S.A.R.L. Galerie Enrico Navarra et al v. Marlborough Gallery Inc.

Filing 186

OPINION AND AMENDED ORDER: For the foregoing reasons, Koutouzis's Motion for Summary Judgment and Marlborough and Levai's Motion for Summary Judgment are GRANTED. The Court vacates its March 31, 2017 Order. (Doc. No. 185). This opinion resolves Docket Nos. 142, 146, 173, and 176. The Clerk of Court is directed to close this case. All pending motions are moot. (Signed by Judge Kimba M. Wood on 4/5/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
4--5-11·
DATE FILED:

S.A.R.L. GALERIE ENRICO NAVARRA AND
ENRICO NAVARRA,
Plaintiffs,
v.
MARLBOROUGH GALLERY, INC.,
PHILIPPE KOUTOUZIS, and PIERRE LEV AI,

10-cv-7547 (KMW)

OPINION and
AMENDED ORDER

Defendants.

KIMBA M. WOOD, District Judge:
Plaintiffs S.A.R.L. Galerie Enrico Navarra and Enrico Navarra (collectively, "Plaintiffs")
filed the above-captioned lawsuit against Marlborough Gallery, Inc. ("Marlborough"),
Marlborough's director for Asia, Philippe Koutouzis ("Koutouzis), and Marlborough's president,
Pierre Levai ("Levai") (collectively, "Defendants") seeking damages for tortious interference
with contract, and aiding and abetting the same.
Currently before the Court is Koutouzis's motion for summary judgment (Doc. No. 142),
as well as Marlborough and Levai's joint motion for summary judgment (Doc. No. 146). For the
reasons set forth below, Koutouzis's motion for summary judgment, as well as Marlborough and
Levai's motion for summary judgment, are GRANTED. The Court vacates its Order dated
March 31, 2017. (Doc. No. 185).

I.

BACKGROUND

The parties appear to agree on few, if any, of the facts material to this dispute. The
following background represents the parties' version of the events based on their Rule 56.1
submissions and the record evidence; the Court endeavors to note where a fact is disputed.
A. The Production Agreement between Navarra and Mr. Chu

In 2003, the Chinese-born French artist Chu Teh-Chun ("Mr. Chu") entered into a
production agreement (the "Production Agreement") with the S.A.R.L. Galerie Enrico Navarra
(the "Navarra Gallery"), and the ceramics factory La Tuilerie, to produce ceramic plates.
(Rosberger Dec. Ex. G). Under the Production Agreement, La Tuilerie was to reproduce 24 of
Mr. Chu' s original designs into limited editions, for a total of 1, 152 ceramic plates (the "Plates").
Mr. Chu hand-painted each of the 24 original designs. (Pls. 56.1 if 18, Defs.' 56.l if 18). The
1,152 Plates were to be divided among Mr. Chu, La Tuilerie, and the Navarra Gallery, to be
exhibited and sold; Mr. Chu retained ownership of the 24 originals. La Tuilerie was scheduled to
produce 240 Plates a year. The Navarra Gallery agreed to pay Mr. Chu a 14% royalty on Plates it
sold, based on a minimum agreed-upon price, three times a year.
Before any of the 24 original plates could be reproduced into editions of 40 Plates, Mr.
Chu needed to give his "bans atirer," which is French for "okay to print"-his approval of the
original Plates, that are then ready to be reproduced.
B. Agreement between Marlborough Gallery and Mr. Chu

On July 23, 2007, Mr. Chu signed an agreement with the Marlborough Gallery and
Sevres, a porcelain factory, to produce 57 hand-painted ceramic vases (the "Vases"). Mr. Chu
painted on each of the Vases produced by Sevres. (Pis. 56.1 ~ 42, Defs.' 56. l if 42). Plaintiffs
2

first learned of the existence of the Vases from a magazine article in September of 2008. (Defs.'
56. l

~

47).

