Safflane Holdings Ltd. et al v. Gagosian Gallery, Inc.

Filing 19

FIRST AMENDED COMPLAINT against Gagosian Gallery, Inc. with JURY DEMAND. Document filed by Safflane Holdings Ltd., Robert Wylde. (ft) (ama). Modified on 6/13/2011 (ama).

AARON RICHARD GOLUB, ESQUIRE, PC
Attorneys for Plaintiffs
34 East 67th Street _3rd Floor
New York, New York 10065
ph: 212-838-4811
fx: 212-838-4869
ARG 6056
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
______________________________________X
SAFFLANE HOLDINGS
ROBERT WYLDE,

LTD., and
FIRST AMENDED

COMPLAINT

(Jury Trial Demanded)
Plaintiffs,
-againstGAGOSIAN

GALLERY,

INC.

Defendant.
______________________________________ X

Plaintiffs
"Plaintiff
Wylde"),

Safflane")

SAFFLANE

HOLDINGS

LTD.

and ROBERT WYLDE

by their attorney,

and for their First Amended

("Wylde" and/or

AARON RICHARD
Complaint,

("Safflane"

GOLUB,

allege

and/or
Plaintiff

ESQUIRE,

PC, as

as follows:

THE PARTIES
1.
organized

under
2.

Kingdom

Plaintiff

is a corporation

the laws of the Republic
Plaintiff

of Great Britain
3.

Safflane

Wylde

of Cyprus

is a citizen

and Northern

duly
("Cyprus").

of the United

Ireland.

Defendant

Gagosian Gallery, Inc. ("Defendant" and/or

"GG") is a domestic business corporation

organized

-1-

under the laws

of the State of New York, and maintains

its principal

office and

place of business at 980 Madison Avenue, New York, New York 10075.
JURISDICTION
4.
original

This is a civil action

jurisdiction

under

1332(a) (2) i the diversity
diversity

thousand

dollars

Plaintiff

Safflane

exceeds

to

the sum or

($75,000.00),

is a corporation

under the laws of Cyprus,

maintains

its principal

Plaintiff

Wylde

exclusive

and Northern

herein.

Plaintiffs

relationships

Ireland
assert

Cyprus.

of the united Kingdom

of Great

and is an individual

Plaintiff

claims arising

The First Amended

Complaint

in excess of Six Million
of interest

five thousand

dollars
Venue

Dollars

and costs.

is in excess

7.

in Nicosia,

from contractual

with Defendant.

6.

controversy

duly

is a citizen of Cyprus and

place of business

is a citizen

Britain

U.S.C.

Complete

all proper parties

in controversy

organized

exclusive

statute.

and costs.

5.

damages

of 28 U.S.C. §

the provisions

exists between

this action and the amount
value of seventy-five

over which this Court has

jurisdiction

of citizenship

of interest

AND VENUE

seeks compensatory
($6,000,000.00),

Accordingly,

of the statutory

the amount

minimum

in

of seventy-

($75,000.00).
is proper

§ 1392(a) (1) and

in this District

(2), because

-2-

pursuant

(a) Defendant

to 28

resides

in

this District
omissions

and

giving

(b) a substantial

portion

rise to Plaintiffs'

claims

of the events and
occurred

in this

District.
FACTUAL BACKGROUND
8.
prejudice
asserted
Holdings,

to Plaintiffs'

Ltd.,

available

to be asserted

inconsistent

and to be

of Art, et. al. v. Safflane
("Met v. Safflane
herein,

such

in the Met v. Safflane

action

with the claims herein or may be

in the alternative.

The Defendant, and the World Renowned
Mark Tansey and Richard Prince
9.

Gagosian

are made without

Due to the facts and circumstances

may be, perforce,

A.

Museum

et. al., 11-cv-3143-DLC

and defenses

asserted

herein

claims and defenses

in The Metropolitan

action").
claims

Any and all allegations

Defendant,

("Gagosian"),

contemporary
galleries

established

is reputedly

art galleries

managed

world-renowned
represented

by Gagosian.

the world-renowned

G.

one of the most important

Defendant

artist Mark Tansey

since approximately

in 1979 by Lawrence

in the world and maintains

in New York City.l

principally

Artists

is wholly owned and is

Defendant

has represented

("Tansey")

artist

three art

since 2004 and has

Richard

2005 on a non-exclusive

the

Prince

("Prince")

basis and, upon

Defendant maintains ten gallery locations throughout the world
at these locations: New York City (three locations) i Beverly
Hills; London (two locations); Rome; Athens; Paris; Geneva; and

1

Hong Kong.
-3-

information

and belief,

commencing

in 2008, on an exclusive

basis.
10.

Tansey was born in 1949 in San Jose, California.

He is an American
monochromatic
hidden

postmodern

painter

works and elaborate

paintings

text, images and symbols.

for millions

of dollars

best known for

Tansey's

privately

incorporating
works of art sell

and at auction.

Defendant

is, or ought to be, or should have been,

familiar with every

business

works necessary

and creative

effectively
Defendant
Tansey

represent

aspect

of Tansey's

him as his gallerist;

to

otherwise,

would not have been able to successfully

represent

since 2004.
11.

Panama,

Prince was born in 1949 in the Republic

is an American

predominantly

artist who bases his artistic

on the work of other artists

"appropriation

art."

of dollars privately

Prince's

creative
represent

aspect

familiar

of Prince's

and calls it

Defendant

have been able to successfully

otherwise,
represent

-4-

is, or ought to

with every business

works necessary

him as his gallerist;

work

works of art sell for millions

and at auction.

be, or should have been,

of

and

to effectively
Defendant

Prince

would not

since 2005.

TANSEY
B.

FACTS

The Sale of Tansey's "The Innocent
To Plaintiff Safflane By Defendant
12.

