FILED: NEW YORK COUNTY CLERK 01/17/ :08 PM INDEX NO /2017 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/17/2017

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1 FILED: NEW YORK COUNTY CLERK 01/17/ :08 PM INDEX NO /2017 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/17/2017! SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X PETER COFFIN, -against- Plaintiff, PADDEN KERR PROJECTS LLC, CHRISTOPHER KERRY, and KELLY PADDEN, VERIFIED COMPLAINT Index No.: /2016 Defendants X Plaintiff Peter Coffin, by and through his attorney, Ellery Ireland, as and for a Verified Complaint against the defendants alleges that at all time hereinafter mentioned: THE PARTIES 1. Peter Coffin ( the Plaintiff ) is a natural born person, over eighteen years of age, who resides at 226A North Henry Street, Brooklyn, New York, Coffin is in the business of creating works of art and is the owner of the work of art known as Untitled (Steamroller Music Box) (hereinafter the Artwork ). 3. The Defendant is the owner of the property known as 119 Park Road, Wurtsboro, New York ( the Wurtsboro Property ). 1 of 14

2 4. Padden Kerr Projects LLC ( PKP ) was a domestic limited liability company, with offices located at 96 Perry Street, Apartment B8, New York, New York Padden Kerr Projects was engaged in the business of the sale of works of art. 6. Padden Kerr Projects LLC was dissolved in November 4, Christopher Kerr ( Kerr ) is a natural-born person over eighteen years of age. 8. Upon information and belief, Kerr regular place of business is 1609 Martha Berry Blvd., Rome, Georgia Upon information and belief, Kerr was a principle of PKP. 10. Kelly Padden is a natural-born person, over eighteen years of age. 11. Upon information and belief, Padden resides at 96 Perry Street, Apartment B8, New York, New York Upon information and belief, Padden was a principle of PKP. JURISDICTION 13. This Court has jurisdiction over this proceeding pursuant to CPLR 301 and of 14

3 VENUE 14. Venue is proper pursuant to CPLR 501. FACTUAL ALLEGATIONS 15. On July 6, 2011, the Plaintiff and PKP executed a consignment agreement ( the Agreement ). 16. Pursuant to the terms of the Agreement, Coffin consigned the Artwork to PKP. 17. The purpose of the Agreement was the sale of the Artwork. 18. The Plaintiff received just consideration for execution of the Agreement. 19. As consideration under the terms of the Agreement, the Plaintiff was entitled to sixty (60) per cent of the net proceeds from the sale of the Artwork. 20. Padden Kerr Projects LLC received just consideration in exchange for execution of the Agreement. 21. As consideration under the terms of the Agreement, PKP was entitled to forty (40) per cent of the net proceeds from the sale of the Artwork. 3 of 14

4 22. Pursuant to the terms of the Agreement, the initial consignment period lasted from July 6, 2011 to February 6, 2012 ( the Initial Consignment Period ). 23. Pursuant to the terms of the Agreement, after the Initial Consignment Period, the Agreement would automatically renew for a term of six months. 24. The Agreement states that, [d]uring the Consignment Period, [PKP] agrees to pay all costs and expenses of storing, crating, packing, and shipping [the Artwork] until [the Artwork] is sold. 25. The Agreement states that PKP will be responsible for any damage to the Artwork so long as it remained in PKP s custody. 26. The Agreement states that PKP shall provide the Plaintiff with a condition report upon the Plaintiff s request. 27. The Agreement states that PKP shall be responsible for any damage to the Artwork while the Artwork is in a storage facility. 28. Padden Kerr Projects LLC never sold the Artwork. 29. The Artwork sustained damage prior to November The Artwork sustained damage while in the custody of PKP. 31. In March 2015, PKP notified the Plaintiff that the Artwork had sustained damage. 4 of 14

5 32. The Plaintiff requested a condition report from PKP in March Padden Kerr Projects never provided the Plaintiff with a condition report. 34. Padden Kerr Projects LLC was dissolved on November 4, Padden Kerr Projects did not inform the Plaintiff that PKP had been dissolved prior to March 17, Padden did not inform the Plaintiff that PKP had been dissolved prior to March 17, Kerr did not inform the Plaintiff that PKP had been dissolved prior to March 17, On March 17, 2016, Kerr informed Coffin the PKP had been dissolved. 39. On March 27, 2016, Kerr informed Coffin that Coffin would henceforth be responsible for the storage of the Artwork. 40. On March 30, 2016, the Plaintiff was informed by PKP s counsel that PKP was dissolved. 41. On April 13, 2016, the Plaintiff, through counsel, informed PKP that PKP was not authorized to deliver the Artwork to the Wurtsboro Property. 5 of 14

6 Property. Property. 42. Kerr directed the Artwork to be delivered to the Wurtsboro 43. Padden directed the Artwork to be delivered to the Wurtsboro 44. One part of the Artwork was a kalimba. 45. The kalimba was integral to the function of the Artwork. 46. Upon information and belief, Padden removed the kalimba from the Artwork. Artwork. 47. Padden did not have authority to remove the kalimba from the 48. Upon information and belief, Padden is currently in possession of the kalimba. 49. The Plaintiff never authorized Padden s ongoing possession of the kalimba. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract Against All Defendants) 50. Plaintiff repeats and realleges all of the allegations set forth 51. There exists a contract between the Parties, to wit the Agreement. 52. The Plaintiff has fulfilled all obligations under the Agreement. 6 of 14