C. Alleged Bad Faith Acts
Plaintiffs allege in the Amended Complaint that Defendants tortiously interfered with the
Production Agreement by causing or encouraging Mr. Chu to violate that Agreement. Plaintiffs
claim they suffered financial, reputational, and emotional damage as a result. (Amended
Complaint~

82).

During this time, Plaintiffs allege, Defendants engaged in a campaign with Mr. Chu to
discredit the Plates. (Defs.' 56. l

~

50). This campaign included four significant actions by Mr.

Chu, described more fully below: sending a cease and desist letter, filing a lawsuit, sending an
email to the Christie's auction house in Hong Kong, and publishing an advertisement in a
widely-read arts journal. Defendants do not contest that the events took place; rather, Defendants
deny that they had any involvement in them.
First, Plaintiffs allege the following regarding the cease and desist letter: Defendant
Koutouzis introduced Mr. Chu to William Bourdon, Koutouzis's friend, and, at times, his
lawyer. (Defs.' 56.1

~

55; Wallison Aff., Ex. 22 (Bourdon Tr. 54: 15-23)). Bourdon sent

Plaintiffs a cease and desist letter on or about February 19, 2007 (the "Cease and Desist Letter").
The Cease and Desist Letter states that the Navarra Gallery failed to pay Mr. Chu for the year
2006, failed to submit all the bans atirer, and failed to produce a minimum number of 240 Plates
each year. In the Cease and Desist Letter, Mr. Bourdon asks the Navarra Gallery to cease
producing the Plates, cancel current and future exhibitions, and return the Plates that were not yet
sold. (Rosberger Deel. Ex. H).
3

The parties dispute whether or not Defendants played any role in sending the Cease and
Desist Letter. (Pis. 56. l ~ 60, Defs.' 56.1 ~ 60). They disagree on whether Mr. Chu had
legitimate concerns over the Navarra Gallery's performance under the Agreement, and whether
Koutouzis introduced Bourdon to Mr. Chu in order to interfere with the Agreement. (Pis.' 56.l
~~

363-64).
Second, in April of 2007, Bourdon's law firm filed a lawsuit against the Navarra Gallery

in France (the "French Lawsuit"), on behalf of Mr. Chu, alleging the Gallery's failure to perform
its obligations under the Production Agreement. (Amended

Complaint~

71). The lawsuit made

allegations similar to those stated in the Cease and Desist Letter, and sought judicial termination
of the Production Agreement and damages for Plaintiffs' alleged breach. (Id.; Defs.'

56.1~54).

The Navarra Gallery responded to the French Lawsuit, arguing that it was frivolous, because the
Gallery had complied with its obligations under the Production Agreement. The District Court of
Paris issued a decision on March 30, 2012, holding that the Navarra Gallery was not at fault for
its delay in paying royalties, in light of to Mr. Chu's eight-month delay in creating the artwork
for the Plates.
Third, on May 16, 2008, Bourdon sent an email to the Hong Kong Christie's auction
house (the "Christie's Email"), informing Christie's of the ongoing legal proceedings against
Navarra. The Christie's Email claimed that certain plates were unauthorized, or perhaps
inauthentic, 1 and demanded the removal of the 12 plates set to be auctioned on May 25, 2008.
Christie's canceled the sale of the Plates. Defendants deny any involvement in prompting

1

The Navarra Gallery contends that the Plates' authenticity was not in question, because each Plate appears to have
a bon-a-ttrer on the back. Defendants dispute who inscribed that label.
4

