FILED: NEW YORK COUNTY CLERK 08/22/ :56 AM INDEX NO /2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/22/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x JOEL THOME, Plaintiff, Index No /2017 -against- COMPLAINT THE ALEXANDER AND LOUISA CALDER FOUNDATION and ALEXANDER S.C. ROWER, Defendants x Plaintiff JOEL THOME, by his attorneys, Law Office of Richard A. Altman, for his complaint against defendants, alleges as follows: 1. This action seeks damages for the defendants deliberate, malicious and tortious interference with prospective advantage possessed by the plaintiff, which resulted in his loss of a valuable opportunity to sell art works which he owns. Plaintiff also asserts claims for product disparagement and tortious interference with contract. THE PARTIES 2. Mr. Thome is a musician, composer and conductor. He resides in New York City. 3. Defendant THE ALEXANDER & LOUISA CALDER FOUNDATION a/k/a THE CALDER FOUNDATION ( Foundation ) is, on information and belief, a New York not-for-profit corporation with a place of business at 207 West 25th Street, 12th Floor, New York, New York of 17

2 4. On information and belief, the Foundation was created in 1988, and is a taxexempt private foundation under the Internal Revenue Code. 5. Defendant ALEXANDER S. C. ROWER is, on information and belief, the executive director of the Foundation and the grandson of renowned artist Alexander Calder. 6. According to defendant Foundation s website, the purpose of the Foundation is as follows: The Calder Foundation, a nonprofit 501(c)(3) organization founded in 1987 by Alexander S. C. Rower and the Calder family, is dedicated to collecting, exhibiting, preserving, and interpreting the art and archives of Alexander Calder and is charged with an unmatched collection of his works. The purposes of the Foundation include the furtherance of public knowledge and appreciation for the visual arts; the conduct of research in art history and related subjects, and the provision of the results of that research to the general public; and the provision of facilities and programs to assist the education and development of visual artists. The Foundation s projects include collaborating on exhibitions and publications, organizing and maintaining the Calder archives, examining works attributed to Calder, and cataloguing the artist s works. Over the past several years, the Calder Foundation has expanded its programming to include its own exhibitions, lectures, performances, and events on Calder as well as contemporary artists, including those whose work the Foundation supports through its biannual Calder Prize and the Atelier Calder residency program in Saché, France. 7. The Foundation s website also says the following: The Foundation has registered in its archive more than 22,000 works made by Calder. From monumental sculptures, mobiles, stabiles, paintings, and drawings, to lesser known works such as jewelry, furniture, and household tools, the Foundation documents the image, title, date, size, media, provenance, and publication and exhibition history for each work. Updates to these records continue daily with research and correspondence between more than 4,000 museums, collectors, dealers, auction houses, and scholars worldwide. Owners of works attributed to Calder are encouraged to register their works in the archive and to update the Foundation with any changes to their collections of 17

3 THE ARTWORK AT ISSUE 8. Plaintiff is the sole owner of the last major work created by Calder before his death. According to knowledgeable art dealers, its estimated value is more than $2 million. 9. The history of the work is well-documented, and shows that the work was unquestionably fabricated under Calder s personal supervision and in accordance with his intentions and specifications. It is thus a genuine Calder. 10. In 1975 and 1976, plaintiff worked closely with Calder in its fabrication, and the artist expressed several times to plaintiff its personal importance to him. 11. The work is a theatrical stage set, created for a production of musical work by French composer Erik Satie. It has four elements: (a) a large steel sculpture composed of pieces which move during the performance; (b) a version one-third smaller, (c) a maquette of the sculpture, and (d) an archive of original documents, some of which bear Calder s signature. These four items are collectively referred to herein as the Stage Set. THE DEFENDANTS ROLE IN THE MARKETPLACE 12. Solely because of the actions of defendants, plaintiff has been unable to sell the Stage Set outright, or pledge it for a loan, despite its great value, and binding offers to purchase it. 13. The offers and loans have all been contingent upon the inclusion of the work in Calder s catalogue raisonné, a document over which these defendants have total control. 1 1 A catalogue raisonné is regarded as a definitive catalogue of the works of a particular artist; inclusion of a painting in a catalogue raisonné serves to authenticate the work, while non-inclusion suggests that the work is not genuine. Kirby v. Wildenstein, 784 F.Supp. 1112, 1113 (S.D.N.Y.1992) -3-3 of 17