Good

Eye Test"

(1981)

In or about late July, 2009, Defendant,

("JG"), one of Defendant's

salespersons,

offered

representative

Painting")

described,

July 31, 2009

most senior and experienced

for sale to Plaintiff

authorized

by John

Wylde,

a painting

2

Safflane

by its

(the "Tansey

inter alia, in the sales invoice dated

(the "Tansey Invoice"),

as follows:

MARK TANSEY
The Innocent Eye Test, 1981
Oil on canvas
78 x 120 inches
198.1 x 304.8cm
(TANSE 1981.0001)
13.
without

the express

including
Painting

No sale of art was or is made by Defendant
and supervision

the sales of the Tansey Painting
(as hereinafter

significant

the following:

on several

commencing

substantial

of Gagosian,

and the Prince

in which Gagosian

made all

decisions.

In 2004, a special

the parties based

(purchasing

referenced)

and final business

14.

numerous

authority

relationship

factors,

including,

in 2004, Plaintiffs

transactions

commenced

nine works of art, including,

inter alia,

engaged

with Defendant

between

in

through JG

inter alia, one other

All references to Plaintiff Safflane herein, with respect to
the Tansey Painting, refer to wylde acting on Plaintiff

2

-5-

Tansey painting,
actively

for a total of $5,100,000.00);

collected

represented

the works of Tansey,

by Defendant

sold on the primary

who was exclusively

and whose paintings

market

Plaintiffs

were marketed

through Defendant;

Defendant,

its part, specifically

art collections;

for

sought works of art to improve and

complement

and

written

Plaintiffs'

appraisals

insurance

on Plaintiffs'

artworks

rendered

for Plaintiffs'

company.
15.

including

Between

in New York, orally
expressly

on or about July 20, 2009 to and

the date Plaintiff

2009, JG represented,

e-mail,

and Defendant

and/or

Safflane

assured

and warranted

and in writing,

impliedly,

was invoiced on July 31,
to Plaintiff

Wylde

in sum and/or substance,

by telephone,

in person

and/or by

the following:
i.

That Defendant could convey good and unencumbered
title to the Tansey Painting to Plaintiff
Safflane;

ii.

That Charles Cowles ("CC"), a well-known New York
City art dealer, was rightfully in possession of
the Tansey Painting;

iii. That prior to CC's having taken possession of the
Tansey Painting, such work had been located and
exhibited at the The Metropolitan Museum of Art
(the "Met") located at 1000 Fifth Avenue, New
York City and that the Tansey Painting had been
properly returned to CC by the Met;
iv.

Safflane's

That CC had advised JG that CC had had a
disagreement, described to Plaintiff Safflane
JG as a spat, with the Met's new director

behalf.
-6-

by

(allegedly Gary Tinterow, who replaced the
deceased renowned curator William Lieberman as
the Chairman of the Met's Department of
Nineteenth Century, Modern and Contemporary Art),
and as a result the Tansey Painting was no longer
going to be exhibited at the Met;
v.

That CC asked for the Tansey Painting to be
returned to CC's possession and control.
The Met
complied and it was then evidently owned by CC.
On July 28, 2009, three days prior to the
purchase of the Tansey Painting, JG was
questioned by Plaintiff Safflane in a series of
e-mails,3 as follows:
"On 28 Jul 2009, at 16:36, John Good
wrote:
Curator of 20th century art; now retired
and replaced by Gary Tinterow.
____________________ -7[JG's response to Wylde]
-----original Message----From: Wylde Robert
(mailto:robert-wylde.net)
Sent: Tuesday, July 28, 2009 4:35 PM
To: John Good
Subject: Re: promised gift of charles
cowles in honour of wiliam s
Lieberman
in honour of Wiliam S. Lieberman .....who
is was he?
_____________________ -7[Wylde's e-mail to JG]
On 28 Ju12009,

at 16:32, John Good wrote:

Saw the listing for the loft but was
there seomthing [sic] else about the
promised gift?
_____________________ -7[JG's response

to Wylde]

3 The text of the e-mail exchange is being reproduced verbatim
and should be read in reverse chronological order from Monday,
July 27, 2009 to Tuesday, July 28, 2009. Plaintiffs have
provided explanatory text concerning the identity of the sender
and recipient of each e-mail in the e-mail chain.
-7-

-----Original Message----From: Wylde Robert
rmailto:robert-wylde.net)
Sent: Monday, July 27, 2009 3:38 PM
to: John Good
Subject: promised gift of charles clowes
in honour of wiliam s
lieberman

http://www.google.com/url?Sa=t&source=web&oi=video
result&ct=res&cd=2&ur
1=http%3A%2F%2Frealestate.nytimes.com%2FSales%2F
detail
%2F2331-0084%2F84Mercer-Street-New-YorkNY_10012&ei=ZQFuSqnzMo_QlAfFlbS1Ag&Usg=AFQjCNFUw1
BXj167EII06n7M2AI_WX05mw&sig2=iib4z9Sc8S0Aauokqqh28g"
___________________
-7 [Wylde's e-mail to JG] i and
vi.

16.
Plaintiff

That JG, in replying to the foregoing e-mail
exchange, recklessly implied, if not expressed,
that there was no title issue with respect to the
promised gift, that the Tansey Painting could be
freely sold and title could legally pass to
Plaintiff Safflane. JG omitted to state that GG
had not performed proper due diligence with
respect to the Tansey Painting and specifically
with respect to Plaintiff's e-mail questions
concerning uthe promised gift."
JG repeatedly

Wylde:

(i) the excellent

exhibition

history

previously

been exhibited

prestigious

museums

of the Tansey

secondary

Painting,

which includes

e.g., that it had

at the Met, one of the most

(ii) the Tansey

(iii) the scarcity

and stressed to

provenance,

in the world, which

and/or desirabilitYi
and

represented

of quality

art market.

-8-

enhanced

Painting's

Tansey

its value
iconic statusi

works of art in the

17.
aforesaid

were material

consummate

the purchase
18.

assurances
returned

inducements

to Plaintiff

and warranties

and/or

to

implied representations,

that the Tansey Painting

were borne out by JG arranging
at CC's gallery,

New York City.

Safflane

of the Tansey Painting.

JG's express

Painting

Wylde as

for Plaintiff

to CC and could be sold to Plaintiff

Defendant
Tansey

JG's representations

had been

Safflane by

for Wylde to view the

situated

at 84 Mercer Street,

On or about July 27, 2009, Wylde and JG viewed

the Tansey Painting,

which was hanging

on a wall in CC's

gallery.
19.
wylde's

The facts, circumstances

justifiable

assurances

made

reliance

on JG's representations

in New York City during

July 20, 2009, through
for the Painting

and reasons

the period

the date Plaintiff

Safflane

relating

to

and
commencing
was invoiced

on July 31, 2009, were as follows:

i.

