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

Filing 31

ENDORSED LETTER addressed to Magistrate Judge Michael H. Dolinger from Aaron Richard Golub dated 6/28/2011 re: Requesting that the Court rule as soon as conveniently possible on the proper date for the measurement of damages so that effective settlement discussions can continue. ENDORSEMENT: This court is not empowered at present to rule on the cited issue since our reference is solely for settlement. If the parties wish to consent under section 636(c), that would enable us to act as requested. Alternately, the parties may, as is typically done, negotiate on the basis that the outcome of this issue is, at present, unsettled. Finally, we are willing, in the course of such discussions to offer our non-binding view on the issue.. (Signed by Magistrate Judge Michael H. Dolinger on 6/28/2011) Copies Faxed By Chambers. (jpo) Modified on 6/29/2011 (jpo).

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}:acsimile '21'2.838-486Q

VIA FAX

Magistrate Judge Michael H. Dolinger

United States District Court

Southern District of New York

Courtroom: J.7D
500 Pearl street,
New York, NY 10007

Jut; 2

:

I

Re: Sa!flane Holdings Ltd. et al. v. Gagosian Gallery, Inc.,
No. CV 11-1679-DLC and related action
Dear Judge Dolinger:
There is a dispute among the parties as to the proper date
for the measurement of damages relating to the Tansey painting.
Settlement discussions are unlikely to be fruitful unless this
issue can be resolved.
Plaintiffs respectfully submit that this issue is directly
controlled by Menzel
, 24 N.Y.2d 91 (1969). There, the
question before the court was how to meaSure damages for breach
of implied warranty of title, in a third-party action brought by
the purchaser of a painting against the gallery owners who had
sold it to him,
the painting was replevined by a previous
owner claiming superior title.
rd. at 93-95. After considering
four different approaches to the question raised, the Menzel
court
held the damages were to be measures by "the
value of the painting at the time when, by the judgment in the
main action, [the third-party plaintiff] was required to
surrender the painting to [its previous owner] or pay her the
present value of the painting." Id. at 97 (emphasis added); see
also Jeanneret v. vichey, 693 F.2d 259, 266 n.ll (2d Cir. ~982)
that, for purposes of measuring damages for breach of an
implied warranty of title, ~there is ample New York authority
------~~r the assessment of damages at the appreciated value of
ertyat the time of trial" (emphasis added)) i
---­ -­ -- ----. - - ,­

........-~----~

Hon. Michael H. Dolinger
June 28, .2011
Page -2­
Re, No, 99 Civ. 9030 (DLC) , 2000 WL 122142, at *1 (S.D.N.Y. Jan.
31, .2000) (Cote, J.) (" [T] he New York courts have held that
where the property converted is 'unique and irreplaceable ... as
are works of art,' the appropriate measure of damages
corresponds to 'the value of the item at the time of trial,'1t
{quoting Hoffman v. Dorner, 447 N.Y.S.2d .20, 22 (2d Dept. 1982),
in turn citing Menzel v. List, 298 N.Y.S.2d 979, 983 84
(1969») (emphasis added»).

We respectfully request that your Honor rule as soon as
conveniently possible on the proper date for the measurement of
damages so that effective settlement discussions can continue.

'6
r-

submitted/

H

~aron

ARG/bmt
cc:

All opposing counsel via fax

Richard Golub

FAX Cover Sheet

Date: June 28, 2011
To:
Aaron Richard Golub, Esq.
Aaron Richard Golub, Esquire, PC
34 East 67th Street
3rd Floor
New York, NY 10065
(212)-838-4811
Fax: [phone]
Hollis Anne Bart, Esq.

Withers Bergman, LLP

430 Park Avenue, 10th Fir.

New York, NY 10022

[phone]

Fax: [phone]

Re:

Safflane Holdings, Ltd., v. Gagosian Gallery, Inc ..
11 Civ. 1679 (DLC) (MHO)
Text of enclosed endorsed order: "This court is not empowered at
present to rule on the cited issue since our reference is solely for
settlement. If the parties wish to consent under section 636(c), that
would enable us to act as requested. Alternately, the parties may, as
is typically done, negotiate on the basis that the outcome of this
issue is, at present, unsettled. Finally, we are willing, in the course of
such discussions to offer our non-binding view on the issue. "

From:

Magistrate Judge Michael H. Dolinger
United States District Court
Southern District of New York
500 Pearl Street, Room 1670
New York, New York 10007-1312
FAX [phone]
TELEPHONE NUMBER [phone]

This document contains

2. pages, including this cover sheet.