Courthouse News Service

Transcription

1 SCANNED ON ? # SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RICHARD GREEN, Index No. - against - Plaintiff, GIUSEPPE CONCEPCION, PROARATE.COM, INC., AND EROS C., INC. Defendants. Date Purchased SUMMONS Plaintiff designates New York County as the place of trial. The basis of venue is Plaintiffs residence: 14 East 75th Street New York, New York YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs attorneys within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York -. PATTERSON BELKNA~ WEBB & Courthouse News Service A vhe of the Americas New vork, New York (212) Attorneys for Plaintiff v.2

2 Y,* = - TO: Giuseppe Concepcion 300 East 62nd Street, Apt New York, New York Proarte.com, Inc. c/o Giuseppe Concepcion 300 East 62nd Street, Apt New York, New York Eros C., Inc. c/o Giuseppe Concepcion 300 East 62nd Street, Apt New York, New York v.2

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK I RICHARD GREEN, Plaintiff, Index No. - against - VERIFIED COMPLAINT GIUSEPPE CONCEPCION, PROARTE.COM, INC., AND EROS C., INC., Defendants. Plaintiff Dr. Richard Green, by his attorneys, Patterson Behap Webb & Tyler LLP, alleges as and for his verified complaint against Defendants Giuseppe Concepcion ("Concepcion"), Proarte.com, Inc. ("Proarte") and Eros C., Inc. ("Eras") as follows: 1. Plaintiff is, and at all times mentioned herein was, an adult individual residing at 14 East 75th Street, New York, New York, in New York County. 2. Upon information and belief, Defendant Concepcion is a natural person domiciled in Florida with a residence located at 300 East 62nd Street, Apartment 2302, New York, New York and is the controlling shareholder of Defendants Proarte and Eros. 3. Upon information and belief, Defendant Proarte is a corporation duiy organized under the laws of the State of Florida with a place of business located at SW 6th Street, Miami, Florida *- * 4. Upon information and belief, Defendant Eros i organized under the laws of the State of New York with its principal East 62nd Street, Apartment 2302, New York, New York. i

4 5. Between February 2006 and November 2006, Defendants Concepcion and Proarte sold two works of art to Plaintif< namely (i) a watercolor represented to be the work of artist Marc Chagall, titled "Flews Rouges et Bleues", (the "Purported Chagall Work"); and (ii) a charcoal and oil drawing represented to be the work of artist Willem de Kooning, titled "Woman" (the "Purported de Kooning Work") (collectively, the "Fraudulent Artworks"). Representations of the Fraudulent Artworks are attached as Exhibit A. 6. Defendants Concepcion and Proarte represented and warranted to Plaintiff that the Fraudulent Artworks were original, genuine, and authentic works by the respective artists. 7. With respect to the Purported Chagall Work, Defendants Concepcion and Proarte provided Plaintiff with documentation purportedly setting forth provenance and establishing authenticity - including a certificate purportedly signed by a representative of the Comite Chagall, which is authorized by French law to authenticate artworks by Marc Chagallwhich Plaintiff later learned was fraudulent (the "Fraudulent Chagall Documentation"). A copy of the Fraudulent Chagall Documentation is attached as Exhibit B. 8. Defendants Concepcion and Proarte provided Plaintiff with documentation purportedly showing recent auction results ("Purported Auction Results") for "Woman1' and comparable works by de Kooning which indicated that "Woman1' had sold for $207,500 in May 2002, representing that the Purported de Kooning Work had the same or similar value. A copy of the Purported Auction Results is attached as Exhibit C. 9. With respect to the Purported de Kooning Work, the Defendants Concepcion and Proarte provided Plaintiff with documentation purportedly establishing provenance of the Purported de Kooning Work, including a document purporting to show that 2

