 ["a judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court . . ."]) precludes him from relying on it in the course of any future litigation between the parties. Consequently, even if I were to find that claimant had succeeded in proving that his picture is a genuine pastel created by Renoir, such a finding would constitute only a Pyrrhic victory for him.
Finally, and while not necessary to this decision, I note that claimant is not without other resources. In particular, some of the authorities cited above reference the International Foundation for Art Research (IFAR), an independent non-profit organization which, if it still exists, provides research assistance where the authenticity of a work of art is in dispute in exchange for a "modest fee." (Ralph E. Lerner and Judith Bressler, Art Law: The Guide for Collectors, Investors, Dealers, and Artists, Ch 7, at 555; Butt, Authenticity Disputes, 28 Colum JL Arts 71, 84).
III. DEFENDANT'S MOTION PURSUANT TO NYCCCA § 1810
At the close of the trial, I denied defendant's motion pursuant to NYCCCA § 1810 for an order prohibiting claimant from filing any more claims against it without obtaining in advance a court order. Defendant renews that motion with evidence that, after trial, claimant sent it a facsimile transmission threatening to sue it and counsel for defamation. (Cahill letter).
Pursuant to NYCCCA § 1810, upon a finding by the clerk of the court:
that the procedures of the small claims part are sought to be utilized by a claimant for purposes of oppression or harassment, as where a claimant has previously resorted to such procedures on the same claim and has been unsuccessful on the hearing thereon, the clerk may in his discretion compel the claimant to make application to the court for leave to prosecute the claim in the small claims part.
As the statute makes clear, the issuance of such an order requires a finding that a claimant previously used the procedures of the part to oppress or harass a party on the same claim. Absent any indication that claimant has filed with the court any claim against defendant other than the instant claim, defendant is not entitled to the requested relief.
IV. CONCLUSION
I thus conclude that, based on the evidence before me at trial and the submissions presented on this motion, and for all of the reasons set forth above, claimant's motion for an order setting aside the verdict is denied, and defendant's motion for an order precluding claimant from filing any more claims against it without court approval is denied. The case before me is now concluded.
This constitutes the decision and order of the court.