SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SOPHOCLES ZOULLAS, Index No. 155490/2013 vs. Plaintiff, DEFENDANT S PROPOSED JURY CHARGES NICHOLAS ZOULLAS, Defendant. Defendant Nicholas Zoullas submits the accompanying Proposed Jury Charges to be read at the onset of trial and after the close of evidence. I. PROPOSED CHARGES TO BE READ AT THE ONSET OF TRIAL 1) PJI 1:3 Openings and Evidence When I have completed these opening instructions to you, the attorneys will make opening statements to you in which each will outline for you what (he, she) expects to prove. The purpose of such opening statements is to tell you about each party's claims so that you will have a better understanding of the evidence as it is introduced. What is said in such opening statements is not evidence. The evidence upon which you will base your decision will come from the testimony of witnesses here in court or in examinations before trial, or in the form of photographs, documents, or other exhibits introduced into evidence. Plaintiff makes an opening statement first, and is followed by defendant. After the opening statements, plaintiff will introduce evidence in support of (his, her) claim. Normally a plaintiff must produce all of (his, her) witnesses and complete (his, her) entire case before defendant introduces any evidence, although exceptions are sometimes made to that rule in order to accommodate a witness. After plaintiff has completed the introduction 2560152 v5 16327.00002 1 of 20
of all of (his, her) evidence, defendant may present witnesses and exhibits. If (he, she) does so, plaintiff may be permitted to offer additional evidence for the purpose of rebutting defendant's evidence. Each witness is first examined by the party who calls that witness to testify, and then the opposing party is permitted to question the witness. Additional examination and questioning of a witness may occur. 2) PJI 1:4 Objections, Motions, Exceptions At times during the trial, an attorney may object to a question or to the introduction of an exhibit or make motions concerning legal questions that apply to this case. Arguments in connection with such objections or motions are sometimes made out of the presence of the jury. Any ruling upon such objections or motions will be based solely upon the law and therefore you must not conclude from any such ruling or from anything I say during the course of the trial that I favor (either, any) party to this lawsuit. After such a ruling, you may hear one of the attorneys taking what we call an exception to it. Exceptions have nothing to do with your role in this case and I mention the procedure to you so that you will not be confused if you hear the word during the trial. 3) PJI 1:5 Summations Upon completion of the introduction of evidence, the attorneys will again speak to you in a closing statement or summation. In summing up, the lawyers will point out what they believe the evidence has shown, what inferences or conclusions they believe you should draw from the evidence and what conclusions they believe you should reach as your verdict. What is said by the attorneys in summation, like what is said by them in their opening statements, or in the making of 2 2 of 20
objections or motions during the trial, is not evidence. Summations are intended to present the arguments of the parties based on the evidence. Under our system, the defendant sums up first, followed by the plaintiff. 4) PJI 1:6 Function of Court and Jury After the summations, I will instruct you on the rules of law applicable to the case and you will then retire for your deliberations. Your function as jurors is to decide what has or has not been proved and apply the rules of law that I give you to the facts as you find them to be. The decision you reach will be your verdict. Your decision will be based on the testimony that you hear and the exhibits that will be received in evidence during the trial. You are the sole and exclusive judges of the facts and nothing I say or do should be taken by you as any indication of my opinion as to the facts. As to the facts, neither I nor anyone else may invade your province. I will preside impartially and not express any opinion concerning the facts. Any opinions of mine on the facts would, in any event, be totally irrelevant because the facts are for you to decide. On the other hand, and with equal emphasis, I instruct you that in accordance with the oath you took as jurors you are required to accept the rules of law that I give you whether you agree with them or not. You are not to ask anyone else about the law. [If a lawyer or judge is a member of the jury, the following should be added: including the lawyer or judge serving as a juror.] You should not consider or accept any advice about the law from anyone else but me. 3 3 of 20