Bourdon to send the Christie's Email. (Defs.' 56.1if68).
Finally, from October 3 through 16, 2008, an advertisement appeared in Le Journal des
Arts, a trade publication for the European art world, questioning the authenticity of the Plates
(the "Journal Ad"). 2 Entitled "Warning from M. Chu Teh-Chun," the Journal Ad alerts readers to
the French Lawsuit and the withdrawal of the Plates from Christie's in Hong Kong, due to a
question of authenticity. (Pls.' 56.1

i' 290). The Journal Ad also warns any owners or sellers of

the Plates to be suspicious of their authenticity. (Id.). Navarra described the effect of the Journal
Ad as "disastrous," and stated that it rendered the Plates "unsalable." (Navarra Tr. 230:5-8;
Amended Complaint ifif 109, 117).
In the French Lawsuit, Plaintiffs brought counterclaims against Mr. Chu for
disparagement, based on the Christie's Email and the Journal Ad. The District Court of Paris
denied these counterclaims in its March 30, 2012 decision, and held that Plaintiffs had not shown
a campaign of disparagement. (Rosberger Dec. Ex. Z). The Plaintiffs appealed the decision. The
Court of Appeals of Paris affirmed the lower court's decision, and held, in part, that Mr. Chu
could not be accused of disparagement; therefore, the disparagement claim was rightfully
dismissed. (Id. Ex. BB).
In January of 2009, Mr. Chu suffered a stroke, and became unable to communicate. He
died on March 26, 2014.
D. Procedural History
On October 4, 20 l 0, Plaintiffs filed a Complaint in this Court against Marlborough

Mr. Chu's son purchased the ad, which Bourdon's firm and Mr. Chu drafted. (Amended Complaint~ 100; Defs.'
56.1 ~ 68).
5

2

Gallery, claiming attempted monopolization, false advertising and trade disparagement,
defamation, product disparagement, and tortious interference with contract. 3 The Complaint was
dismissed on June 21, 2011, for failure to state a claim of monopolization under the Sherman
Act, failure to state a claim of false advertising and trade disparagement under the Lanham Act,
and failure allege wrongdoing sufficient to support the ten claims under state law. Navarra v.
Marlborough Gallery, Inc., 820 F. Supp. 2d 477 (S.D.N.Y. 2011) (Jones, J.). The Court held that

Plaintiffs had not pied a false statement or any wrongdoing by Marlborough to sustain a claim of
defamation or product disparagement. The Court also held that Plaintiffs had not pied an
underlying tort to sustain a claim of tortious interference with contract. Id. at 489.
On April I 8, 20 I 2, Plaintiffs filed the Amended Complaint in this action against
Marlborough and also Koutouzis and Levai, (see Doc. 30), alleging (1) common law tortious
interference with contract, and (2) aiding and abetting tortious interference with contract.
Koutouzis argued that the claims were time-barred, and contested being added to the Amended
Complaint. The Marlborough Gallery and Levai moved for a Judgment on the Pleadings,
incorporating the arguments Koutouzis made in his Motion to Dismiss. On March 26, 2013,
Koutouzis's Motion to Dismiss and Marlborough and Levai's Motion for Judgment on the
Pleadings were denied. Navarra v. Marlborough Gallery, Inc., 2013 WL 1234937 (S.D.N.Y.
Mar. 26, 2013) (Wood, J.).
On April 9, 2013, Koutouzis filed a Motion for Reconsideration, or in the alternative,
permission to file an interlocutory appeal. (Doc. 59). On October 18, 2013, this Court denied the

Plaintiffs also alleged causes of action for conspiracy to commit defamation, tortious interference with contract,
and product disparagement, as well as aiding and abetting defamation and product disparagement.
6
3

Motion for Reconsideration, underscoring its reasoning in the Motion to Dismiss, and denied
permission to file an interlocutory appeal. Navarra v. Marlborough Gallery, Inc., 2013 WL
5677045 (S.D.N.Y. Oct. 18, 2013) (Wood, J.).
Presently before the Court are two motions for summary judgment. Koutouzis's motion is
GRANTED, and Marlborough Gallery and Levai's motion is GRANTED, as well.

II.