7 52. All Defendants breached the terms of the Agreement, in that the Defendants did not comply with such provisions of the Agreement as required the Defendants to provide the Plaintiff with a condition report, if the Plaintiff were to request one. 53. There is no justification for the Defendants breach. 54. The Plaintiff was damaged as a result of the Defendants breach of the Agreement. AS AND FOR A SECOND CAUSE OF ACTION (Fraudulent Misrepresentation Against All Defendants) 55. Plaintiff repeats and realleges all of the allegations set forth 56. The Agreement required the Defendants to notify the Plaintiff of PKP s dissolution within in five (5) days of such dissolution. 57. The Defendants did not inform the Plaintiff that PKP was formally dissolved within five (5) days of such dissolution. 58. The dissolution of PKP was a material fact. 59. The Defendants omitted a material fact in November 2015, to wit that PKP was dissolved. 60. The aforesaid material fact was omitted for the purpose of inducing the Plaintiff to believe that the Agreement was still in full force and effect. 7 of 14

8 61. The aforesaid material fact was omitted for the purpose of inducing the Plaintiff to believe that PKP was in business. 62. From November 2015 to May 2016, the Plaintff relied justifiably on the belief that PKP was in business. 63. As a result of the Defendants omission of the aforesaid material fact, the Plaintiff was damaged. AS AND FOR A THIRD CAUSE OF ACTION (Negligence Against All Defendants) 64. Plaintiff repeats and realleges all of the allegations set forth 65. The Defendants owed a duty to the Plaintiff to protect the Artwork from damage. 66. The Defendants owed a duty to the Plaintiff to store the Artwork under conditions that would not subject the Artwork to damaging physical conditions. 67. The Defendants breached that duty in that the Defendants allowed the Artwork to be subjected to physical conditions that damaged the Artwork. 68. The Defendants negligence was the proximate cause of the damage sustained by the Artwork. 8 of 14

9 negligence. 69. The Plaintiff suffered damage as a result of the Defendants AS AND FOR A FOURTH CAUSE OF ACTION (Breach of Duty of Good Faith and Fair Dealing Against All Defendants) 70. Plaintiff repeats and realleges all of the allegations set forth 71. The Plaintiff and the Defendants were parties to a contract, to wit the Agreement. 72. The Defendants acted in a manner that deprived the Plaintiff of his right to receive the benefits of the Agreement. 73. Said acts of the Defendants were not expressly forbidden by any provision of the Agreement. 74. The Defendants breach was not a breach of an express provision of the Agreement. damaged. 75. As a result of the Defendants breach, the Plaintiff was AS AND FOR A FIFTH CAUSE OF ACTION (Breach of Fiduciary Duty Against All Defendants) 76. Plaintiff repeats and realleges all of the allegations set forth 9 of 14

10 77. Pursuant to New York City s Arts and Cultural Affairs Law section 12.01, under the terms of the Agreement, the Artwork was trust property held by the Defendants for the benefit of the Plaintiff. 78. The Defendants did not treat the Artwork in a manner consistent with the requirements of fiduciaries in section of the estates, powers and trusts law. 79. The Defendants engaged in misconduct that violated the fiduciary duty they owed to the Plaintiff. 80. The misconduct engaged in by the Defendants was contrary to the interests of the Plaintiff. damaged. 81. As a result of each Defendant s misconduct, the Plaintiff was AS AND FOR A SIXTH CAUSE OF ACTION (Trespass Against Padden and Kerr Individually) 82. Plaintiff repeats and realleges all of the allegations set forth 83. The Plaintiff is the owner of the Wurtsboro Property. 84. Padden interfered with the Plaintiff s possession of the Wurtsboro Property. 85. Said interference on the part of Padden was intentional. 10 of 14

11 Property. 86. Kerr interfered with the Plaintiff s possession of the Wurtsboro 87. Said interference on the part of Kerr was intentional. 88. As a result of the interference of Padden and Kerr with the Plaintiff s ownership of the Wurtsboro Property, the Plaintiff was damaged. AS AND FOR A SEVENTH CAUSE OF ACTION (Conversion Against Padden Individually) 89. Plaintiff repeats and realleges all of the allegations set forth Artwork. 90. The Plaintiff is, and at all time has been, the owner of the 91. Padden interfered with the Plaintiff s ownership of the Artwork, in derogation of the Plaintiff s rights as owner of the Artwork. 92. As a proximate result of Padden s interference with Plaintiff s ownership of the Artwork, the Plaintiff was damaged. AS AND FOR A EIGHTH CAUSE OF ACTION (Unjust Enrichment Against Padden Individually) 93. The Plaintiff repeats and realleges all of the allegations set forth 94. Padden benefitted at the expense of the Plaintiff. 95. Equity and good conscience require restitution. 11 of 14

12 WHEREFORE, plaintiff demands judgment against the defendants: a. On the First Cause of Action, in a sum of money having a present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction over this matter; b. On the Second Cause of Action, a sum of money having a present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction over this matter; c. On the Third Cause of Action, a money judgment for $400,000.00; d. On the Fourth Cause of Action, a sum of money having a present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction over this matter; e. On the Fifth Cause of Action, a sum of money having a present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction over this matter; f. On the Sixth Cause of Action, a sum of money having a present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction over this matter. (This space intentionally left blank) 12 of 14

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