5) PJI 1:7 Consider Only Competent Evidence As the sole judges of the facts, you must decide which of the witnesses you believe, what portion of their testimony you accept and what weight you give to it. At times during the trial I may sustain objections to questions and you may hear no answer, or, where an answer has been made, I may instruct that it be stricken or removed from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusion from an unanswered question nor may you consider testimony which has been stricken or removed from the record in reaching your decision. The law requires that your decision be made solely upon the evidence before you. Such items as I exclude from your consideration will be excluded because they are not legally admissible. 6) PJI 1:8 Weighing Testimony The law does not, however, require you to accept all of the evidence I shall admit. In deciding what evidence you will accept you must make your own evaluation of the testimony given by each of the witnesses, and decide how much weight you choose to give to that testimony. The testimony of a witness may not conform to the facts as they occurred because he or she is intentionally lying, because the witness did not accurately see or hear what he or she is testifying about, because the witness' recollection is faulty, or because the witness has not expressed himself or herself clearly in testifying. There is no magical formula by which you evaluate testimony. You bring with you to this courtroom all of the experience and background of your lives. In your everyday affairs you decide for yourselves the reliability or unreliability of things people tell you. The same tests that you use in your everyday dealings are the tests which you apply in your 4 4 of 20
deliberations. The interest or lack of interest of any witness in the outcome of this case, the bias or prejudice of a witness, if there be any, the age, the appearance, the manner in which the witness gives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies, the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the case, are all items to be considered by you in deciding how much weight, if any, you will give to that witness' testimony. If it appears that there is a conflict in the evidence, you will have to consider whether the apparent conflict can be reconciled by fitting the different versions together. If, however, that is not possible, you will have to decide which of the conflicting versions you will accept. 7) Proposed Instruction re: Absence of Nicholas The defendant, Nicholas Zoullas, will not be testifying in this case. He is 79 years old, infirm, and medical professionals have determined that he is unable to participate in this trial. The absence of Mr. Nicholas Zoullas should not and may not be the basis for an inference against him, and you should not consider the absence of his testimony in evaluating the evidence. 8) Interested Witness Instruction Modeled on PJI 1:91 PJI Instruction Verbatim: The plaintiff and the defendant both testified before you. As parties to the action, both are interested witnesses. An interested witness is not necessarily less believable than a disinterested witness. The fact that (he, she) is interested in the outcome of the case does not mean that (he, she) has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has been influenced, intentionally or unintentionally, by (his, her) interest. You may, if you consider it proper under all of the 5 5 of 20
circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness, and may accept all or such part of (his, her) testimony as you find reliable and reject such part as you find unworthy of acceptance. Proposed Instruction: The plaintiff testified before you. As a party to the action, he is an interested witness. An interested witness is not necessarily less believable than a disinterested witness. The fact that he is interested in the outcome of the case does not mean that he has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has been influenced, intentionally or unintentionally, by his, interest. You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness, and may accept all or such part of his testimony as you find reliable and reject such part as you find unworthy of acceptance. Redline: The plaintiff and the defendant both testified before you. As partiesa party to the action, both arehe is an interested witnesseswitness. An interested witness is not necessarily less believable than a disinterested witness. The fact that (he, she) is interested in the outcome of the case does not mean that (he, she) has not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has been influenced, intentionally or unintentionally, by (his, her) interest. You may, if you consider it proper under all of the 6 6 of 20
circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness, and may accept all or such part of (his, her) testimony as you find reliable and reject such part as you find unworthy of acceptance. II. PROPOSED CHARGE TO BE READ DURING TRIAL 1) PJI 1:94 General Instruction Use of Pre-Trial Deposition Upon Trial You are about to hear the lawyer for (plaintiff, defendant) read portions of a document referred to as an examination before trial of (plaintiff, defendant, the witness AB). You may hear the lawyers refer to this document as an EBT or deposition. At some point before this trial began the (plaintiff, defendant, witness AB), under oath, answered certain questions put to (him, her) by the lawyers for (plaintiff, defendant, all parties). A stenographer recorded the questions and answers and transcribed them into a document which the (plaintiff, defendant, witness AB) later signed before a notary public. The portions of the transcript of the examination before trial that you will hear are to be considered as if (plaintiff, defendant, witness AB) were testifying from the witness stand. III. PROPOSED CHARGES TO BE READ AFTER THE CLOSE OF EVIDENCE 1) PJI 1:20 Introduction Members of the jury, we come now to that portion of the trial when you are instructed on the law applicable to the case and after which you will retire for your final deliberations. You have now heard all the evidence introduced by the parties and through arguments of their attorneys you 7 7 of 20