LEGAL STANDARD
Summary judgment is appropriate where the materials in the record demonstrate that

there is "no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden lies with the moving party to
establish that no genuine issue of material fact exists. Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir. 2003). When reviewing the record and considering a motion for summary
judgment, the Court must "construe the evidence in the light most favorable to the nonmoving
party," drawing reasonable inferences in its favor. Jeffreys v. City of NY, 426 F.3d 549, 553 (2d
Cir. 2005); Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006).
Once the moving party has carried its burden, the nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the material facts" to defeat a finding of
summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, the nonmoving party must also demonstrate "significant probative evidence" that
a reasonable factfinder could use to decide in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). If the nonmoving party's evidence is "insufficient to establish an essential
element of the nonmoving party's claim," the Court should grant summary judgment. Celotex
Corp. v. Catrett, 477 U.S. 317, 331 (1986).
7

A fact issue is genuine if a "reasonable jury could return a verdict for the nonmoving
party." Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248);

Bruce Lee Enterprises, LLC v. A. VE.LA., Inc., 2013 WL 822173, at *10 (S.D.N.Y. Mar. 6,
2013) (Wood, J.); see also Fed. R. Civ. P. 56(e). The Court's role is not to weigh the evidence or
determine its truth, but instead determine whether there remain any genuine issues for trial.

Virgin At/. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 262 (2d Cir. 2001).

III.

KOUTOUZIS'S MOTION FOR SUMMARY JUDGMENT
Koutouzis has moved for summary judgment claiming, as he did in his Motion to

Dismiss, that Plaintiffs' claims are time-barred, as the claims in the Amended Complaint adding
Koutouzis as a defendant cannot relate back to the Original Complaint.
A. Navarra's Letters from 2010 Preclude the Amended Complaint
from Relating Back
Koutouzis argues, as he did in his Motion for Reconsideration, that Plaintiffs could not
have been mistaken about Koutouzis's involvement in the alleged scheme to induce Mr. Chu to
breach the Production Agreement. In the opinion denying Koutouzis's Motion for
Reconsideration, this Court rejected this argument and reaffirmed the decision to allow the
claims to relate back to the Amended Complaint, following the Supreme Court's precedent in

Krupski. Navarra, 2013 WL 5677045, at *3 (quoting Krupski v. Costa Crociere S. p. A., 130 S.
Ct. 2485 (2010)). Under Rule 15(c)(l)(C) of the Federal Rules of Civil Procedure, an amended
complaint may relate back to date of the original complaint ifthere was "a mistake concerning
the proper party's identity." Plaintiffs claimed that they were mistaken in understanding the
Defendants' involvement in the alleged scheme, and this Court held that the Plaintiffs'
8

misunderstanding qualified as a "mistake" under Rule 15, therefore allowing the claims to relate
back. Navarra, 2013 WL 1234937, at *6.
In his Motion for Reconsideration, Koutouzis cited, for the first time, letters that Navarra
sent to Koutouzis in 2010, to rebut Plaintiffs' claim of"mistake" under Rule 15. He argued that
these letters reflect Navarra' s belief that Koutouzis was involved, before Plaintiffs filed their
Original Complaint. This Court noted that Koutouzis's argument was "inappropriate to address
in the first instance on reconsideration of a motion to dismiss," but welcomed Koutouzis to use
the 2010 letters at summary judgment, or at trial. Navarra, 2013 WL 5677045, at *2-*3. The
Court will now address these letters.
On January 19, 2010, Enrico Navarra wrote to Philippe Koutouzis, at the Marlborough
Gallery, addressing Koutouzis in his individual capacity. 4 Navarra wrote:
You demonstrated your interest in the Navarra gallery's commissioning of
ceramics by personally following the different stages of the unreasonable quarrel
Mr. Chu Teh Chun sought with us.
You received real-time information from Mr. Yvon Chu, the artist's son, namely,
through the document he conveyed to you on October 5, 2007. As a professional
in the art world, you are therefore aware of the existence of 24 ceramic objects
numbered Fl to F24 ....
Calling into question the authenticity of ceramics commissioned by the Navarra
gallery was therefore not reasonable.
Nevertheless it has emerged that, on several occasions, you have told different
stakeholders that the Navarra gallery had produced fake works.
4