During and/or shortly after the viewing at CC's
gallery, JG again reassured and represented to
Wylde, in words and/or in sum or substance,
expressly and/or impliedly, that the Tansey
Painting was no longer being exhibited at the
Met, the Tansey Painting had been properly
returned to CC by the Met, CC then evidently
owned it since it was hanging in CC's gallery,
and the Tansey Painting could be sold to
Plaintiff Safflane by Defendant;

ii.

JG was a senior salesperson at, and was acting on
behalf of Defendant, one of the most reputable
and renowned contemporary art dealers in the
world;

-9-

iii. CC was a well known New York City art dealer who
was allegedly retiring from the business and was
selling the Tansey Painting as part of the
winding down of CC's art dealership;
iv.

Plaintiff Safflane and/or Wylde had previously
consummated nine art transactions with Defendant
through JG, with a total value in excess of
$5,000,000.00, and a special relationship
developed, as set forth above, between Wylde and
JG, including one of trust and confidence;

v.

Defendant was uniquely situated in the art world
to research and to evaluate the truth or falsity
of CC's representations, having dealt with the
Met in the past, knowing key Met personnel and
curators as well as knowing exactly how to source
and verify the relevant information from the Met
relating to the Tansey Painting (see paragraph 21
below).
When questioned by Wylde via an e-mail
(which expressly referenced the gift to the Met)
as to who William Lieberman was, JG recklessly
failed to reveal to Plaintiff Safflane that JG
had not investigated anything with respect to the
stated gift, which included the Met's
longstanding loan practices.
A proper and
reasonable due diligence investigation would have
immediately revealed that CC may not have had the
right to sell the Tansey Painting and that the
Tansey Painting may have been merely loaned
and/or entrusted by the Met to CC, a merchant who
dealt with goods of that kind. Such reckless
act/omission served as an additional fraudulent
inducement; and

vi.

JG's foregoing representations
concerning
ownership and title of the Tansey Painting were
rational, credible and there was no reason for
Safflane to doubt any of the foregoing.

20.

Upon

well in advance

information

of the sale of the Tansey

the Met had an alleged
Painting,

and belief,

31% ownership

with a further

agreement

-10-

prior to 2009, and

Painting

interest

to Safflane,

in the Tansey

and commitment

that the

balance

of ownership

gifted/donated

of the Tansey

at or before

was to be

the death of Ms. Jan Cowles

CC's mother)

and/or

to documents

on file at the Met, the Met allegedly

partial

ownership

CC.

Painting

Upon information

interest

and belief,

in the Tansey Painting

(who is

according

obtained

a

as follows:

i.

A Promised Gift for Individual Donor (signed on
the Met's gift form) executed by CC in 1988,
giving a one percent (1%) interest in the Tansey
Painting to the Met;

ii.

Offer of a Promised Gift (signed on the Met's
gift form) executed by Ms. Jan Cowles in 1993,
possibly promising a fifty percent (50%) interest
in the Tansey Painting to the Met;

iii. Offer of Partial Interest Gift (signed on the
Met's gift form) executed by Ms. Jan Cowles in
2003, giving a twenty percent (20%) interest in
the Tansey Painting to the Met; and
iv.

21.
diligence

Offer of Partial Interest Gift (signed on the
Met's gift form) executed by Ms. Jan cowles in
2004, giving a ten percent (10%) interest in the
Tansey Painting to the Met.
Had Defendant

based on its own resources

information
including

uniquely

accessible

but not limited

professional
information
annual

relationships
published

reports

Safflane

proper

and customary

and public

and available

to access
between

and private

to the Met's staff,
Defendant

and the Met,
and through

inter alia, its annual reports

and 2004-2005)

did not readily

-11-

due

to Defendant,

by the Met electronically

(including,

fiscal years 2003-2004
Plaintiff

performed

- access

its

for

to which

enjoy - Defendant

would have

expeditiously
continued

learned that:

to maintain

Painting well before
to Plaintiff
Paintingi

possible

the time Defendant

maintained

and

in the Tansey

sold the Tansey Painting

(ii) ee may not have owned the Tansey
8's exclusionary

the Tansey

and/or

circumstances

interest

(iii) (subject to paragraph

language above)
Defendant

an ownership

Safflanei

and

(i) the Met allegedly

Painting

could not be sold to

Plaintiff

Safflane

under

such questionable

and that good and clear title may not have been

to pass to Defendant
22.

and/or

In the alternative,

known at all relevant
make representations

Plaintiff

Defendant

Safflane.

knew or should have

times that it did not have the right to
to Plaintiff

ownership

or ee's alleged

Painting,

upon which Safflane

detriment

and was thereby damagedi

Defendant

acted with reckless

Safflane

regarding Defendant's

rights and control
justifiably

of the Tansey

relied to its

or, in the alternative,

disregard

therewith

in making

such

representations.
23.
Tansey

On July 31, 2009, Defendant

Painting

$2,500,000.00

to Plaintiff

Safflane

and issued to Plaintiff

conveyed and sold the

for a purchase
Safflane

price of

the Tansey

Invoice.
24.
Defendant

The Tansey

to Safflane

Invoice purported

conditioned

"Title does not pass until paYment

-12-

to pass title from

upon paYment

in full, stating:

in full has been received."

Payment

in full was made on or about August

thereafter

the Tansey

Painting

5, 2009, and

was delivered

to Plaintiff

Safflane.
25.
referenced

Safflane

and Defendant

in the Tansey

Invoice.

in any manner whatsoever,
behalf

of anyone

identified
purchased.

purported

Defendant

Painting.

The Tansey

was acting on

is specifically

from which the Tansey

paid only Defendant,

commission

Invoice does not,

that Defendant

other that itself.

