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

Filing 38

ANSWER to 36 Amended Complaint, with JURY DEMAND. Document filed by Gagosian Gallery, Inc..(Bart, Hollis)

WITHERS BERGMAN LLP
Holls Gonerka Bar (HB-8955)

Brian Dunefsky (BD-3554)
Dara G. Hamerman (DH-1591)
Azmina J asani (AJ -4161 )
430 Park Avenue, 10th Floor

New York, New York 10022
212.848.9800 (P)

212.848.9888 (f)
Attorneys for defendant Gagosian Gallery, Inc.

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

Case No.: 11 CIV 1679 (DLC)

SAFFLANE HOLDINGS LTD., and
ROBERT WYLDE,
Plaintiffs,

ANSWER TO PLAINTIFFS'

CORRCTED SECOND AMENDED
COMPLAINT

-against -

GAGOSIAN GALLERY, INC.,
Defendant.
- -------------------- --- ---------- -------------- ------ -- )(

Defendant Gagosian Gallery, Inc. ("Gagosian Gallery"), by and through its attorneys
Withers Bergman LLP, as and for its Answer to the Corrected Second Amended Complaint (the
"Second Amended Complaint"), states as follows:

THE PARTIES
1. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 1.
2. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 2.
3. Gagosian Gallery admits the allegations in paragraph 3.

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4. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 4.

JURISDICTION AND VENUE
5. Gagosian Gallery states that paragraph 5 pleads a legal conclusion to which no

answer is required, but to the extent that an answer is required, Gagosian Gallery denies knowledge

or information sufficient to admit or deny the allegations in paragraph 5.
6. Gagosian Gallery states that paragraph 6 pleads a legal conclusion to which no

answer is required, but to the extent that an answer is required, Gagosian Gallery denies knowledge

or information sufficient to admit or deny the allegations in paragraph 6, but admits that a
substantial portion of

the events and omissions giving rise to Plaintiffs' claims occured in this

District.

FACTUAL BACKGROUND
7. Gagosian Gallery states that paragraph 7 does not require a response, but to the

extent that a response is required, Gagosian Gallery denies knowledge or information sufficient to
admit or deny the statements made in paragraph:'?, and states that Plaintiffs are judicially estopped

from pleading inconsistent facts, as between this action and the Met v. SajJane action.
8. Gagosian Gallery denies the allegations in paragraph 8, but admits that Gagosian

Gallery is one of

the most important contemporary art galleries in the world, and affrmatively avers

that Gagosian Gallery maintains a total of 11 galleries throughout the world, is principally owned
which Larr Gagosian is a member.

by Larry Gagosian, and is managed by a management team of

paragraph 9,

9. Gagosian Gallery denies the allegations in the first two sentences of

but admits that Tansey, an American postmodern painter known for monochromatic works and
elaborate paintings incorporating hidden text and symbols, was born in 1949 in San Jose,

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paragraph 9, but admits that it

California. Gagosian Gallery denies the third and fourth sentence of

has represented Tansey for several years and is familiar with his works.
10. Gagosian Gallery denies the allegations in paragraph 10, but admits that Prince is

an American appropriation arist who was born in 1949 in the Republic of Panama and whom
this action sold for $2.5

Gagosian Gallery represents, and that the work of ar made the subject of

milion.
TANSEY FACTS
11. Gagosian Gallery denies the allegations in paragraph 11, but admits that in or about

late July, 31, 2009, John Good ("Good"), an experienced salesperson, issued an invoice to
memorialize the sale Gagosian Gallery effected'..òn behalf of its principal, Charles Cowles

("Cowles"), to PlaintiffSafflane, through its authorized representative, Robert Wylde ("Wylde", of
the painting by Mark Tansey, entitled "The Innocent Eye Test."

12. Gagosian Gallery denies the allegations in paragraph 12.
13. Gagosian Gallery states that paragraph 13 pleads a legal conclusion to which no
response is required, but to the extent a response is required, Gagosian denies the allegations in
paragraph 13, but admits that since 2004 Wylde, as Safflane's authorized representative, has
engaged in approximately nine art transactions with Gagosian Gallery, and that Plaintiffs are active
collectors of

the works of

Tansey, and that they are experienced art collectors who are known for

wanting to improve and complement their ar collection, and that Wylde is known for doing
,.. , !-~.

extensive research before deciding to purchase works of ar for himself or Safflane.