have learned the conclusions which each party believes should be drawn from the evidence presented to you. 2) PJI 1:21 Review Principles Stated You will recall that at the beginning of the trial I stated for you certain principles so that you could have them in mind as the trial progressed. Briefly, they were that you are bound to accept the law as I give it to you, whether or not you agree with it. You are not to ask anyone else about the law. [If a lawyer or judge is a member of the jury, the following should be added: including the lawyer or judge serving as a juror.] You should not consider or accept any advice about the law from anyone else but me. Furthermore, you must not conclude from my rulings or anything I have said during the trial that I favor any party to this lawsuit. Furthermore, you may not draw any inference from an unanswered question nor consider testimony which has been stricken from the record in reaching your decision. Finally, in deciding how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be used. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the tests you will apply in your deliberations. The items to be taken into consideration in determining the weight you will give to the testimony of a witness include the interest or lack of interest of the witness in the outcome of the case, the bias or prejudice of the witness, if there be any, the age, the appearance, the manner of the witness as the witness testified, the opportunity that the witness had to observe the facts about which he or she testified, the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the case. If it appears that there is a conflict in the evidence, you will have to consider whether the apparent conflict can be reconciled by fitting the different versions together. 8 8 of 20
If, however, that is not possible, you will then have to decide which of the conflicting versions you will accept. 3) PJI 1:22 Falsus in Uno If you find that any witness has willfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally unbelievable. You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it. 4) PJI 1:24 Return to Courtroom If, in the course of your deliberations, your recollection of any part of the testimony should fail, or you have any question about my instructions to you on the law, you have the right to return to the courtroom for the purpose of having such testimony read to you or have such question answered. 5) PJI 1:25 Consider Only Testimony and Exhibits In deciding this case, you may consider only the exhibits which have been admitted in evidence and the testimony of the witnesses as you have heard it in this courtroom (or as there has been read to you testimony given on examination before trial. Under our rules of practice an 9 9 of 20
examination before trial is taken under oath and is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial and outside the courtroom). However, arguments, remarks, and summation of the attorneys are not evidence nor is anything that I now say or may have said with regard to the facts, evidence. Do not use any internet services, social media or texting services, such as Google, Facebook, and Twitter, to individually or collectively give or get any information about the case or to research topics concerning the trial. It is important that electronic devices including any cell phones, smartphones, laptops or any other personal electronic devices be turned off while you are deliberating. [In the event that the court requires the jurors to relinquish their devices, the charge should be modified to reflect the court's practice.] Allowing outside information, which may be inaccurate, to affect your judgment is unfair and prejudicial to the parties and could lead to this case having to be retried. 6) Instruction re: Statute of Limitations In June 2013, Plaintiff started this lawsuit and asserted a claim for what the law refers to as conversion. Conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner s right. An action for conversion is subject to a three-year Statute of Limitations period. A Statute of Limitations refers to the period of time within which a plaintiff must bring a claim in court. If a plaintiff does not bring a claim in court before the Statute of Limitations period expires, then the lawsuit must be dismissed unless an exception applies. The purpose of a Statute of Limitation is to force a plaintiff to bring a claim within a reasonable time, so that the defendant will have timely notice of the claim. Statutes of limitation are designed to promote justice by preventing surprises through revival of claims that have been 10 10 of 20
allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. In this case, the parties have stipulated that the Statute of Limitations started to run no later than August 2004 when Mr. Nicholas Zoullas sold the Monet Painting to Naxos Art Inc. The parties also have stipulated that unless the doctrine of equitable estoppel applies which I will explain in a moment that the statute of limitations expired three years later in August 2007. Thus, unless equitable estoppel applies, the statute of limitations expired in August 2007, six years before plaintiff commenced this case, and you must find in favor of the defendant. Equitable estoppel is an extraordinary remedy, which if established, acts to prevent a defendant from raising the Statute of Limitations as a defense. To establish equitable estoppel, the plaintiff must show that he was induced by subsequent and specific acts of fraud, affirmative misrepresentations or deception to refrain from filing a timely action. Mere silence by the defendant is insufficient to invoke the doctrine of equitable estoppel. In addition, allegations of concealment are not sufficient unless the parties maintain what the law refers to as a fiduciary relationship. In this case, it is not disputed that that Mr. Nicholas Zoullas and Mr. Sophocles Zoullas did not have a fiduciary relationship during the relevant period of time. Accordingly, you must decide this case in favor of the defendant unless you find that the defendant made an affirmative misrepresentation to the plaintiff that reasonably caused the plaintiff to refrain from filing a lawsuit before August 2007. An affirmative misrepresentation is the making of a false statement of fact with an intent to deceive. The burden to establish equitable estoppel is on the plaintiff and it must be established by clear and convincing evidence. Clear and convincing evidence means evidence that satisfies you that there is a high degree of probability that Mr. Nicholas Zoullas made an affirmative 11 11 of 20