5 the painting had at one point been owned by the gallery F.B. Horowitz Fine Art Ltd. in Minnesota (the "Fraudulent de Kooning Documentation"). A copy of the Fraudulent de Kooning Documentation is attached as Exhibit D. 10. Plaintiff is a private art collector with an ardent appreciation of works by great artists; however, Plaintiff neither has, nor has represented himself to have, any formal training or professional experience in the purchase or sale of artworks or other aspects of the business of dealing in artworks. 11. In reliance upon Defendants Concepcion and Proarte's representations and warranties as to the originality, genuineness, and authenticity of the Purported Chagall Work, Plaintiff issued a $35,000 check payable to Defendant Proarte, which represented a $20,000 deposit on the Purported Chagall Work and the balance owed by Plaintiff to Concepcion for a previous purchase. Plaintiff also authorized Proarte to charge his American Express credit card for the balance of the purchase price of the Purported Chagall Work. A copy of the invoice for the Purported Chagall Work, showing the $105,000 cash'due, is attached as Exhibit E. 12. Thereafter, from on or about January 20,2007, through on or about February 4,2008, Proarte charged Plaintiffs American Express credit card for twelve payments of $7,500 each and one payment of $15,000, for a total of $105, In reliance upon Defendants Concepcion and Proarte's representations and warranties as to the originality, genuineness, and authenticity of the Purported de Kooning work, Plaintiff paid the Defendants $40,000 in cash, and gave the Defendants two artworks valued together for the purposes of the transaction at $40,000, for the Purported de Kooning Work, for a total purchase price of $80,000. The two artworks given by Plaintiff to Defendants were a piece by Helen Frankenthaler, titled "Yellow Jacket & Tahiti," and a piece by Sam Francis, titled 3

6 ' )' r C I "Monotype." A copy of the invoice for the Purported de Kooning Work, showing the $40,000 credit for the Frankenthaler and Francis pieces and $40,000 cash due, is attached as Exhibit F. 14. The invoice for the Purported de Kooning Work included a written statement, "Money back guarantee on authenticity of artwork." (See Exhbit F). 15. Upon information and belief, on or about July 23,2008, a New Yorkbased representative of the Comite Chagall (the Tomite Representative") was given a description of the Fraudulent Chagall Documentation that Defendants had provided to Plaintiff. The Comite Representative indicated that there was no record of the documentation in the records of the Comite Chagall and consequently she believed that the documentation was not authentic. 16. Upon information and belief, on or about August 6,2008, the Comite Representative inspected the Purported Chagall Work and the Fraudulent Chagall Documentation in person and concluded that they were fake. 17. Upon information and belief, a copy of the Fraudulent de Kooning Documentation was shown to a representative of the F.B. Horowitz Fine Art Ltd. in Minnesota (the "F.B. Horowitz Representative"). The F.B. Horowitz Representative indicated her gallery had never owned or sold the Purported de Kooning Work and that consequently she believed that the documentation was not authentic. 18. Upon information and belief, on or about March 3,2009, the Purported de Kooning Work was shown to a representative of the Willem de Kooning Foundation, who confirmed that the Purported De Kooning Work is not an authentic work by the artist Willem de Kooning. 4

7 19. On or about August 22,2007, a complaint was brought in the Supreme Court, State of New York by Howard Russeck against Defendants Concepcion and Proarte based upon their sale to him of artwork represented as genuine and authentic that he alleged turned out to be counterfeit (the "Russeck Complaint"). A copy of the Russeck Complaint is attached as Exhibit G. 20. The Russeck Complaint further alleged that the artwork purchased by Russeck from Defendants Concepcion and Proarte was seized by the United States Federal Bureau of Investigation ("FBI"). 21. Upon information and belief, on or about September 6,2007, shortly after the filing of the Russeck Complaint, Defendant Concepcion formed Defendant Eros C, Inc. 22. Upon information and belief, Defendant Concepcion up until September 11,2007, was the record owner of a condominium apartment located at 300 East 62nd Street, New York, New York (the "Apartment"). 23. Upon information and belief, on or about September 11,2007, Defendant Concepcion transferred title to the Apartment from himself individually to Defendant Eros, and such transfer was made without any consideration Upon information and belief, Eros has since sold the Apartment. On or about November 14,2008, a complaint was brought in the Supreme Court, State of New York by Puccio Gallery, Inc. ('lpuccioll) against Defendants Concepcion, Proarte, and Eros, based upon the sale to Puccio of artwork represented as genuine and authentic that Puccio alleged turned out to be counterfeit (the "Puccio Complaint"). A copy of the Puccio Complaint is attached as Exhibit H. 5

8 26. On November 21,2008, the US. Attorney for the Southern District of New York announced the indictment of Defendant Concepcion on charges of transportation of stolen property and wire fi-aud as part of a scheme to defraud in the sale of fake paintings that he misrepresented to be authentic works of famous artists such as Marc Chagall and others. The press release stated: One way CONCEPCION [defrauded customers] was by acquiring authentic works... and then acquiring or commissioning forgeries that he then sold to his victims. To induce customers to purchase the forgenes, CONCEPCION created false provenances (ownership history), forged certificates of authenticity, forged gallery and auction labels, and altered banking and third party documents. CONCEPCION also represented to victims that the forged versions were genuine, or deliberately failed to disclose that they were forgeries. A copy of the press release is attached as Exhbit I. On information and belief, Defendant Concepcion was arrested that day and is currently fi-ee on bail. 27. Upon information and belief, Defendant Concepcion has been and is currently being investigated further by the FBI for the sale of fraudulent artwork to other persons and entities. 28. On or about July 28,2008, a representative of Plaintiff contacted Defendant Concepcion and demanded full restitution to the Plaintiff of payments made for the Fraudulent Artworks. Defendant Concepcion never replied. FIRST CAUSE OF ACTION (Breach of Contract for Purported Chagall Work) 29. Plaintiff repeats and realleges paragraphs 1 through 28 of this verified complaint as if fully set forth herein. 30. Defendants Concepcion and Proarte sold Plaintiff the Purported Chagall Work pursuant to a contract in which Defendants Concepcion and Proarte represented and 6