14. Gagosian denies the allegations in paragraph 14, but admits that between on or
about July 20, 2009 to and including the date Plaintiff Safflane was invoiced on July 31, 2009,
Good relayed to Wylde exactly what Cowles had told Good - namely, that the Tansey Painting was

no longer being exhibited at the Metropolitan Museum of Ar (the "Met"), the Tansey Painting had
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been properly retured to Cowles by the Met, Cowles owned the Tansey Painting, it was hanging in

Cowles' gallery, and the Tansey Painting could be sold to Safflane. Gagosian fuher admits that

Good and Wylde exchanged a series of emails on July 28, 2009 with the subject line written by

Wylde that said: "promised gift of charles cowls in honour of Wiliam s. Lieberman."

15. Gagosian Gallery denies the aiiegations in paragraph 15, but admits that as a
collector of

Tansey works, Plaintiff

was aware that the Tansey Painting had been displayed at the

Met, that the Tansey Painting is an iconic piece, and that secondar sales of

works by Tansey are

relatively scarce in the secondary market.

16. Gagosian Gallery states that the allegations in paragraph 16 plead a legal
conclusion to which no answer is required, but to the extent that an answer is required, Gagosian
Gallery denies the allegations in paragraph 16.

17. Gagosian Gallery denies the allegations in paragraph 17, but admits that, at the
request of Wylde, Good aranged for Wylde to view the Tansey Painting at the gallery space in
Cowles's home, located at 84 Mercer Street in New York City, and that on or about July 27, 2009,
Wylde and Good viewed the Tansey Painting at Cowles' gallery.

18. Gagosian Gallery states that the allegations in paragraph 18 plead a legal
conclusion to which no answer is required, but to the extent that an answer is required, Gagosian
Gallery denies knowledge or information sufficient to admit or deny the allegations in paragraph
18.

19. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 19, but admits that in or about March 2010, Gagosian Gallery learned for
the first time that the Met, through gifts made by Cowles and his mother, held a 31 % undivided
interest in the Tansey Painting.
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20. Gagosian Gallery denies the allegations in paragraph 20, and affirmatively avers

Plaintiffs and Wylde, a seasoned collector of

that Gagosian Gallery was not acting on behalf of

Tansey, conducted his own research and due diligence, which confirms that, he was aware of the
Met's interest in the Tansey Painting before he decided to purchase it from Cowles.

21. Gagosian Gallery states that paragraph 21 states a legal conclusion to which no
answer is required, but to the extent that an answer is required, Gagosian denies the allegations in
paragraph 21.

22. Gagosian Gallery denies the allegations in paragraph 22, but admits that it issued an
invoice to Plaintiff Safflane dated July 31,2009 reflecting Cowles's sale of

the Tansey Painting to

Safflane.
23. Gagosian Gallery denies the allegations in paragraph 23, but admits that payment in

full was made on or about August 5, 2009, and thereafter Gagosian Gallery arranged to have the
Tansey Painting delivered from the gallery space of

Cowles's residence to Plaintiffs as per Wylde's

instructions.
24. Gagosian Gallery denies the allegations in paragraph 24, and respectfully refers the
Court to the invoice reflecting Cowles's sale of

the Tansey Painting to Safflane, but affirmatively

avers that Gagosian Gallery acted as Cowles's agent to facilitate the sale of

the Tansey Painting on

behalf of Cowles, a disclosed principal, to Plaintiffs.
25. Gagosian Gallery denies the alleEations in paragraph 25 and respectfully refers the

Cour to the April 2, 2010 memorandum.
26. Defendant states that paragraph 26 pleads expressions of
plaintiff

Wylde's mental

state to which no response is required. To the extent a response is required, Defendant denies the

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allegations in paragraph 26, and affrmatively avers that Gagosian Gallery acted as Cowles's agent
to facilitate the sale of the Tansey Painting on behalf of Cowles, a disclosed principal, to Plaintiffs.
27. Defendant states that paragraph 27 pleads expressions of

Wylde's beliefs
and mental state to which no response is requirea. To the extent a response is required, Defendant
plaintiff

denies the allegations in paragraph 27, and affirmatively avers that Cowles consigned the Tansey

Painting to Gagosian Gallery and that Gagosian Gallery acted as Cowles's agent to faciltate the
sale of the Tansey Painting on behalf of Cowles, a disclosed principal, to Plaintiffs.
PRINCE FACTS
28. Gagosian Gallery admits the allegations in paragraph 28.
29. Gagosian Gallery admits the allegations in paragraph 29.