Although Navarra claims that at the time he sued Marlborough, he did not have enough information regarding
Koutouzis's personal involvement in the wrongful acts alleged in the Original Complaint, the wording ofNavarra's
January 19, 2010 letter to Koutouzis belies that contention. Navarra's letter states, "[G]iven your role as a special
assistant" at the Guimet Museum in Paris, "you were even authorized to issue press releases ... in the museum's
name." (Miodonka Dec. Ex. 7 at I). Navarra's letter also asked, "Could you inform us whether you or the
Marlborough Gallery of New York has an establishment or even an office in France?" (Id at 3) (emphasis added).
9

(Miodonka Dec. Ex. 7 at 3).
On May 27, 2010, Navarra wrote to "Marlborough Gallery, For the attention of the
Director for Asia, Mr. Philippe Koutouzis," stating:
Thanks to the documents and works which we have discovered recently, we have
managed to fill in gaps in the story of Marlborough Gallery New York's
involvement, with your assistance and that of Mr. Jean-Paul Desroches, in its
constant preying on the edition of ceramics produced by the Navarra Gallery,
going as far as the organization of a smear campaign, in which you are playing a
role that is more than significant.
[I]t seems that Mr. Chu Teh-Chun was convinced that it would be expedient not
to let the edition[s of Plates] decorated by the artist and financed by the Navarra
Gallery coexist with the project you had "prepared" for him and which was to be
carried out at Manufacture de Sevres ....
Indeed, since 02/2007, Maltre William Bourdon has acted on behalf of the artist
to eliminate the "Navarra edition" and, in response to our strongest protests and
justifications, took legal action, of which you were kept informed in real time by
Mr. Yvon Chu.
(Miodonka Dec. Ex. 8 at 5).
These letters directly refute Navarra's claim that he was mistaken about Koutouzis's
involvement, independent of Marlborough, in the alleged scheme to "question the authenticity of
ceramics commissioned by the Navarra [G]allery." (Miodonka Dec. Ex. 7 at 3; Pls.' Opp'n to
Koutouzis MSJ at 10). Navarra's accusations do not support his claim that he "harbor[ed] a
misunderstanding about [Koutouzis's] status or role in the events giving rise to the claim at
issue." Krupski, 560 U.S. at 549. Nor do the accusations support Navarra's statement that he did
not know he "had a grievance with Mr. Koutouzis independent of [his] grievance with
Marlborough." (Opp 'n to Koutouzis MSJ at I 0).
In sum, Plaintiffs do not meet their burden of establishing a "mistake" under Rule
10

15(c )(I )(C), which would allow the Amended Complaint to relate back to the Original
Complaint, and thus Plaintiffs' claims against Koutouzis are time-barred. See Navarra, 2013 WL
5677045, at *3. Accordingly, Koutouzis's motion for summary judgment is GRANTED.

IV.

MARLBOROUGH AND LEVAl'S MOTION FOR SUMMARY
JUDGMENT
The Court grants Marlborough and Levai's Motion for Summary Judgment, because

Plaintiffs have not offered any evidence that Marlborough or Levai deliberately induced a breach
of the Production Agreement, and thus Plaintiffs' claims against Marlborough and Levai for
tortious interference with contract and aiding and abetting tortious interference with contract fail
as a matter of law.
A. Tortious Interference with Contract

To prove that Marlborough and/or Levai tortiously interfered with a contract, Plaintiffs
must show: (I) the Navarra Gallery has rights under a valid contract with Mr. Chu; (2)
Marlborough and Levai knew about the contract; (3) Marlborough and Levai acted deliberately
in inducing Mr. Chu to breach the agreement, or were substantially certain that their actions
would induce a breach; (4) Mr. Chu breached; (5) Mr. Chu would not have breached but for
Marlborough and Levai's conduct; and (6) Plaintiffs sustained damages, as a result. Aiding and
abetting tortious interference with contract requires evidence of "substantial assistance" to the
tortfeasors. P. Kaufmann, Inc. v. Americraft Fabrics, Inc., 232 F. Supp. 2d 220, 224 (S.D.N.Y.
2002). With respect to the claim against Marlborough and Levai, Plaintiffs have failed to offer
evidence that they deliberately induced a breach. Thus, Plaintiffs fail to state a claim against
Marlborough and Levai for tortious interference with contract.
11