4 14. The Foundation s original statement of purpose was the compilation of a Calder catalogue raisonné. 15. However, at some point, the Foundation ended that project. Instead, it issues socalled registration numbers for putative Calders which are submitted to it. 16. The art market recognizes these registration numbers as indicia of marketability, and they are considered essential for that purpose. 17. The defendants, however, deny that the registration numbers constitute evidence of authenticity or marketability, but their denial is disingenuous. 18. Essentially, the Foundation occupies a monopoly position in the market for Calder artworks, in that it functions as the sole authenticator of them. whatsoever. 19. The objective evidence proves the authenticity of the Stage Set beyond any doubt 20. Rather than being guided by principles of scholarship, forensic analysis and artistic integrity, the defendants have for many years created a climate of fear among collectors and museums that at any moment, the Calder artworks which they own could arbitrarily be declared inauthentic and thus worthless. 21. This monopoly position is widely acknowledged by an apprehensive art world. A February 1997 article in ARTnews, When is a Calder not a Calder?, by Judd Tully, says the following: But the Calder Foundation is much more than a run-of-the-mill, low-profile institution created to perpetuate an artist s memory or assist younger artists. It has become a key player in the art world. Through its work on a Calder catalogue raisonné, it has sole authority to bestow or withhold the stamp of authenticity of 17

5 Prospective buyers consider it critical because, given the high prices of Calder s work, any purchase made without the committee s seal of approval would involve enormous financial risk. They have power over tremendous amounts of money, says one important anonymous Calder collector, and everybody is biting their fingernails and saying, Oh my God, what if [they] disqualif[y] this? They re in total control. I cannot let a client purchase a Calder privately or at auction without confirming beforehand...that it is going to be in the catalogue raisonné, says Abigail Asher, a partner in the art advisory firm Guggenheim Asher Associates, who has bought several major Calders over the years. Asked how long her policy has been in effect, she answered, Ever since Rio Nero. That assessment was echoed by virtually every dealer and artworld source contacted for this article. (brackets in original; copy annexed as Exhibit A). 22. The reference in the quoted language to Rio Nero is to a court case involving the authenticity of a Calder sculpture by that name, Greenberg Gallery, Inc. v. Bauman, 817 F.Supp.167 (D.D.C.1993). 23. Since Calder s death in 1976, sales of his works of art have been of major importance in the multi-billion dollar market for modern and contemporary art. His sculptures and mobiles typically sell for millions of dollars. In 2012, a standing mobile by Calder entitled Lily of Force sold at Christie s auction house for $18.5 million. On May 14, 2014, the New York Times reported that a 1958 Calder mobile entitled Poisson Volant/Flying Fish sold at auction at Christie s the previous night for nearly $26 million. At the present time, there is a major retrospective of Calder s art on display at the Whitney Museum in New York. These events have increased the value of plaintiff s Stage Set. 24. On information and belief, these defendants also have manipulated the market for Calder artworks by withholding authentication of other works which are unquestionably authentic, with the intention of preventing the owners of these works from selling them of 17

6 25. On information and belief, there are other owners of Calder artworks whose ability to sell their works has been harmed by the defendants refusal to authenticate them. 26. For example, on information and belief, a collector named Robert Lawrence, a film producer in California, owns an oil painting by Calder. 27. On information and belief, Mr. Lawrence was unable to put his painting up for auction, solely because the defendant Foundation refused to authenticate it. 28. For another example, in February 2014, one Patrick Cramer, a Swiss art dealer, brought an antitrust suit against these defendants in the U.S. District Court for the Southern District of New York, alleging that the Foundation has refused to authenticate a sculpture which Mr. Cramer s father had purchased directly from Calder himself in The case is Cramer v. The Calder Foundation et al., 14 Civ (RMB). 29. On information and belief, the case was settled when the defendant Foundation agreed to issue a registration number for the sculpture. 30. For another example, in 1998, on information and belief, a collector named Scott Palmer submitted to the defendant Foundation a request for the authentication of a 1950 Calder sculpture which he owned. 31. Further on information and belief, the authentication was denied. 32. Further on information and belief, Mr. Palmer spoke directly with defendant Rower, who suggested that he (Mr. Palmer) should donate the work to the Foundation, so that he (Mr. Rower) could put it in the basement with all the other fakes, and that if he (Mr. Palmer) did so, the Foundation would give Mr. Palmer a charitable tax deduction of 17