30. Gagosian Gallery denies the allegations in paragraph 30, but admits that it offered

the Prince Painting to Wylde for the sum of $2.2 milion subject to the condition that Wylde would
transfer the funds by no later than Monday.

31. Gagosian Gallery denies the allegations in paragraph 31, but admits that Gagosian
Gallery issued an invoice dated October 23,2009 for the Prince Painting for the sum of
$2,200,000.00, and denies knowledge or information sufficient to admit or deny whether Plaintiff
Wylde was unable to initiate a wire transfer or his intentions for initiating the wire transfer on the
following Monday. .
32. Gagosian Gallery admits the allegations in paragraph 32.

33. Gagosian Gallery states that paragraph 33 pleads a legal conclusion to which no
answer is required, but to the extent that an answer is required, Gagosian denies the allegations in
paragraph 34, but admits that Good later advised Plaintiff Wylde that Gagosian Gallery had
received a higher offer.
34. Gagosian Gallery denies the all~~ations in paragraph 34.

document number: NY23802/0009-US-1198834/3

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TANSEY CLAIMS

AS AND FOR A FIRST CAUSE OF ACTION - AGAINST GAGOSIAN
(Breach of

Express Waranty of

Title)

35. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.
36. Gagosian Gallery denies the allegations in paragraph 36, but admits that it merely

repeated to Wylde what its principal, Cowles, the seller, had said about the Tansey Painting.

37. Gagosian denies the allegations in paragraph 37, but admits that John Good
conveyed to Robert Wylde exactly what Charle~(Cowles had told Good, namely, that the Tansey

Painting was no longer being exhibited at the Met, had been returned to Cowles, could be sold to
Saffane and good, clear and unencumbered title to the Tansey Painting could be conveyed to

Plaintiff Safflane.

38. Gagosian Gallery denies the allegations in paragraph 38.
39. Gagosian Gallery denies the allegations in paragraph 39.

40. Gagosian Gallery denies the allegations in paragraph 40.
AS AND FOR A SECOND CAUSE OF ACTION - AGAINST COWLES
(Breach of

Express Waranty of

Title)

41. Gagosian Gallery's responses to paragraphs 35 -40 inclusive, are incorporated
herein by reference.

42. Gagosian Gallery states that paragraph 42 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 42, and admits that it was acting as Cowles's

agent but denies any liability to pay any portion of any damages awarded to Plaintiffs for the

misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the First Cause

document number: NY23802/0009-US-1198834/3

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of Action and any judgment entered by the Court for Safflane in connection with the First Cause of

Action should be entered exclusively against Cowles.

AS AND FOR A THIRD CAUSE OF ACTION - AGAINST GAGOSIAN
(Breach of

Implie4 Warranty of

Title)

43. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.

44. Gagosian Gallery denies the allegations in paragraph 44.

45. Gagosian Gallery denies the allegations in paragraph 45.
46. Gagosian Gallery denies the allegations in paragraph 46.
47. Gagosian Gallery denies the allegations in paragraph 47.
AS AND FOR A FOURTH CAUSE OF ACTION - AGAINST COWLES
(Breach of

Implied Waranty of

Title)

48. Gagosian Gallery's responses to paragraphs 43-47 inclusive, are incorporated
herein by reference.

49. Gagosian Gallery states that paragraph 49 is not addressed to Gagosian Gallery,
and therefore it does.

not require a response from them. To the extent that a response is required,

Gagosian Gallery denies the allegations in paragraph 49, and admits that it was acting as Cowles's

agent but denies any liability to pay any portion of any damages awarded to Plaintiffs for the
misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Third Cause
of Action and any judgment entered by the Cour for Saffane in connection with the Third Cause of

Action should be entered exclusively against Cowles.