9 warranted that the Purported Chagall Work was an original, genuine, and authentic work by artist Marc Chagall and presented to Plaintiff the Fraudulent Chagall Documentation. Plaintiff performed his obligations under the contract by paying Defendants Concepcion and Proarte $125,000 for the Purported Chagall Work. 31. The Purported Chagall Work is not an original, genuine, or authentic work by the artist Chagall Defendants Concepcion and Proarte breached their contract with Plaintiff. By reason of the foregoing, Plaintiff is entitled to damages in the sum of $125,000. SECOND CAUSE OF ACTION (Breach of Warranty for Purported Chagall Work) 34. Plaintiff repeats and realleges paragraphs 1 through 33 of this verified complaint as if hlly set forth herein. 35. At the time Plaintiff purchased the Purported Chagall Work, Defendants Concepcion and Proarte warranted to Plaintiff that it was an original, genuine, and authentic work by the artist Marc Chagall. 36. The Purported Chagall Work was not as warranted but was a counterfeit, forgery, or copy of the original piece and, as such, has little or no value. 37. At the time of the purchase, Plaintiff was unaware that the Purported Chagall Work was not original, genuine, and authentic. Plaintiff. 38. The Defendants Concepcion and Proarte breached their warranty to 39. Defendants Concepcion and Proarte's delivery of the Purported Chagall Work also constituted a breach of their (a) warranty of title under UCC and (b) their 7

10 express warranty under UCC that the Purported Chagall Work would conform to Defendants' description of it as an original, genuine, and authentic work of art. $125, By reason of the foregoing, Plaintiff is entitled to damages in the sum of THIRD CAUSE OF ACTION (Unjust Enrichment for Purported Chagall Work) 4 1. Plaintiff repeats and realleges paragraphs 1 through 40 of this verified complaint as if fully set forth herein. 42. Defendants Concepcion and Proarte have been enriched by the receipt of funds fiom Plaintiff for the Purported Chagall Work. 43. Plaintiff demanded Defendants Concepcion and Proarte repay him for his purchase of the Purported Chagall Work. 44. Defendants Concepcion and Proarte have failed to repay Plaintiff the sum of $125,000 to compensate him for his purchase of the Purported Chagall Work. 45. Defendants Concepcion and Proarte have been unjustly enriched by their receipt of funds fiom Plaintiff for the Purported Chagall Work. 46. Equity and good conscience demand that Defendants Concepcion and Proarte compensate Plaintiff $125,000 for his purchase of the Purported Chagall Work. $125, By reason of the foregoing, Plaintiff is entitled to damages in the sum of FOURTH CAUSE OF ACTION (Conversion for Purported Chagall Work) 48. Plaintiff repeats and realleges paragraphs 1 through 47 of this verified complaint as if fully set forth herein. 8

11 49. Defendants Concepcion and Proarte's sale of the Purported Chagall Work to Plaintiff in exchange for hnds in the sum of $125,000 and failure to return the funds constitutes an exercise of rights to the funds contrary to the superior rights of the funds' owner. 50. Defendants Concepcion and Proarte's acts constitute a conversion of Plaintiffs property. 51. By reason of the foregoing, Plaintiff is entitled to damages in the sum of $125,000. FIFTH CAUSE OF ACTION (Fraud for Purported Chagall Work) 52. Plaintiff repeats and realleges paragraphs 1 through 51 of this verified complaint as it filly set forth herein. 53. Defendants Concepcion and Proarte falsely represented the Purported Chagall Work to be an original, genuine, and authentic piece by the artist Marc Chagall. 54. Defendants Concepcion and Proarte made the misrepresentation willfully and with the intent to deceive Plaintiff. 55. Plaintiff relied upon the misrepresentation in purchasing the Purported Chagall Work. 56. Plaintiff had no knowledge of the falsity of the representation at the time that he purchased the Purported Chagall Work. 57. By reason of the foregoing, Plaintiff paid Defendants Concepcion and Proarte and has been damaged in the sum of $125, Upon information and belief, the Defendants Concepcion and Proarte have sold other works of art to other person and entities as original, genuine, and authentic pieces but which are in actuality counterfeits, forgeries, and/or copies of originals. 9