Safflane

for the Tansey

The Tansey

indicate

as the entity

are the only parties

Painting was

and no other party,

Invoice does not indicate a

or the amount of the original purchase

price paid by Defendant

to CC for the Tansey

paid Defendant

for the full value of the Tansey

directly

Painting

as stated

pursuant

to the Tansey

delivered

Safflane

dated April

asserting

an alleged

Painting,

Defendant

Painting

extremely

Invoice by having

Defendant

performed

the Tansey Painting

On or about April 2, 2010, Defendant's

advised

memorandum

Tansey

Invoice.

Safflane

to Safflane.
26.

formally

in the Tansey

Painting.

via an e-mail

incorporating

a

2, 2010, inter alia, that the Met was

31% ownership

interest

was not authorized

for Defendant.

-13-

in the Tansey

in any way to sell the

and the sale of the Tansey

embarrassing

counsel

Painting

was

27.
Defendant

At all relevant

was acting as a principal

in the sale of the Tansey

Painting

that such sales transaction
between

times, Wylde believed

Plaintiff

Defendant,

Safflane

and/or

the selling merchant

to Plaintiff

Safflane

would be consummated
and Defendant.

through JG or otherwise,

that

and

directly

At no time did

state orally or in writing

that it was acting as an agent for ee or acting on ee's behalf.
In point of fact, JG offered

the painting

for a sum in excess of $3,000,000.00
and when Plaintiff

Safflane

to Plaintiff

Safflane

on or about July 27, 2009,

subsequently

responded

with a

counteroffer,

JG replied

that "I have to speak to Larry

[Gagosian]."

At no time did JG state that he had to speak to ee

or anyone other than Gagosian
negotiations
the Tansey

related

to the purchase

by Plaintiff

Safflane

of

Painting.
28.

consignment

about the price during any and all

Upon information

or agency

ee and Defendant,
in substance,

and belief,

agreement,

written

or otherwise,

between

and at no time did ee ever state, in words or

or believe

or act as if, Defendant

ee acted at all times with Defendant
basis and/or art-dealer-to-art-dealer
independently,

there was no

was ee's agent.

on a merchant-to-merchant
basis,

in which both acted

guided by their own self-interest,

Defendant

act as an agent,

principal

who ultimately

disclosed

or otherwise,

does not have title.

-l4-

nor could
for a

PRINCE FACTS
C.

The Sale of Prince's "Millionaire
To Plaintiff Wylde By Defendant
29.

Wylde

On october

the following

Nurse"

15, 2009, Defendant

(2002)

showed Plaintiff

painting:

Millionaire Nurse
RICHARD PRINCE (b. 1949)
Signed, titled and dated 2002 on the overlap
Ink jet print and acrylic on canvas
58 x 36 in. (147.3 x 91.4 cm).
30.
Wylde

On october

16, 2009, Defendant

gave Plaintiff

a fact sheet on the Prince Painting.
31.

On Friday, october

salesperson

JG, sold to Plaintiff

a purchase

23, 2009, Defendant,

by its

price of $2,200,000.00.
32.

dated

Defendant

Friday, october

described

Wylde

Agreement").
in Europe,
therefore
Wylde

issued to Plaintiff

Wylde an invoice

the sale of the Prince Painting

for the sum of $2,200,000.00

The invoice was sent to Plaintiff
after the banks were closed.

unable

intended

the following

to initiate

(the "Prince
Wylde,

Plaintiff

a wire transfer,

to do when the banks re-opened

who was

wylde was

which Plaintiff
for business

on

Monday.

33. Two days later, on Sunday, october
e-mailed

for

23, 2009, on the same day as the sale

above, memorializing

to Plaintiff

Wylde the Prince Painting

Plaintiff

Wylde and advised

-15-

25, 2009, JG

him, inter alia, that the

owner of the Prince Painting
sale was accordingly
34.

Subsequently,

Prince

Plaintiff
Painting

Defendant
amount

JG advised

Wylde

Plaintiff Wylde that he

in the October

25, 2009 e-mail and

Wylde that the truth was that the owner of the

had not withdrawn

had received

a better

than the $2,200,000.00

accepted

it from sale and the

cancelled.

had "lied to" Plaintiff
advised

had withdrawn

from Plaintiff
Wylde's

ability

Agreement

and accordingly

offer,

i.e., an offer higher

offer Defendant

Wylde.

Plaintiff

it from sale but that in fact,

had already

Such acts defeated

to perform
Defendant

pursuant
breached

in

and destroyed

to the Prince
the Prince

Agreement.
35.
business

Upon information

practice

work of art

of entering

for Contract

offer(s)
higher

detriment

agreement

No.1,

to the time, Defendant
Defendant

Defendant

unlawfully

No. 1 and accepts
of Contract

unlawfully
a higher

No. l's original

-16-

repudiates

offer,

has a
to sell a

but prior to the
issues an
seeks higher

for the same work of art, and upon receiving

offer(s),

Contract

into a binding

Defendant

("Contract No. 1") and thereafter,

time, and even subsequent
invoice

and belief,

such

and/or rejects

to the financial

purchaser.

TANSEY

CLAIMS

AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Express Warranty of Title)
36.
foregoing

Plaintiffs

allegations
37.

concerning

relating

Defendant's

Painting

to the Tansey

38.
Plaintiff

representations

made by the seller to the buyer

Painting

Safflane's

made in July, 2009

and title thereto were an

of fact or promise

basis of Plaintiff

all of the

as if fully set forth herein.

the Tansey

affirmation

repeat and reallege

which was a material

purchase

part of the

of the Tansey Painting.

At the time of the sale of the Tansey Painting

Safflane,

to induce Plaintiff

and prior thereto and as a part thereof,
Safflane

Defendant

represented

expressly

and/or

to purchase

and warranted

impliedly,

to
and

the Tansey Painting,

to Plaintiff

Safflane,

inter alia, that the Tansey

Painting

was no longer being exhibited

at the Met, had been returned

CC, could be sold to Safflane

and good, clear and unencumbered

title to the Tansey

Painting

could be conveyed

to

to Plaintiff

Safflane.
39.
relying

Plaintiff

Safflane

on the aforementioned
40.