AS AND FOR A FIFTH CAUSE OF ACTION - AGAINST GAGOSIAN
Merchantabilty)

(Breach ofImplied Warranty of

50. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.
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51. Gagosian Gallery denies the allegations in paragraph 51.
52. Gagosian Gallery denies the allegations in paragraph 52.
53. Gagosian Gallery denies the allegations in paragraph 53.
AS AND FOR A SIXTH CAUSE OF ACTION - AGAINST COWLES
Merchantability)

(Breach ofImplied Warranty of

54. Gagosian Gallery's responses to paragraphs 50-53 inclusive, are incorporated
herein by reference.

55. Gagosian Gallery states that paragraph 55 is not addressed to Gagosian Gallery,
and therefore it does not require a response fronithem. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 55, and admits that it was acting as Cowles's

agent but denies liability to pay any portion of any damages awarded to Plaintiffs for the
misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Fifth Cause
of Action and any judgment entered by the Court for Safflane in connection with the Fifth Cause of

Action should be entered exclusively against Cowles.

AS AND FOR A SEVENTH CAUSE OF ACTION - AGAINST GAGOSIAN
(Breach of Contract)

56. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.
57. Gagosian Gallery denies the allegations in paragraph 57 and respectfully refers the
Court to the invoice.

58. Gagosian Gallery admits the allegations in paragraph 58.

59. Gagosian Gallery denies the allegations in paragraph 59.
60. Gagosian Gallery denies the allegations in paragraph 60.

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AS AND FOR A EIGHTH CAUSE OF ACTION - AGAINST COWLES
(Breach of Contract)

61. Gagosian Gallery's responses to paragraphs 56-60 inclusive, are incorporated
herein by reference.

62. Gagosian Gallery states that paragraph 62 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 62, and admits that it was acting as Cowles's

agent but denies any liability to pay any portion of any damages awarded to Plaintiffs for the

misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Seventh
Cause of Action and any judgment entered by the Court for Safflane in connection with the Seventh

Cause of Action should be entered exclusively against Cowles.

AS AND FOR AN NINTH CAUSE OF ACTION - AGAINST GAGOSIAN
(Fraud)
63. Gagosian Gallery's responses tU-~~aragraphs 1-27 inclusive, are incorporated herein

by reference.

64. Gagosian Gallery denies the allegations in paragraph 64.
65. Gagosian Gallery denies the allegations in paragraph 65.

66. Gagosian Gallery denies the allegations in paragraph 66.
67. Gagosian Gallery denies the allegations in paragraph 67, and affirmatively avers

there was no "combined transaction" and that Plaintiffs have no standing to assert any claims
relating to the Roy Lichenstein which Gagosian Gallery, acting on behalf of Cowles, sold to a third
party.
68. Gagosian Gallery denies the allegations in paragraph 68, and affirmatively avers

there was no "combined transaction" and that Plaintiffs have no standing to assert any claims

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relating to the Roy Lichenstein which Gagosian Gallery, acting on behalf of Cowles, sold to a third
party.
69. Gagosian Gallery denies the allegations in paragraph 69, and affirmatively avers

there was no "combined transaction" and that Plaintiffs have no standing to assert any claims
relating to the Roy Lichenstein which Gagosian Gallery, acting on behalf of Cowles, sold to a third

pary.
70. Gagosian Gallery denies the allegations in paragraph 70.
AS AND FOR THE TENTH CAUSE OF ACTION - AGAINST COWLES
(Fraud)

71. Gagosian Gallery's responses to paragraphs 63-70 inclusive, are incorporated
herein by reference.

72. Gagosian Gallery states that paragraph 72 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 72, and admits that it was acting as Cowles's

agent but denies any liability to pay any portion of any damages awarded to Plaintiffs for the
misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Ninth Cause
of Action and any judgment entered by the Cour for Safflane in connection with the Ninth Cause of
Action should be entered exclusively against CQWles.
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AS AND FOR A ELEVENTH CAUSE OF ACTION - AGAINST GAGOSIAN
(Negligent Misrepresentation)

73. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.

74. Gagosian Gallery denies the allegations in paragraph 74.

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75. Gagosian Gallery denies the allegations in paragraph 75, but admits that Cowles, as
principal and seller, had a duty to impar accurate and correct information to the Plaintiffs.
-'

76. Gagosian Gallery denies the allt-gations in paragraph 76, and affirmatively avers

that Plaintiffs had the means to, and did, discover all of the information they now claim Gagosian
Gallery should have discovered.