B. Plaintiffs' Proof of Deliberate Inducement
Plaintiffs present four disjointed pieces of evidence to claim that Marlborough and Levai
deliberately maligned the Navarra Gallery and discredited the Plates; Plaintiffs allege that
Marlborough and Levai's actions caused Mr. Chu to breach his contract with the Navarra Gallery
in two ways: (1) by inducing Mr. Chu to publicly deny the authenticity of the Plates, and (2) by
inducing Mr. Chu to contract with Marlborough to create and sell the Vases, which Plaintiffs
contend violates certain exclusivity restrictions in the Production Agreement. 5 These actions
allegedly rendered the Plates valueless. Plaintiffs claim that they suffered financial and
reputational damages as a result of this campaign. (Amended Complaint if 117, 123).
The four pieces of evidence, described more fully below, are: (1) an email from
Koutouzis to Levai, in which Koutouzis says that he referred Mr. Chu to Bourdon, Koutouzis's
friend and lawyer; (2) the fact that an undated draft of the Cease and Desist Letter was found in
Marlborough's files; (3) the fact that Koutouzis was copied on an email from Mr. Chu's son to
Bourdon; and (4) a list of phone calls among Koutouzis, Bourdon, and Mr. Chu's family.
First, Plaintiffs cite an email from Koutouzis to Levai, in which Koutouzis states that he
looked at the Production Agreement, noticed a potential "flaw" in that Agreement, and referred
Mr. Chu to Bourdon. (Wallison Aff. Ex. 13). Plaintiffs contend that this is evidence of
Defendants' plan to tortiously interfere with the Production Agreement. Plaintiffs claim that

5
Plaintiffs have changed their theory as to how Defendants tortiously interfered with the Production Agreement.
(See Marlborough and Levai Reply at 9-10). In the Amended Complaint, Plaintiffs argued that the Defendants'
scheme was to discredit the Plates, to bolster the market for the Vases. Plaintiffs failed to allege that Mr. Chu
breached the Production Agreement, which is required to satisfy the elements of a tortious interference with contract
claim. Now, in the Opposition to Marlborough and Levai's Motion for Summary Judgment, Plaintiffs claim that the
Defendants' plan was to purchase and resell all of the Plates. They argue that this caused Mr. Chu to breach the
underlying Production Agreement, when he caused the Christie's Email to be sent.

12

Koutouzis recruited Bourdon, who authored the Cease and Desist Letter, filed the French
Lawsuit, authored the Christie's Email, and authored the Journal Ad. However, the mere
introduction to a lawyer, after having noticed a potential "flaw" in the Production Agreement,
does not suffice to show that Marlborough and Levai enlisted Bourdon to instigate their
campaign against the Navarra Gallery.
Second, Plaintiffs found an annotated draft of the Cease and Desist Letter in
Marlborough's files, without a date. 6 This has little, if any, probative value.
Third, Plaintiffs found one email that they contend supports their claim that Defendants
were behind the effort to breach the Production Agreement: Mr. Chu's son copied Koutouzis on
an email to Bourdon, attaching images of the 24 creations used to create the Plates. (Ros berger
Dec. Ex. FF). 7 The email contains no text supporting Plaintiffs' claim.
Fourth and finally, Plaintiffs point to Koutouzis's phone records, which Plaintiffs claim
show a pattern of calls among Koutouzis, Bourdon, and Mr. Chu's son. Plaintiffs argue that the
"sequence and timing of calls" are suspicious, because Koutouzis called Bourdon often before or
after he called Mr. Chu's son. These calls are contemporaneous with the Cease and Desist Letter,
the French Lawsuit, and the Journal Ad. (Opp'n to Marlborough and Levai at 9-11). 8 The fact
that Koutouzis was in frequent contact with both Bourdon and Mr. Chu' s family does not suggest