Defendant's

purchased

representations

representations

July, 2009 constituted

an express

Defendant

to Plaintiff

could convey

unencumbered

the Tansey

title to the Tansey

warranty

-17-

and warranties.

and warranties

in

and/or guarantee

Safflane

Painting

Painting

that

good, clear and

and/or that Plaintiff

Safflane would receive

good, clear and unencumbered

title to the

Tansey Painting.
41.

As a result of the foregoing,

has been damaged
Painting

in a sum reflecting

appropriate
including

the precise

legal interest

amount

thereon

all consequential

Safflane

the value of the Tansey

at the time of trial, exceeding

($6,000,000.00),

Plaintiff

Six Million Dollars

to be proven

at trial, with

and in addition

and incidental

thereto,

damages proximately

related thereto.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Implied Warranty of Title)
42.
foregoing

Plaintiffs

allegations
43.

contained

to sell the Tansey

warranty

good, and its transfer
was to be delivered

all of the

as if fully set forth herein.

The contract

an implied

encumbrance

repeat and reallege

Painting

that the title conveyed was to be

rightful,

to Plaintiff

and that the Tansey Painting
Safflane

free from any lien,

or claims by third parties.
44.

constituted

Defendant's

an implied

could convey

would receive

warranty

to Plaintiff

title to the Tansey

representations
and/or

Safflane

Painting

and/or

guarantee

-18-

that Defendant

good, clear and unencumbered
that Plaintiff

good, clear and unencumbered

Painting.

in July 2009

Safflane

title to the Tansey

45.
relying

Plaintiff

on the aforementioned
46.

Painting

warranties

in a sum reflecting

($6,000,000.00),

including,

and/or

the precise

legal

interest

guaranties.

Plaintiff

Six Million Dollars

amount to be proven

at trial, with

thereon and in addition

all consequential

Safflane

the value of the Tansey

at the time of trial, exceeding

appropriate

the Tansey Painting

As a result of the foregoing,

has been damaged

related

Safflane purchased

and incidental

thereto,

damages proximately

thereto.
AS AND FOR A THIRD CAUSE OF ACTION
(Breach of Implied Warranty of Merchantability)
47.

foregoing

Plaintiffs

allegations
48.

contained

repeat and reallege

as if fully set forth herein.

Defendant's

an implied

agreement

warranty

alia, title to the Tansey
in the trade pursuant

Painting

affirmations

that, inter

Painting was to pass without

purposes

objection

in the Tansey

for which

are used and would conform

Invoice,

goods such as the
to the promises

or

Plaintiff

Safflane purchased

the Tansey

Painting

Plaintiff

Safflane

on such warranties.
50.

As a result

has been damaged
Painting

of merchantability

of fact made by Defendant.

49.
relying

to sell the Tansey Painting

to the description

was fit for the ordinary
Tansey

all of the

of the foregoing,

in a sum reflecting

the value of the Tansey

at the time of trial, exceeding
-19-

Six Million

Dollars

($6,000,000.00),
appropriate
including
related

the precise

legal interest

amount to be proven

thereon

all consequential

at trial, with

and in addition

and incidental

thereto,

damages proximately

thereto.
AS AND FOR A FOURTH CAUSE OF ACTION
(Breach of Contract)
51.

foregoing

Plaintiffs

allegations

repeat

and reallege

as if fully set forth herein.

52. On July 31, 2009, Plaintiff
Defendant

entered

consideration,
Painting

$2,500,000.00,
Safflane
Tansey

into a contract,

in which Defendant

to Plaintiff

all of the

Safflane

and Defendant

Safflane

and

for good and valuable
agreed to sell the Tansey

for a purchase

thereafter

price of

issued to Plaintiff

an invoice dated July 31, 2009, for the sale of the

Painting.
53. On or about August

paid Defendant

5, 2009, Plaintiff

the sum of $2,500,000.00,

Safflane

thereby performing

its

part of the contract.
54. Defendant
neglecting
Plaintiff
Tansey

to perform
Safflane

breached

the contract

its obligations

good,

by failing and

by not conveying

clear and unencumbered

to

title to the

Painting.
55.

has been damaged
Painting

As a result

of the foregoing,

in a sum reflecting

at the time of trial,

Safflane

the value of the Tansey

exceeding
-20-

Plaintiff

Six Million

Dollars

($6,000,000.00),
appropriate
including
related

the precise

legal interest

amount

thereon

all consequential

to be proven at trial, with
and in addition

and incidental

thereto,

damages proximately

thereto.
AS AND FOR A FIFTH CAUSE OF ACTION
(Fraud)
56.

foregoing

Plaintiffs

allegations
57.

repeat

all of the

as if fully set forth herein.

Defendant

that the Met allegedly

failed

to inform Plaintiff

owned a 31% interest

Painting

and that Defendant

transfer

to Plaintiff

to the Tansey

and reallege

Safflane

in the Tansey

was not legally authorized

Safflane

to

good clear and unencumbered

title

Painting.

58.

Defendant

knew or should have known that its

representations

to Plaintiff

Tansey

were false,

Painting

Safflane

concerning

title to the

that such misrepresentations

and

omissions

(see inter alia, paragraph

knowledge

of their falsity and with the intent and for the

purpose

of deceiving

and defrauding

Safflane

to purchase

reckless

disregard

true or false.

the Tansey

to whether

Defendant

and inducing Plaintiff

Painting

or were made with

or not such representations

communicated

misrepresentations

concerning

that such material

misrepresentations

Safflane

15, above) were made with

such fraudulent

the Tansey

Painting and intended

and omissions

to Plaintiff

be taken as true and caused and induced Plaintiff
-21-

were

Safflane

to actually

misrepresentations
by purchasing

and omissions

rely on the

of Defendant

The specifics

of the fraud are alleged

Facts section above in paragraphs
60.

Defendant

upon information

and belief,

exploited

CC's weak financial

commit

on very

favorable

terms,

position

terms.

as aforesaid,

from the sale to Plaintiff
sale JG and Defendant
client relationship
61.