77. Gagosian Gallery denies the allegations in paragraph 77.
78. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 78.
79. Gagosian Gallery denies the allegations in paragraph 79, and affirmatively avers

that the actions and/or omissions of Cowles and Plaintiffs were the sole and proximate cause of any

injuries Plaintiffs claim to have suffered.

80. Gagosian Gallery denies the allegations in paragraph 80.
, ~r
"

AS AND FOR A TWELFTH CAUSE OF ACTION - AGAINST COWLES
(Negligent Misrepresentation)

81. Gagosian Gallery's responses to paragraphs 73-80 inclusive, are incorporated
herein by reference.

82. Gagosian Gallery states that paragraph 82 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 82, and admits that it was acting as Cowles's

agent but denies any liability to pay any portion of any damages awarded to Plaintiffs for the

misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Eleventh

Cause of Action and any judgment entered by the Court for Saffane in connection with the
Y'

Eleventh Cause of Action should be entered excilisively against Cowles.

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AS AND FOR A THIRTEENTH CAUSE OF ACTION - AGAINST GAGOSIAN
New York Ars and Cultural Affairs Law § 13.03)
(Violation of

83. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.

84. Gagosian Gallery denies the allegations in paragraph 84.
85. Gagosian Gallery admits the allegations in paragraph 85.

86. Gagosian Gallery denies the allegations in paragraph 86.
AS AND FOR A FOURTEENTH CAVSE OF ACTION - AGAINST COWLES
New York Ars and Cultural Affairs Law § 13.03)
(Violation of

87. Gagosian Gallery's responses to paragraphs 83-86 inclusive, are incorporated
herein by reference.

88. Gagosian Gallery states that paragraph 88 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 88, and admits that it was acting as Cowles's

agent but denies any liabilty to pay any portion of any damages awarded to Plaintiffs for the
misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Thirteenth

Cause of Action and any judgment entered by the Cour for Saffane in connection with the
Thirteenth Cause of Action should be entered exk:lusively against Cowles.

AS AND FOR A FIFTEENTH CAUSE OF ACTION - AGAINST GAGOSIAN
(Unjust Enrichment)

89. Gagosian Gallery's responses to paragraphs 1-27 inclusive, are incorporated herein
by reference.

90. Gagosian Gallery denies the allegations in paragraph 90.
91. Gagosian Gallery denies the allegations in paragraph 91.
92. Gagosian Gallery denies the allegations in paragraph 92.
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93. Gagosian Gallery denies the allegations in paragraph 93.
AS AND FOR A SIXTEENTH CAUSE OF ACTION - AGAINST COWLES
(Unjust Enrichment)

94. Gagosian Gallery's responses to paragraphs 89-93 inclusive, are incorporated
herein by reference.

95. Gagosian Gallery states that paragraph 95 is not addressed to Gagosian Gallery,
and therefore it does not require a response from them. To the extent that a response is required,
Gagosian Gallery denies the allegations in paragraph 95, and admits that it was acting as Cowles's

agent but denies any liabilty to pay any portion of any damages awarded to Plaintiffs for the
misrepresentations made by Cowles, and therefore Cowles is vicariously liable for the Fifteenth
Cause of Action and any judgment entered by the Court for Safflane in connection with the
Fifteenth Cause of Action should be entered e*~i~sively against Cowles.

PRINCE CLAIMS BY WYLDE ONLY AGAINST GAGOSIAN ONLY

AS AND FOR A SEVENTEENTH CAUSE OF ACTION
(Repudiation and/or Breach of Contract)

96. Gagosian Gallery's responses to paragraphs 1-10 and 28-34 inclusive, are
incorporated herein by reference.

97. Gagosian Gallery denies the allegations in paragraph 97.
98. Gagosian Gallery denies knowledge or information sufficient to admit or deny the

allegations in paragraph 98.

99. Gagosian Gallery denies the allegations in paragraph 99, but admits that Gagosian
;.;,"

Gallery subsequently sold the Prince Painting to'1aother buyer for a higher price.