12 59. Upon information and belief, the FBI is still investigating the Defendants Concepcion and Proarte's sale of fraudulent art. 60. The Defendants' conduct was wanton, oppressive, willful and malicious and constituted a public harm, and consequently Plaintiff is entitled to an award of punitive damages in a sum to be determined at trial but not less than $1,000,000. SIXTH CAUSE OF ACTION (Breach of Contract for Purported de Kooning Work) 61. Plaintiff repeats and realleges paragraphs 1 through 60 of this verified complaint as if fully set forth herein. 62. Defendants Concepcion and Proarte sold Plaintiff the Purported de Kooning Work pursuant to a contract in which Defendants Concepcion and Proarte represented and warranted that the Purported de Kooning Work was an original, genuine, and authentic work by artist Willem de Kooning and presented to Plaintiff the Fraudulent de Kooning Documentation. 63. Plaintiff performed his obligations under the contract by paying Defendants Concepcion and Proarte $80,000 (in cash and artwork) for the Purported de Kooning Work. 64. The Purported de Kooning Work is not an original, genuine, or authentic work by the artist de Kooning Defendants Concepcion and Proarte breached their contract with Plaintiff. By reason of the foregoing, Plaintiff is entitled to damages in the sum of $80,

13 SEVENTH CAUSE OF ACTION (Breach of Warranty for Purported De Kooning Work) 67. Plaintiff repeats and realleges paragraphs 1 through 66 of this verified complaint as if fully set forth herein. 68. At the time Plaintiff purchased the Purported de Kooning Work, Defendants Concepcion and Proarte warranted to Plaintiff that it was an original, genuine, and authentic work by the artist Willem de Kooning. 69. The Purported de Kooning Work was not as warranted but was a counterfeit, forgery, or copy of an original piece and, as such, has little or no value. 70. At the time of the purchase, Plaintiff was unaware that the Purported de Kooning Work was not original, genuine, and authentic. Plaintiff. 71. The Defendants Concepcion and Proarte breached their warranty to 72. Defendants Concepcion and Proarte's delivery of the Purported de Kooning Work also constituted a breach of their (a) warranty of title under UCC and (b) their express warranty under UCC that the Purported de Kooning Work would conform to Defendants' description of it as an original, genuine, and authentic work of art. $80, By reason of the foregoing, Plaintiff is entitled to damages in the sum of EIGHTH CAUSE OF ACTION (Unjust Enrichment for Purported de Kooning Work) 74. Plaintiff repeats and realleges paragraphs 1 through 73 of this verified complaint as if fully set forth herein. 75. Defendants Concepcion and Proarte have been enriched by the receipt of funds from Plaintiff for the Purported de Kooning Work. 11

14 76. Plaintiff demanded Defendants Concepcion and Proarte repay him for his purchase of the Purported de Kooning Work. 77. Defendants Concepcion and Proarte have failed to repay Plaintiff the sum of $80,000 to compensate him for his purchase of the Purported de Kooning Work. 78. Defendants Concepcion and Proarte have been unjustly enriched by their receipt of hnds from Plaintiff for the Purported de Kooning Work. 79. Equity and good conscience demand that Defendants Concepcion and Proarte compensate Plaintiff $80,000 for his purchase of the Purported de Kooning Work. $80, By reason of the foregoing, Plaintiff is entitled to damages in the sum of NINTH CAUSE OF ACTION (Conversion for Purported de Kooning Work) 8 1. Plaintiff repeats and realleges paragraphs 1 through 80 of this verified complaint as if fully set forth herein. 82. Defendants Concepcion and Proarte's sale of the Purported de Kooning Work to Plaintiff in exchange for property in the form of funds and artwork, in the sum of $80,000, and failure to return that property constitutes an exercise of rights to the property contrary to the superior rights of the property's owner. Plaintiffs property. $80, Defendants Concepcion and Proarte's acts constitute a conversion of 84. By reason of the foregoing, Plaintiff is entitled to damages in the sum of 12