Painting

to purchase

Defendant

appropriate

could continue

with Plaintiffs

in a sum reflecting

including

legal interest
all consequential

had the motive

to

on

and reap a high profit margin

Safflane,

the precise

the Tansey

the Tansey Painting

and as a result of such
to maintain
Safflane

amount

thereon

-22-

and Wylde.
Plaintiff

Six Million

Safflane

Dollars

to be proven at trial, with
and in addition

and incidental

thereto.

a fruitful

the value of the Tansey

at the time of trial, exceeding

($6,000,000.00),

financial

who seized upon and

As a result of the foregoing,

has been damaged

related

by Defendant,

fraud as it could purchase

favorable

to commit fraud as,

CC was in a desperate

and was exploited

in the

12 through 28.

had the opportunity

condition,

Painting

set forth above

the Tansey Painting.

59.
Tansey

and justifiably

thereto,

damages proximately

AS AND FOR A SIXTH CAUSE OF ACTION
(Negligent Misrepresentation)
62.
foregoing

Plaintiffs

allegations
63.

confidence

is and was in a special position

and trust with Plaintiffs,

and specialized
relationships

14 and 19.

expertise

of

as more fully set forth

Defendant

has and had a unique

in the art market,

with museums

artists

all of the

as if fully set forth herein.

Defendant

above in paragraphs

renowned

repeat and reallege

including

such as the Met and with world-

such as Tansey, as more

fully set forth

hereinabove.
64.
correct

Defendant

information
65.

representations
Defendant

Defendant

to Plaintiffs

Safflane

negligent

(see paragraph

15, above), which
and inaccurate.

were known by the Defendant
for the purpose

and false

to be desired

of purchasing

the Tansey

for the sum of $2,500,000.00.
66.

When Defendant

title issues related
discharge

made reckless,

knew or should have known were untrue

by Plaintiff

and

to the Plaintiffs.

Such representations

Painting

had a duty to impart accurate

was made aware of the possible

to the Tansey Painting,

its duty of reasonable

by not making

care

Defendant

(see paragraph

failed to

15, above)

proper

inquiry to confirm

CC's alleged rights or

the truth or falsity

of CC's statements

related

ownership

of the Tansey

Painting

to the title and

as set forth above

-23-

(including

paragraph

15), and Plaintiff

Defendant's

misleading

detriment.

Defendant

Plaintiff

Safflane

Safflane

and incomplete

reasonably

relied upon

representations

was also negligent

by failing

to inform

that it took no steps to contact

any other party to confirm

CC's alleged

to its

the Met or

rights to the Tansey

Painting.
67.
purchase

Plaintiff

Safflane

the Tansey painting,

would not have offered to

much less consummate

had it known title and ownership
68. Defendant
and/or omissions

to the work were an issue.

violated

proximately

69. As a result,

its duty and its actions

caused Plaintiff
Plaintiff

the value of the Tansey

of trial, exceeding

Six Million

amount

interest

to be proven

thereon

consequential

Safflane

Safflane

in a sum reflecting

precise

its purchase,

Dollars

damage.

has been damaged

Painting

at the time

($6,000,000.00),

the

at trial, with appropriate

and in addition

and incidental

thereto,

including

damages proximately

legal

all

related

thereto.
AS AND FOR A SEVENTH CAUSE OF ACTION
(Violation of New York
Arts and Cultural Affairs Law § 13.03)
70.
foregoing

allegations
71.

Affairs

Plaintiffs

repeat and reallege

all of the

as if fully set forth herein.

Defendant

violated

Law § 13.03 as Defendant,

-24-

the New York Arts and Cultural
intending

to defraud,

deceive

and/or

injure Plaintiff

the Tansey Painting
authenticity
Safflane

Safflane,

attesting

of the Tansey

when paYment

in full had been received

The Tansey

Invoice

the law as Defendant

Painting

to Plaintiff

Defendant

Safflane

is false and Defendant

because,

8's exclusionary

to Plaintiff

title to the Tansey

Safflane

of the foregoing

violation

of New York Arts and cultural

Plaintiff

Safflane

has been damaged

of the Tansey

Million

Dollars

and

language

Painting

at trial, with appropriate
thereto,

damages

proximately

related

could not

to Defendant.

and Defendant's

Affairs

Law § 13.03,

in a sum reflecting

the precise

legal interest

including

Good,

the

at the time of trial, exceeding

($6,000,000.00),

addition

Painting

when it made paYment

73. As a result

value

upon information

never had title to the Tansey Painting.

clear and unencumbered
pass

by Defendant.

could not pass title to the Tansey

(subject to the paragraph

above),

when, in fact,

title did not pass to Plaintiff

violated

belief

would pass to Plaintiff

in full had been received,

after paYment
72.

that title and accompanying

Painting

good, clear and unencumbered
Safflane

made and issued an invoice for

amount

thereon

all consequential

to be proven

and in

and incidental

thereto.

AS AND FOR AN EIGHTH CAUSE OF ACTION
(Unjust Enrichment)
74.
foregoing

Plaintiffs

allegations

repeat

and reallege

all of the

as if fully set forth herein.
-25-

Six

75.
Painting

As a result of Defendant's

to Plaintiff
76.

Safflane's

Defendant's

conscience

unjust

The circumstances

require Defendant

was unjustly

enrichment

enriched.

was at Plaintiff

are such that equity and good

to make full restitution

to

Safflane.
78.

As a result of the foregoing,

has been damaged
($100,000.00),
appropriate
including
related

Defendant

expense.
77.

Plaintiff

Safflane,

sale of the Tansey

in a sum exceeding

the precise

amount

legal interest

One Hundred

Safflane

Thousand

Dollars

to be proven at trial, with

thereon

all consequential

Plaintiff

and in addition

and incidental

thereto,

damages proximately

thereto.
PRINCE

CLAIMS

AS AND FOR A NINTH CAUSE OF ACTION
(Repudiation and/or Breach of Contract)
79.
foregoing

allegations
80.

Defendant
purchase

Plaintiffs

and reallege

23, 2009, Plaintiff

into an agreement

the Prince

all of the

as if fully set forth herein.

On October

entered

repeat

Painting

wylde and

for Plaintiff

Wylde to

for the sum of $2,200,000.00,

as

set forth above.
81.

At all times herein mentioned,

was ready, willing

and able to perform

-26-

Plaintiff

Wylde

the terms and conditions

of the Prince Agreement

on his part to be performed,

payment

price therefore

of the purchase
82.