100. Gagosian Gallery denies the allegations in paragraph 100.

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AS AND FOR AN EIGHTEENTH CAUSE OF ACTION
(Deceptive and Misleading Business Practices -GBL §§ 349 et. seq.)

101. Gagosian Gallery's responses to paragraphs 1-10 and 28-34 inclusive, are
incorporated herein by reference.

102. Gagosian Gallery denies the allegations in paragraph 102.
103. Gagosian Gallery denies the allegations in paragraph 103, but admits that Gagosian
private transactions.

Gallery is an art gallery that sells works of ar in

104. Gagosian Gallery denies the allêgations in paragraph 104.

105. Gagosian Gallery denies the allegations in paragraph 105.
AS AND FOR A NINETEENTH CAUSE OF ACTION
(Unjust Enrichment)

106. Gagosian Gallery's responses to paragraphs 1-10 and 28-34 inclusive, are
incorporated herein by reference.

107. Gagosian Gallery denies the allegations in paragraph 107.

108. Gagosian Gallery denies the allegations in paragraph 108.
109. Gagosian Gallery denies the allegations in paragraph 109.
110. Gagosian Gallery denies the allegations in paragraph 110.

AS AND FOR A TWENTIETH CAUSE OF ACTION
Good Faith and Fair Dealing)

(Breach of

the Implied Covenant Of

111. Gagosian Gallery's responses to paragraphs 1-10 and 28-34 inclusive, are
incorporated herein by reference.

112. Gagosian Gallery denies the allegations in paragraph 112.
113. Gagosian Gallery denies the allegations in paragraph 113.
AS AND FOR A TWENTY -FIRST CAUSE OF ACTION
(Specific Performance)

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'"

114. Gagosian Gallery's responses to paragraphs 1-10 and 28-34 inclusive, are
incorporated herein by reference.
115. Gagosian Gallery denies the allegations in paragraphl15.

116. Gagosian Gallery denies the allegations in paragraph 116.
117. Gagosian Gallery denies the allegations in paragraph 117.

FIRST AFFIRMATIVE DEFENSE
118. Gagosian Gallery alleges that the Second Amended Complaint, and each purported

cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against
Gagosian upon which relief may be granted.

SECOND AFFIRMATIVE DEFENSE
119. Gagosian Gallery alleges that Pla~ntiffs' contract claims on the Tansey Painting

cannot be maintained against Gagosian Gallery because Gagosian Gallery, as Cowles's agent, acted

on behalf of its fully disclosed principal, Cowles, to faciltate the sale of the Tansey Painting by
Cowles to Plaintiffs.

THIRD AFFIRMATIVE DEFENSE
120. Gagosian Gallery alleges that Plaintiffs' claims cannot be maintained because

Cowles enlisted Gagosian Gallery's help in finding a Buyer for the Tansey Painting and then
consigned the Tansey Painting to Gagosian Gallery on an exclusive basis, and therefore, Gagosian
the Tansey Painting to Safflane.

Gallery was at all times acting as Cowles agent during the sale of

121. Cowles offered Gagosian Gallery an exclusive to sell the Tansey Painting on his

behalf, but the title, possession and control of th~tTansey Painting remained at all times with
Cowles until it was purchased by Wylde.
the Tansey Painting.

122. Gagosian Gallery consulted Cowles throughout the sale of

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123. At all times during the relevant period, Cowles held himself out to be the true
owner of the Tansey Painting.
124. Gagosian Gallery did not make any payments to Cowles for the Tansey Painting

the Tansey Painting from Robert Wylde.

until it received the money from the sale of

125. Gagosian Gallery only received a commission for helping Cowles find a buyer for
the Tansey Painting.

FOURTH AFFIRMATIVE DEFENSE
126. Gagosian Gallery alleges that Plaintiffs' fraud claim is foreclosed because

Plaintiffs acted for the themselves in conducting such due diligence as they deemed necessary and
appropriate in making the decision to purchase the Tansey Painting, including communicating

the Tansey Painting from Cowles. Plaintiffs'

directly with Cowles concerning their purchase of

fraud claim is foreclosed for the further reason that Plaintiffs have not alleged justifiable reliance,
and Plaintiffs' fraud claim is duplicative of

their breach of contract claim.