15 TENTH CAUSE OF ACTION (Fraud for Purported de Kooning Work) 85. Plaintiff repeats and realleges paragraphs 1 through 84 of ths verified complaint as it fully set forth herein. 86. Defendants Concepcion and Proarte falsely represented the Purported de Kooning Work to be an original, genuine, and authentic piece by the artists Willem de Kooning. 87. Defendants Concepcion and Proarte made the misrepresentation Willfully and with the intent to deceive Plaintiff. de Kooning Work. 88. Plaintiff relied upon the misrepresentations in purchasing the Purported 89. Plaintiff had no knowledge of the falsity of the representation at the time that he purchased the Purported de Kooning Work. 90. By reason of the foregoing, Plaintiff paid Defendants Concepcion and Proarte and has been damaged in the sum of $80, Upon information and belief, the Defendants Concepcion and Proarte have sold other works of art to other person and entities as original, genuine, and authentic pieces but which are in actuality counterfeits, forgeries, and/or copies of originals. 92. Upon information and belief, the FBI is still investigating the Defendants Concepcion and Proarte's fi-audulent sale of inauthentic art. 93. The Defendants' conduct was wanton, oppressive, willful and malicious and constituted a public harm, and consequently Plaintiff is entitled to an award of punitive damages in a sum to be determined at trial but not less than $1,000,

16 ELEVENTH CAUSE OF ACTION (Fraudulent Conveyance) 94. Plaintiff repeats and realleges paragraphs 1 through 93 of this verified complaint as if fully set forth herein. 95. Upon information and belief, Defendant Concepcion transferred title to the Apartment to Defendant Eros without consideration and with the actual intent to hinder, delay, and defraud either present or future creditors. 96. Upon information and belief, Concepcion conveyed the apartment to Eros because he knew that he would incur debts beyond his ability pay as they mature. 97. Upon information and belief, Eros is a gratuitous donee of Defendant Concepcion's interest in the Apartment. 98. Upon information and belief, the transfer of title to the Apartment from Defendant Concepcion to Defendant Eros is fraudulent under the New York Debtor Creditor Law, including under sections 275 and 276 of that law, and should be set aside as a fraudulent conveyance Plaintiff has no adequate remedy at law. Plaintiff has suffered irreparable injury in that the potential relief he seeks in this action may be a nullity as a direct result of the transfer of Concepcion's ownership of the Apartment to the Defendant Eros and the Defendants' intention to frustrate collection of any potential judgment The Court should impose a constructive trust on Defendant Eros's real property interest in the Apartment and, if the Apartment has been or is hereafter sold, any proceeds resulting from the sale thereof so that adequate funds will be available to satisfy a potential judgment in this action. 14

17 102. Plaintiff is entitled to recover attorney's fees as a result of the fraudulent conveyance By reason of the foregoing, Plaintiff has suffered damages in the amount of $205,000, not including attorney's fees. WHEREFORE, Plaintiff Dr. Richard Green demands judgment against Defendants Guiseppe Concepcim, Proarte.corn.com, Inc., and Eros C, Inc. as follows: on his first cause of action for breach of contract in the sum of $125,000; on his second cause of action for breach of warranty in the sum of $125,000; on his third cause of action for unjust enrichment in the sum of $125,000; on his fourth cause of action for conversion in the sum of $125,000; on its fifth cause of action for fraud in the sum of $125,000 and punitive damages in an amount to be detemined at trial but not less than $1,000,000; on his sixth cause of action for breach of contract in the sum of $80,000; on his seventh cause of action for breach of warranty in the sum of $80,000; on his eighth cause of action for unjust enrichment in the sum of $80,000; on his ninth cause of action for conversion in the sum of $80,000; on its tenth cause of action for fiaud in the sum of $80,000 and punitive damages in an amount to be determined at trial but not less than $1,000,000; 15

18 , k) on his eleventh cause of action for fraudulent conveyance in the sum of $205,000, setting aside the conveyance of the property interest in the Apartment transferred by deed from Defendant Concepcion to Defendant Eros, imposing a constructive trust on the property interest held by the Defendant Eros in the Apartment or any proceeds from the sale thereof and attorney's fees; 1) prejudgment interest; m) n) the cost and disbursements of the action; and such other and hrther relief as the Court deems just and proper. Dated: New York, New York Maya, 2009 PATTERSON BELKNAP WEBB & TYLER&LP Pgfer C. Harvey 1133 dhue of the Americas New York, New York (212) Attorneys for Plaintiff 16

19 VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW Y ON ) : ss.: DR. RICHARD GREEN, being duly sworn, deposes and says: I am the Plaintiff. I have read the foregoing Verified Complaint, and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matt Sworn to before me this - I 8G day of May, 2009

20 Y K 0 >- 3 W Z LL 0 W I- 2 cn + n Z a 0; z - w I- ' 5.- E o E m a? z- 0 2 W W K c3 n E a I 0 z