On October

cause, Defendant
Agreement
deliver

by unlawfully

repudiated

cancelling,

the Prince Painting

Defendant

As confirmed

statement
Monday,

october

another

buyer who made a higher

higher

had entered

into a binding

to

Wylde because

a higher

offer for the Prince

counsel's

in court

the Hon. Denise Cote, on

26, 2009, Defendant

offer notwithstanding

the Prince

failing and refusing

by Defendant's

on May 13, 2011 before

legal reason or

and breached

to Plaintiff

had sought and received

Painting.

in full.

25, 2009, without

unlawfully

including,

sold the Prince Painting

offer.

Defendant

that Defendant
agreement

accepted

and Plaintiff

to

such
Wylde

for the sale of the Prince

Painting.
83. As a result of the foregoing,
been damaged

in a sum exceeding

($1,000,000.00),
appropriate
including
related

the precise

legal interest
all consequential

Plaintiff

Wylde has

One Million Dollars

amount

thereon

to be proven at trial, with
and in addition

and incidental

thereto,

damages proximately

thereto.
AS AND FOR A TENTH CAUSE OF ACTION
(Deceptive and Misleading Business Practices
GBL §§ 349 et. seq.)
84.

foregoing

Plaintiffs

allegations

repeat

and reallege

all of the

as if fully set forth herein.

-27-

-

85.

Defendant

has engaged

and misleading

business

practices

Sections

349 et. seq. as set forth above in paragraph
86.

in violation

in deceptive

Defendant

of New York General Business

is an art gallery

in deceptive

and dishonest

impact on the public

at large

New York City and throughout
87.
activity

Defendant

affecting

maintaining
agreements

has engaged

collectors

in consumer

at large.

practice

Defendant

of entering

accepting

higher

offer(s)

art and unlawfully

repudiating

binding

agreements

to the detriment

utilizes

tactics

respects

and Plaintiffs
88.

for deceptive
Defendant

which has a broad

l

appropriate

1

business

the precise

legal interest

the prior

a cause of action

practices

One Million

thereon

-28-

1

in material

exists against

Wylde and Plaintiff

amount

purchasers

thereby.

As a result of the foregoing

($1/000/000.00)

by

of the original

have been injured

in a sum exceeding

1

for the same works of

which were and are deceptive

and misleading

related

unlawfully

and/or rejecting

in favor of Plaintiff

been damaged

of art in

into binding

to sell works of art and thereafter

seeking and/or

and has

l

the world.

consumers

a business

at large

misconduct

including

l

35.

open to the public at

large and sells works of art to the public
engaged

Law

Wylde has

Dollars

to be proven at trial

with

l

and in addition

thereto

1

including
related

all consequential

and incidental

damages proximately

thereto.
AS AND FOR AN ELEVENTH CAUSE OF ACTION
(Unjust Enrichment)
89.

foregoing

Plaintiffs

allegations

repeat and reallege

as if fully set forth herein.

90. As a result of Defendant1s
sale of the Prince
accept

a better

Wylde1s

Painting

offer

l

to Plaintiff

Defendant

Defendant1s

91.

all of the

cancellation

Wylde in order to

was unjustly

unjust

of the

enrichment

enriched.
was at Plaintiff

expense.
92.

conscience
Plaintiff

The circumstances

require

Defendant

are such that equity and good

to make full restitution

Wylde.
93. As a result of the foregoing

been damaged
($100 000.00)

in a sum exceeding
1

1

appropriate
including
related

to

the precise

legal interest
all consequential

One Hundred

amount

Plaintiff

1

Thousand

Wylde has

Dollars

to be proven at trial

thereon

l

and in addition

and incidental

thereto

AS AND FOR A TWELFTH CAUSE OF ACTION
(Breach of the Implied Covenant
Of Good Faith and Fair Dealing)
Plaintiffs

foregoing

allegations

emphasis

on paragraphs

repeat and reallege

all of the

as if fully set forth herein

l

29-35.
-29-

1

damages proximately

thereto.

94.

with

with

95.
Defendant
Wylde's

By soliciting

accepted,

Defendant

right to receive

but not limited
interfered

and exploiting
defeated

Wylde's

reasonable

including

in a sum exceeding

($1,000,000.00),

the precise

legal interest

Plaintiff

One Million

amount to be proven

and incidental

Wylde

Dollars
at trial, with

thereon and in addition

all consequential

and

expectations.

As a result of the foregoing,

has been damaged

related

Plaintiff

to, the value of the Prince Agreement,

96.

including

and destroyed

the fruits of its bargain,

with Plaintiff

appropriate

a higher offer which

thereto,

damages

proximately

thereto.
AS AND FOR A THIRTEENTH CAUSE OF ACTION
(Specific Performance)
97.

foregoing

allegations

98.
Wylde's

Plaintiffs

Defendant

has refused

in the Prince

Plaintiffs

to acknowledge

to a judgment

the Prince Agreement

have no adequate

remedy

of specific

performance

for the Prince

Painting.

-30-

Plaintiff

Painting.

100. As a result of the foregoing,
entitled

all of the

as if fully set forth herein.

legal interest
99.

repeat and reallege

at law.

Plaintiff

Wylde is

by Defendant

on

JURY DEMAND
Plaintiffs

demand

WHEREFORE
a.

Plaintiffs

1

Million

Dollars

Safflane

addition

1

Million

Dollars

at trial
addition

Million
l

addition

legal interest

Painting

all consequential

l

l

damages

including

Defendant

the value of

amount

Six

to be proven

and in

and incidental

l

legal interest

Defendant

the value of

in a sum exceeding

1 the precise

amount

thereon

all consequential

-31-

against

reflecting

at the time of trial

($6/0001000.00)

thereto

against

theretoi

Safflane

with appropriate

and incidental

thereon

l

Dollars

at trial

the precise

On the Third Cause of Action

in favor of Plaintiff

and in

in a sum exceeding

l

related

to be proven

reflecting

at the time of trial

proximately

the Tansey

damages

l

including

l

c.

l

($6/0001000.00)1

thereto

damages

Cause of Action

Safflane

with appropriate

l

thereon

Six

theretoi

On the Second

Painting

amount

all consequential

related

in favor of Plaintiff
the Tansey

1 the precise

legal interest

including

the value of

in a sum exceeding

l

proximately
b.

reflecting

at the time of trial

($6/0001000.00)

thereto

damages

damages

l

with appropriate

l

against Defendant

l

Painting

at trial

demand judgment:

On the First Cause of Action

in favor of Plaintiff
the Tansey

a jury for all claims stated herein.