7 33. Further on information and belief, Mr. Palmer rejected the request that he donate the work to the Foundation. 34. Further on information and belief, defendant Rower then said, make up a number. 35. Further on information and belief, Mr. Palmer rejected the request, and defendant Rower said, Then I will make sure you can never sell it. 36. Further on information and belief, Mr. Palmer learned later that the work was unquestionably authentic. 37. Defendant Rower has testified under oath that the defendant Foundation never buys or sells Calder artworks. 38. Such testimony is demonstrably false. THE HISTORY 39. In 1975, plaintiff worked with Alexander Calder in the latter s fabrication of a stage set for a musical production which Mr. Thome was to conduct. 40. Calder died in November 1976, shortly before the musical production was to take place, and the performance, with the Calder-designed full-size stage set, took place in November 1977 as a memorial. 41. Mr. Thome conducted the performance, and members of Calder s family were part of the official organizing committee. 42. Mr. Thome paid for the fabrication of these works, and has paid for their storage to the present time. He has full and unencumbered title to them of 17

8 43. A video excerpt of the original performance, showing the Stage Set, can be seen at The authenticity of these works as genuine Calders cannot be reasonably questioned. 45. There is a lengthy and contentious history between the parties to this action. 46. The history of plaintiff s Stage Set and of his dealings with the defendants is set forth in detail in a decision from the Appellate Division, First Department arising from prior litigation between the parties. See Thome v. The Alexander & Louisa Calder Foundation, 70 AD3d 88 (1st Dept.2009), lv.den. 15 NY3d 703 (2010). 47. That case was based upon the refusal of the defendants to respond to plaintiff s submission of the Stage Set, and request that they issue registration numbers, either by issuing the numbers, or refusing to issue them at all. Rather, defendants refused to respond one way or the other for years. 48. The Supreme Court, and the First Department, held that the defendants had no positive obligation to respond, and dismissed plaintiff s action. 49. Since the 1990 s, Mr. Thome has continued to seek to sell the Stage Set, but has been stymied by the Calder Foundation s long-standing refusal to issue registration numbers for them. 50. Although the Foundation denies vigorously that these numbers are indicia of authenticity of a Calder artwork, they are as a practical matter exactly that. Because of the Foundation s importance in the art world, the issuance of these numbers is essential to the marketability of any Calder artworks of 17

9 51. Without them the works are unsaleable, even though their authenticity, and the circumstances of their creation, may not in be dispute by anyone involved, and even though there may be documentary and photographic evidence of their authenticity, all of which exist here. 52. Continuing to having his efforts to sell them defeated by the lack of registration numbers, in May 2014 plaintiff commenced another action against the Foundation. It was a federal antitrust action in the U.S. District Court for the Southern District of New York. 53. Based upon the Sherman Act and the New York State Donnelly Act, the complaint alleged that the Foundation enjoyed a monopoly position in the market for works of art by Calder, and that by virtue of their gate-keeping function, they had the power to prevent disfavored owners of Calders from entering the marketplace. The complaint further alleged that the defendants had abused that power by willfully and maliciously refusing to issue registration numbers for Mr. Thome s works, despite their unquestionable authenticity, and that he suffered antitrust damages as a result. 54. The defendants later offered to settle the action, by issuing the registration numbers in exchange for plaintiff s discontinuing the action, with prejudice, and the parties exchanging general releases. Plaintiff accepted the offer. 55. It was also agreed between the parties that the Foundation would not interfere with any proposed sales of any of the works, but would simply confirm the existence and validity of the registration numbers to any potential purchaser, no more and no less of 17