misrepresentation to the plaintiff that reasonably caused the plaintiff to refrain from filing a lawsuit before August 2007. In deciding whether plaintiff has met this burden of proof you must consider the evidence offered by each side. To decide in favor of the plaintiff, it is not enough to find that the preponderance of the evidence is in his favor. A party who must prove his or her case by a preponderance of the evidence need satisfy you only that the evidence supporting his or her case more nearly represents what actually happened than the evidence that is opposed to it. But a party who must establish his or her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he or she claims is what actually happened. In making this assessment, you should consider at least three points: First, that Plaintiff never pleaded in his Amended Complaint that Mr. Nicholas Zoullas made a material misrepresentation to him; second, that during discovery in this case, when asked in Interrogatory Questions and at his deposition, the Defendant never claimed that Mr. Nicholas Zoullas made an affirmative misrepresentation to him; and third, that counsel for the Plaintiff previously stated to this Court that Mr. Nicholas Zoullas never made a material misrepresentation to Plaintiff.] 7) Instruction re: Elements of a Gift If the Court Decides That English Law Applies Note: This Charge has been modeled on the principles set forth in the Affirmations of Henry Legge, QC. See NYSCEF Doc. No. 124 and NYSCEF Doc. No. 200. Proposed Instruction: This proceeding was brought by the plaintiff against the defendant to recover for the monetary value of a painting by Claude Monet, titled Sainte Adresse. Plaintiff claims that the property was given to him as a gift by his grandfather on November 28, 1995 by way of a letter from his grandfather. Assuming the Statute of Limitations does not otherwise bar the plaintiff s claim and assuming I instruct you that the law of England applies to the alleged gift of the painting, you must 12 12 of 20
answer the following question: Did plaintiff s grandfather make a valid gift of the painting to plaintiff under the law of England? Under English law, a valid gift requires a legal showing that: (1) the gift-giver had title to the item being gifted at the time of the claimed gift; (2) the gift-giver had a present intention to make an immediate gift of the property; and (3) delivery of the property to the recipient. In addition, a gift may be made subject to conditions by the gift-giver; in that case, the law requires a showing that the conditions imposed by the gift-giver have been fulfilled. Therefore, there are five issues for your consideration. The first requirement is title. Title to property means that one has ownership rights in certain specific property. Under English law, title to property can be either what the law refers to as (1) legal title or (2) equitable or beneficial title. Legal title means that one owns the actual property outright. Equitable or beneficial title means an interest in property that gives one the right to acquire formal legal title in the future. In this case, to have had legal or beneficial title to the painting at the time of the claimed gift, the plaintiff s grandfather would have had to have paid for the painting by that date. In other words, the plaintiff s grandfather could not have legal or beneficial title to the painting until, at the very earliest, the date that he paid for the painting. Therefore, the first question for your consideration is whether the plaintiff s grandfather had paid for the painting as of November 28, 1995, which is when the plaintiff claims his grandfather made a gift of the painting to him. If the plaintiff s grandfather had not paid for the painting by November 28, 1995, then his grandfather could not have made a gift of the painting to him on that date. 1 1 NOTE: As explained in the Reply Affirmation of Mr. Legge (and briefly in his moving affirmation), the concepts of equitable title and beneficial title do not apply in this case and cannot be invoked to establish a gift because, among other reasons, the plaintiff has admitted that he did not provide consideration for the claimed gift, because: under English law, an equitable interest cannot be transferred merely by delivery; one cannot gift future rights to property under English law; and no document exists that complies with Section 53(1)(c) of the Law of Property Act of 1925. 13 13 of 20