6

Defendants point out the possibility that they received the document "long after it was sent or even after the
commencement of this action." (Levai Aff. iii! 16-19).
7
Plaintiffs allege that Mr. Chu's son, Bourdon, and Koutouzis did not produce their emails in full, but never
objected to that production.
8
In his deposition, Bourdon states that he met with Mr. Chu only in the company of Mr. Chu's sons or wife; that no
third party ever paid for his representation of Mr. Chu; and that he never discussed with Defendants his
representation of Mr. Chu, whom Bourdon found to be perfectly competent. "[A]s a lawyer who's been practising
[sic] for 35 years, [if] I had let a third party intervene in the handling of a case, that would have been against my
professional oath and/or my obligations." (Bourdon Tr. 17:21-24 ).
13

that the Marlborough Gallery, Levai, and Koutouzis were behind the campaign to induce a
breach.
This circumstantial evidence, taken as a whole, fails to provide sufficient support for the
inference that Marlborough and Levai either knew that their actions were certain, or substantially
certain, to induce a breach, or that they acted with the primary purpose of inducing a breach. See
Union Carbide Corp. v. Montell NV, 944 F.Supp. 1119, 1137 (S.D.N.Y.1996) (Scheindlin, J.)

(quoting the Restatement (Second) of Torts§ 766, commentj (1979)); see also High Falls
Brewing Co., LLC v. Boston Beer Corp., 852 F. Supp. 2d 306, 311-12 (W .D .N. Y. 2011)

(Siragusa, J.).
Plaintiffs contend that all that is required to prove deliberate inducement is to show either
that Defendants had advised Mr. Chu "on how to attack the authenticity of the Plates," or
alternatively, "offered him a more attractive deal for selling the Plates." (Id. at 16). 9 Plaintiffs
are wrong. The evidence they cite does not render plausible Plaintiffs' claim that Marlborough or
Levai instructed Mr. Chu on how to attack the authenticity of the Plates. None of the evidence
explains why Marlborough or Levai would help discredit the Plates if they wished to offer Mr.
Chu a more attractive deal.
These disjointed pieces of evidence-Koutouzis introducing Bourdon to Mr. Chu, the a
draft of the Cease and Desist Letter found in Marlborough's files, an email to Bourdon copying
Koutouzis, and the various documentations of Koutouzis's communications with Bourdon and
Mr. Chu's family-are not sufficient to support a claim that Marlborough and Levai tortiously
9

Plaintiffs have not presented evidence that Marlborough offered Mr. Chu a "more attractive deal" on the Plates;
Plaintiffs merely speculate that Marlborough was interested in the Plates. (Opp'n to Marlborough and Levai MSJ at
4-7).
14

interfered with Plaintiffs' Production Agreement. As the Supreme Court has held: "if the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted." Azurite Corp. v. Amster & Co., 52 F .3d 15, 19 (2d Cir. 1995) (quoting Anderson, 4 77
U.S. at 249-50) (citations omitted).
For the reasons stated above, Plaintiffs' claims against Marlborough and Levai for
tortious interference with contract and aiding and abetting tortious interference with contract fail,
as a matter of law.
IV. CONCLUSION
For the foregoing reasons, Koutouzis's Motion for Summary Judgment and Marlborough
and Levai's Motion for Summary Judgment are GRANTED.
The Court vacates its March 31, 2017 Order. (Doc. No. 185). This opinion resolves
Docket Nos. 142, 146, 173, and 176. The Clerk of Court is directed to close this case. All
pending motions are moot.
SO ORDERED.
Dated: New York, New York
April 5, 2017
THE HON. KIMBA M. WOOD
United States District Judge

15