10 56. The plaintiff and defendants agreed to settle the action, and on June 4, 2015, the action was dismissed with prejudice, and the parties later exchanged general releases. The Foundation issued three registration numbers to the plaintiff, corresponding to the three works of art comprising the Stage Set. THE DEAL WITH PHILLIPS 57. Following the receipt of the registration numbers, and in reliance on the defendants promises not to interfere with any future sales, plaintiff then retained the services of Luis Cancel as his agent. 58. Mr. Cancel was the Executive Director of The Bronx Museum of the Arts for nearly fourteen years, was appointed Commissioner of the NYC Department of Cultural Affairs under Mayor David Dinkins, and served in a similar capacity for Mayor Gavin Newsom in San Francisco. He has extensive experience in the contemporary art market. 59. Mr. Cancel prepared written materials describing the Stage Set and its historic importance, and approached several prominent organizations to offer them for sale. 60. In February and March 2016, he dealt with the Phillips Auction House on Park Avenue. He had a meeting at their offices, and then had several conference calls with their representatives The Phillips representatives were enthusiastic about the maquette and its importance. 62. In a conference call with Phillips on March 24, they offered to accept the maquette on consignment, and to sell it at an upcoming auction of contemporary art, set for May of 17

11 63. Phillips estimated the maquette s value at $400,000, and promised that it would commission an art critic to write a scholarly essay about the work, and place a photograph of it on the cover of the auction catalog. 64. One representative then told Mr. Cancel that as a matter of routine, she wanted to call defendant Rower to assure that the registration number for the maquette was valid. 65. She also told Mr. Cancel that plaintiff would have to sign and return a formal consignment agreement promptly, because of the deadline for the May 2016 auction. 66. She also told Mr. Cancel that she would call him the following Monday, March 28, 2016, and that she would call defendant Rower before then. 67. However, she did not call Mr. Cancel on March Mr. Cancel called another Phillips representative the next day, March 29, and was told that the deal was off and that Phillips would not accept the consignment. 69. No explanation was provided to Mr. Cancel, despite his repeated questions. 70. Phillips later said that the reason for rejecting the consignment was that the maquette was a re-creation of the original. 71. This was a pretext, because the Stage Set, and the maquette, were always known to and understood by Phillips as a re-creation of the original stage set, which was created in the 1930 s and destroyed in a fire. 72. Moreover, the history of litigation between plaintiff and the defendants was discussed and known to Phillips of 17

12 73. Phillips told Mr. Cancel and the plaintiff that that history was not considered to be an obstacle, so long as plaintiff was in possession of the registration numbers, because the numbers were tantamount to a declaration of authenticity in the marketplace, and that was sufficient. 74. The history of animosity expressed toward the plaintiff by the Foundation in general, and defendant Rower in particular, and its long history of refusing to issue registration numbers for Calder artworks of indisputable authenticity without stating a reason (and not just for Mr. Thome, but for other owners of Calders as well), is evidence of malice. 75. Defendants have asserted repeatedly that the Foundation does not buy and sell works by Alexander Calder. 76. There is thus no legitimate competitive business interest which the defendants could have in preventing the maquette from being sold at auction. FIRST CAUSE OF ACTION (Tortious Interference with Contract and Fiduciary Relation) 77. Plaintiff re-alleges paragraphs 1 through The consignment agreement with Phillips was a valid and enforceable contract. 79. Defendants actions were the direct cause of Phillips refusal to perform the obligations which it had assumed under the consignment agreement, namely to use its best efforts to promote and sell the maquette at the best possible price at the auction to be held in May Moreover, the contract with Phillips was a fiduciary relation, inasmuch as auctioneers are in a relation of trust and confidence with their consignors of 17

13 81. Defendants had knowledge of the contract, because the Phillips representative informed defendants of it when she called to determine the validity of the registration numbers. 82. The defendants intentionally procured the refusal by Phillips to perform its obligations to plaintiff, without justification. Phillips. 83. Defendants actions amounted to tortious interference with plaintiff s contract with 84. Defendants actions were also tortious interference with the fiduciary relation between plaintiff and Phillips. 85. The refusal of Phillips to proceed in good faith to sell the maquette at auction was a breach of the consignment agreement. 86. Plaintiff was damaged by the loss of the opportunity to sell the maquette, in the amount of its value. 87. The refusal of Phillips to proceed was also damaging to the value of the other parts of the Stage Set. SECOND CAUSE OF ACTION (Interference with Prospective Advantage) 88. Plaintiff re-alleges paragraphs 1 through During February and March 2016, plaintiff and his agent, Luis Cancel, were engaged in business relations and negotiations with the Phillips Auction House. 90. The business relations and negotiations were concerning the consignment of the Stage Set, to be sold by Phillips at a public auction in May of 17