FIFTH AFFIRMATIVE DEFENSE
127. Gagosian Gallery alleges that Plaintiffs' negligent misrepresentation claim
concerning the Tansey Painting canot be maintKined because (1) Plaintiffs did not reasonably rely

on any representation made by Gagosian Gallery because Gagosian Gallery merely repeated what
its principal, Cowles, the seller told it; (2) Plaintiffs did not have a special relationship with
Gagosian Gallery; and (3) Plaintiffs' negligent misrepresentation claim is duplicative of

Plaintiffs'

breach of contract claim.

SIXTH AFFIRMATIVE DEFENSE
128. Gagosian Gallery alleges that Plaintiffs' claims are foreclosed because Plaintiffs
were on actual notice of

Cowles gift ofthe Tansey Painting to the Met as of July 28, 2009.

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SEVENTH AFFIRMATIVE DEFENSE
~ .

129. Gagosian Gallery alleges that Plaintiffs' claims are foreclosed because Plaintiffs

had the means to, and did, discover all material facts relating to ownership of the Tansey Painting.

EIGHTH AFFIRMATIVE DEFENSE
130. Gagosian Gallery alleges that Plaintiffs' claims cannot be maintained because

Wylde, a seasoned collector, does his own research and due diligence before purchasing works of
ar, and in the case of

the Tansey Painting, decided to purchase it after having seen it in Cowles'

apartment and confirming with Cowles that it was Cowles's to sell.

NINTH AFFIRMATIVE DEFENSE
131. To the extent that Defendants made misrepresentations to Plaintiffs with regard to
, (,

the title of the Tansey Painting, such statements:(Were made by Cowles to Gagosian Gallery for the
express purose of

inducing Plaintiffs to purchase the Tansey Painting.

TENTH AFFIRMATIVE DEFENSE
132. Gagosian Gallery alleges that

Plaintiffs' New York

Ars and Cultural Affairs Law §

13.03 claim cannot be maintained because that statute does not provide for civil liabilty.

ELEVENTH AFFIRMATIVE DEFENSE
133. Gagosian Gallery alleges that all of Plaintiffs' causes of action for repudiation

and/or breach of contract and unjust enrichment canot be maintained because there was no binding

contract between the Plaintiffs and Gagosian Gallery with respect to the Prince Painting.

TWEL TH AFFIRMATIVE DEFENSE
\ .~ \l. \

134. Gagosian Gallery alleges that Plaintiffs has not stated a claim for deceptive and

misleading business practices under N ew York General Business Law § 349 because a private
transaction does not give rise to a violation of

New York General Business Law § 349.
18

document number: NY23802/0009-US-1198834/3

THIRTEENTH AFFIRMATIVE DEFENSE
133. Plaintiffs are judicially estopped from recovering from Gagosian Gallery by reason

of the inconsistent facts the have alleged in the Met v. SajJane action.

Dated: New York, New York
August 8, 2011

Respectfully submitted,

WITHERS BERGMAN LLP
By:
Holls Gonerka Bar (HB-8955)

Brian Dunefsky (BD-3554)
Dara G. Hamerman (DH-1591)
Azmina J asani (AJ -4161 )
430 Park Avenue, 10th Floor

New York, NY 10022-3505
Phone: [phone]
Fax: [phone]

Attorneys for Defendant Gagosian Gallery, Inc.

.,..,

, .Í9
document number: NY23802/0009-US-I 198834/3

,~ . ~':
,,:.15.

CERTIFICATE OF SERVICE
The Undersigned hereby certifies that a copy ofthe foregoing was served upon the
following via ECF on this the 8 day of August, 2011 :
Aaron Richard Golub, Esq.
Aaron Richard Golub, Esquire, P.C.
34 East 6ih Street, 3rd Floor

New York, New York 10065
Attorneys for plaintiffs, Saffane Holdings Ltd., and Robert Wylde

/j~ (~

COUNSEL FOR DEFENDANT GAGOSIAN
GALLERY INC.
Ht)Ilis Gonerka Bar (HB-8955)
Brian Dunefsky (BD-3554)

Dara G. Hammerman (DH-1591)
Azmina J asani (AJ -4161)
Withers Bergman LLP
430 Park Avenue, 10th Floor

New York, New York 10022
(P) 212-848-9800

(f) 212-848-9888

20
document number: NY23802/0009-US- 1198834/3