Six

to be proven

and in

and incidental

damages proximately
d.

related

On the Fourth

in favor of Plaintiff
the Tansey
Million

Painting

Dollars

thereto,

damages

related

thereto,

damages

proximately

related

Painting

and incidental

against Defendant

reflecting

the precise

legal interest

the value of

thereon

thereto,

damages

damages

proximately

related

and in

and incidental

against

Defendant

the value of

in a sum exceeding

the precise

legal interest

amount

thereon

all consequential

Six

to be proven

and in

and incidental

thereto;

On the Seventh

in favor of Plaintiff

to be proven

reflecting

at the time of trial,

including

Six

thereto;

($6,000,000.00),

addition

amount

all consequential

Safflane,

at trial, with appropriate

g.

damages

On the Sixth Cause of Action,

in favor of Plaintiff

Dollars

and in

at the time of trial, in a sum exceeding

including

Six

thereto;

($6,000,000.00),

addition

Million

the value of

amount to be proven

thereon

all consequential

Safflane,

at trial, with appropriate

the Tansey

the precise

On the Fifth Cause of Action,

Painting

f.

reflecting

legal interest

including

in favor of Plaintiff

Dollars

against Defendant

at the time of trial, in a sum exceeding

proximately

Million

damages

($6,000,000.00),

addition

e.

Cause of Action,

Safflane,

at trial, with appropriate

the Tansey

thereto;

Cause of Action,

Safflane,

damages

-32-

against Defendant

reflecting

the value of

the Tansey
Million

Painting

Dollars

at the time of trial, in a sum exceeding

($6,000,000.00),

at trial, with appropriate
addition

thereto,

damages

proximately
h.

Hundred
proven

legal interest

including

damages

($100,000.00),

at trial, with appropriate

addition

thereto,

damages

proximately
i.

including

Million

Dollars

thereto,

damages

proximately
j.

Wylde,

Million

Dollars

damages

proximately

related

the precise

and in

and incidental

against

Defendant

amount

One

to be proven

thereon and in

Cause of Action,

Wylde,

including

thereon

and incidental

theretoj

damages

($1,000,000.00),

thereto,

amount

in a sum exceeding

all consequential

On the Tenth

addition

to be

legal interest

related

at trial, with appropriate

the precise

legal interest

damages

including

in favor of Plaintiff

One

Cause of Action,

($1,000,000.00),

addition

against Defendant

theretoj

On the Ninth

at trial, with appropriate

and incidental

in a sum exceeding

all consequential

related

in favor of Plaintiff

thereon and in

Cause of Action,

Safflane,

Dollars

to be proven

theretoj

On the Eighth

Thousand

amount

all consequential

related

in favor of Plaintiff

the precise

Six

legal interest

amount

thereon

all consequential

-33-

Defendant

in a sum exceeding

the precise

theretoj

against

One

to be proven

and in

and incidental

k.

On the Eleventh

Cause of Action,

Defendant

in favor of Plaintiff

exceeding

One Hundred

precise
interest

amount

Thousand

to be proven

Wylde,
Dollars

in a sum

($100,000.00),

the

at trial, with appropriate

thereon and in addition

consequential

damages

against

and incidental

thereto,

damages

including

proximately

legal

all

related

theretoi
1.

On the Twelfth

in favor of Plaintiff
Million

Dollars

Wylde,

damages

($1,000,000.00),

at trial, with appropriate
addition

thereto,

damages

proximately
m.

Cause of Action,

including
related

Judgment

against Defendant

in a sum exceeding

the precise

legal interest

One

amount to be proven

thereon and in

all consequential

and incidental

theretoi

on the Thirteenth

Cause of Action:

i.

ordering and decreeing that Defendant
specifically perform the contract concerning
the Prince Paintingi and

ii.

adjudging that Plaintiff Wylde is the true
owner of the Prince Paintingi and

-34-

n.

Granting

to the Plaintiffs

such other and further

relief as this Court shall deem just and proper,
the costs and disbursements
attorneys'

Dated:

of this action,

together with

and reasonable

fees.

New York, New York
June 10, 2011
Respe
s/Aa
AARON RICHAR
P.C.
Attorneys for Plaintiffs
rd
34 East 67th Street - 3
Floor
New York, New York 10065
ph: 212-838-4811
fx: 212-838-4869
ARG 6056

-35-

=========NOTICE
OF ENTRY===========
PLEASE take notice that the within is a (certified)
true copy of a
duly entered in the office of the clerk of the within
named court on
Dated,
Yours, etc.

New YOT'l New YOT'k10065

34 .J;asi 67th St-reet-3,J +=1001"

AaT'on RichaT'd Golub, .[sCjuiT'e,

p.e.

Office and Post Office Address

Attorney for

To
Attorney(s) for

M.

Yours, etc.

AaT'on RichaT'd Golub, .J;sCjui-re,

p.e.

=======NOTICE OF SETTLEMENT=====
PLEASE take notice that an order
of which the within is a true copy will be presented
for settlement to the Hon.
on
at
Dated,

Attorney for

34 .J;asi 67th St-reet - 3,J +=100T'
New YOT'l New YOT'k10065

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
(DLC)

==========================================

ll-CIV-1679

Plaintiffs,

SAFFLANE HOLDINGS LTD., and
ROBERT WYLDE,

-againstGAGOSIAN GALLERY, INC.
Defendant..

FIRST AMENDED COMPLAINT

'21'2·838-4811

New YOT'l New YOT'k10065

34 .J;asi 67th St-reet _3,J+=1001"

AaT'on RichaT'd Golub, .[sCjui-re,

p.e.

Attorneys for Plaintiffs
Office and Post Office Address, Telephone

To
Attorney(s) for
Service of copy of the within is hereby admitted
Dated

Attorney( s) for