If you answer the first question Yes that the plaintiff s grandfather paid for the painting on or before November 28, 1995 then you must proceed to the second requirement, which is intent. Under English law, the gift-giver must have a present intention to make an immediate gift of the property. The intent to make a present gift must be shown because the law does not assume that a gift was made or intended. An intention to transfer the property at some future date is not enough. Therefore, the second question for your consideration is whether the plaintiff s grandfather intended to make a present and immediate transfer of the painting to the plaintiff on November 28, 1995. If you answer the second question Yes, you must proceed to the third requirement. The third requirement is delivery. Under English law, to make delivery of a gift, the giftgiver must cause a physical delivery of the property that unequivocally suggests that the gift-giver intended to forever part with possession of the item. If you find that the plaintiff s grandfather had access to the storage facility where the painting was located after the time of the claimed gift, you must find there has not been adequate delivery of the painting and you must answer this question No. If, however, you answer this question Yes, you must proceed to the fourth requirement. The fourth requirement is that any conditions to the gift be fulfilled. Because a gift-giver is free to impose conditions before a gift becomes effective, the law requires that any conditions imposed by the gift-giver be fulfilled. Therefore, the fourth question for your consideration is whether the plaintiff s grandfather made the gift subject to any conditions. If you answer the fourth question yes, you must proceed to decide the fifth question, namely whether the conditions to the gift were fulfilled. The burden of proof is on the plaintiff to prove by a balance of the probabilities that the evidence shows that a gift was made under the law of England. A balance of the probabilities 14 14 of 20
means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase balance of the probabilities of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for the plaintiff to prevail, the evidence that supports his claim must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a balance of the probabilities on either side, you must decide the question against the plaintiff. 8) Instruction re: Elements of a Gift under New York Law Modeled on PJI 7:65 Proposed Instruction: This proceeding was brought by the plaintiff against the defendant to recover for the monetary value of a painting by Claude Monet, titled Sainte Adresse. Plaintiff claims that the property was given to him as a gift by his grandfather on November 28, 1995 by way of a letter from his grandfather. Assuming the Statute of Limitations does not otherwise bar the plaintiff s claim and assuming I instruct you that New York law applies to the alleged gift of the painting, you must answer the following question: Did plaintiff s grandfather make a valid gift of the painting to plaintiff under New York law? Under New York law, a valid gift requires a legal showing that: (1) the gift-giver owned an interest in the subject matter of the gift and had the right to make a gift; (2) the gift-giver intended to make a present gift of the painting; and (3) delivery of the property to the recipient. In addition, a gift may be made subject to conditions by the gift-giver; in that case, the law requires a showing that the conditions imposed by the gift-giver have been fulfilled. Therefore, there are our issues for your consideration: 15 15 of 20
1) Did the plaintiff s grandfather own an interest in the painting on November 28, 1995 and have the right to make a gift of the Painting on that date? 2) Did the plaintiff s grandfather intend to make a present gift of the painting to plaintiff on November 28, 1995? 3) Did plaintiff s grandfather actually make delivery of the painting to plaintiff? 4) Did plaintiff s grandfather make the gift subject to any conditions and, if so, were those conditions fulfilled? The first requirement is ownership or rights in the subject matter of the gift. Because a gift-giver cannot make a gift of something that he or she does not own or have rights in, the law requires that a gift-giver own rights in the subject matter of a gift. The second requirement is intent. The intent to make a present gift must be shown because the law does not assume that a gift was made or intended. Intent to make a gift means a desire on the part of the owner of property to make a present transfer of ownership to another. An intention to transfer the property at some future date is not enough. The third requirement is delivery. Delivery means an actual transfer of possession, dominion and control of the property to the recipient. Such a transfer must be as complete as is reasonable, taking into consideration the nature of the property, the circumstances and the surroundings of the parties. The fourth requirement is that any conditions to the gift be fulfilled. Because a gift-giver is free to impose conditions before a gift becomes effective, the law requires that any conditions imposed by the gift-giver be fulfilled. The burden of proof is on the plaintiff to prove by clear and convincing evidence that a gift was made. Once again, clear and convincing evidence means evidence that satisfies you that there 16 16 of 20