14 91. Defendants interfered with those business relations and negotiations, and with plaintiff s prospective advantage, by impugning the authenticity of the Stage Set, or portions of it, and in other ways. 92. Defendants are not in competition with plaintiff in the art market, and defendants consistently deny that they are involved in the buying and selling of artworks by Calder, and serve only an educational and scholarly function with respect to them. 93. This denial is false. 94. Defendants sole purpose in interfering with plaintiff s business relations and negotiations was malicious and intended to cause harm to the plaintiff. 95. Plaintiff has been harmed by defendants interference, in that Phillips refused to perform its agreement with him to accept the consignment and sell a part of the Stage Set at the public auction. 96. Had Phillips performed its obligations under the consignment agreement, and had the maquette been sold at public action, the other artworks in the Stage Set would have increased in value and marketability. 97. Defendants have previously acted with malicious intent to interfere with plaintiff s business relations with other third parties, by warning potential purchasers not to enter into agreements with plaintiff to sell portions of the Stage Set. 98. Defendants are therefore liable to plaintiff for the damages caused by their tortious interference with his business relations and prospective advantage of 17

15 THIRD CAUSE OF ACTION (Product Disparagement) 99. Plaintiff re-alleges paragraphs 1 through On or about March 24, 2016, a Phillips representative told Mr. Cancel that she intended to call defendant Rower, saying that she had a close relationship with Sandy, that she wanted to make sure that in a way we have his blessing, and that it was always better to have him feel that he has been involved On or about March 25, 2016, the Phillips representative inquired of defendant Rower and another employee of defendant Foundation, Alexis Marotta, about the validity of the registration numbers assigned to the Stage Set During that conversation, Ms. Marotta said that she would not confirm the validity of the registration number unless the maquette was brought to the defendants for examination On information and belief, defendant Rower communicated to the Phillips representative that the maquette was not authentic, despite the existence of the registration number for it The maquette is unquestionably an authentic work of art by Calder, and sany statement to the contrary constitutes product disparagement On or about March 28, 2016, representatives of Phillips notified Mr. Cancel that they would not proceed with the auction sale as promised Those representatives then claimed that they were withdrawing the maquette from sale, because it was a re-creation of the original version which was created in the 1930 s of 17

16 107. This claim was a pretext, because the maquette was an original work, created in the 1970 s, and Phillips knew that to be so from the initial conversations between Mr. Cancel and Phillips representatives This claim was also a pretext, because plaintiff and Mr. Cancel had always informed Phillips that the Stage Set was a recreation of the original stage set, from the 1930 s, which had been destroyed in a fire On information and belief, Phillips has worked with defendants closely over the years in the marketing and sales of Calder artworks Phillips is dependent upon the good will of the defendants for its continued ability to participate in the market for Calder artworks On information and belief, Phillips has business reasons to cooperate with the defendants, and refused to proceed with the consignment contract in order to remain on good terms with the defendant This conclusion is supported by the Judd Tully article in ARTNews, referenced above The communication was made with intent to disparage the maquette s quality, authenticity or saleability According to defendants, they never buy or sell Calder artworks, and therefore they are not competing with the plaintiff in the marketplace of 17

17 115. Assuming that this statement is true, the defendants therefore have no personal stake in whether plaintiff sells the Stage Set, and are not engaged in any business activities which could compete with plaintiff s Their disparagement of the Stage Set is thus motivated solely by malice and not by competitive rivalry or business competition. DAMAGES ALLEGATIONS 117. By reason of the defendants actions, plaintiff has suffered special damages, in that the defendants actions have deprived him of the opportunity to sell the maquette at public auction, and those damages are the price which the maquette would realize Plaintiff has also suffered damages, in that the sale of the maquette would have increased the value and marketability of the other artworks in the Stage Set In sum, defendants actions have rendered the Stage Set unsaleable and unmarketable, and have deprived plaintiff of the opportunity to realize its value of more than $2 million. WHEREFORE, plaintiff demands damages on his three causes of action in such sums as the Court may determine, together with the costs and disbursements of this action and such other relief as may be just. Dated: New York, New York August 22, 2017 LAW OFFICE OF RICHARD A. ALTMAN Attorneys for Plaintiff 285 West Fourth Street New York, New York of 17