is a high degree of probability that, at the time the plaintiff s grandfather delivered the letter dated November 28, 1995 to plaintiff, that plaintiff s grandfather owned the painting and intended to give immediate ownership to plaintiff by way of a gift. In deciding whether plaintiff has met this burden of proof you must consider the evidence offered by each side and in that process you may consider the fact that plaintiff s grandfather is dead and cannot testify. To decide in favor of plaintiff, it is not enough to find that the preponderance of the evidence is in his favor. A party who must prove his or her case by a preponderance of the evidence need satisfy you only that the evidence supporting his or her case more nearly represents what actually happened than the evidence that is opposed to it. But a party who must establish his or her case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he or she claims is what actually happened. You must answer the following five questions. The first question is: Did the plaintiff s grandfather own the painting or have rights in it on November 28, 1995? If, upon all the evidence, you are satisfied that it is highly probable that plaintiff s grandfather owned the painting or had rights in it on November 28, 1995, you will answer that question Yes. If you are not satisfied that it is highly probable that plaintiff s grandfather owned the painting or had rights in it on November 28, 1995, you will answer that question No. If you answer the first question yes, you must proceed to decide the second question: Did the plaintiff s grandfather intend to make a present gift of the painting to plaintiff on November 28, 1995? If, upon all the evidence, you are satisfied that it is highly probable that plaintiff s grandfather intended to make a present gift of the painting to him on November 28, 1995, as opposed to intending to make a gift at some time in the future, you will answer that 17 17 of 20
question Yes. If you are not satisfied that it is highly probable that plaintiff s grandfather intended to make a gift, you will answer the question No. If you answer the second question yes, you must proceed to decide the third question, namely whether the painting was delivered to plaintiff. If you are satisfied that it is highly probable that the painting was delivered to plaintiff in a manner appropriate under the circumstances, then you must answer this question Yes. If you are not satisfied that it is highly probable that the painting was delivered to plaintiff, then you must answer this question No. If you answer the third question yes, you must proceed to decide the fourth question, namely whether plaintiff s grandfather made the gift subject to any conditions. If you are satisfied that it is highly probable that plaintiff s grandfather made the gift without any conditions, then you must answer this question No. If you are not satisfied that it is highly probable that plaintiff s grandfather made the gift without any conditions, then you must answer this question Yes. If you answer the fourth question yes, you must proceed to decide the fifth question, namely whether the conditions to the gift were fulfilled. If you are satisfied that it is highly probable that the conditions were fulfilled, then you must answer this question Yes. If you are not satisfied that it is highly probable that the conditions were fulfilled, then you must answer this question No. 9) Proposed Instruction re: Compensatory Damages If you find by clear and convincing evidence that the plaintiff has established equitable estoppel and that his grandfather gifted the Painting to him, then you must assess the amount of actual damages to award to the plaintiff. Actual damages are damages that repay actual losses that the plaintiff has suffered. 18 18 of 20
In this case, the parties have stipulated that the plaintiff did not suffer more than $1.9 million in actual damages. In other words, the most you can award the plaintiff in actual damages is $1.9 million. That is because the parties have agreed that the value of the Monet Painting is $3.9 million, and the plaintiff already reached a settlement agreement with Naxos Art Inc. in October of 2015 regarding the Painting in which he received $1,612,500 in cash and a painting by the artist Juan Gris, which plaintiff claims was worth $387,500. Thus, in total, the plaintiff claims he already has received a total $2 million of the $3.9 million. On the other hand, the defendant claims that the Juan Gris painting was worth far more than $387,500, and that the plaintiff therefore already has received more than $2 million. Thus, to the extent you find that the Juan Gris painting was worth more than $387,500 as of October 2015, the additional amount that it was worth over $387,500 must be subtracted from the $1.9 million that the plaintiff claims he is owed. Thus, by way of example only, if you find that the Juan Gris Painting was worth $887,500 which is $500,000 more than the plaintiff claims then if you otherwise find that he has proved his case, the plaintiff would be entitled to $1.4 million, or $1.9 million minus $500,000. 10) Proposed Instruction re: Punitive Damages If you find by clear and convincing evidence that the plaintiff has established equitable estoppel and that his grandfather gifted the Painting to him, then you also must decide whether to award punitive damages to the plaintiff. Punitive damages are damages assessed to punish the wrongdoer, to make an example of the wrongdoer to others, and to deter others from engaging in similar blameworthy conduct in the future. The burden to establish punitive damages is on the plaintiff, and the plaintiff must establish, by a very high threshold, that the defendant is morally culpable, that the defendant intentionally or 19 19 of 20
recklessly engaged in conduct which manifests maliciousness or a conscious disregard of the plaintiff s rights, and that the defendant s conduct comes close to be criminal in nature. To the extent you decide that punitive damages are appropriate in this case based upon such extraordinary conduct by Nicholas Zoullas, the amount of the punitive damages awarded must have a reasonable relationship to the actual harm that you find the plaintiff has suffered. 20 20 of 20