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

Filing 81

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Default Judgment as to Charles Cowles. Document filed by Gagosian Gallery, Inc. (Hammerman, Dara) Modified on 12/6/2011 (db).

WITHERS BERGMA LLP
Holls Gonerka Bart (HB-8955)
Brian Dunefsky (BD-3554)

Dara G. Hammerman (DH-1591)
Azmina Jasani (AJ-4161)
430 Park Avenue, 10th Floor

New York, New York 10022
212.848.9800 (p)

212.848.9888 (f)
Attorneysfor Defendant/Third-Party Plaintif

Gagosian Gallery, Inc.

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

SAFFLANE HOLDINGS LTD., and
ROBERT WYLDE,
Plaintiffs,

Case No.: 11 CIV 1679 (DLC)(MHD)

-against -

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

GAGOSIAN GALLERY, INC.,
Third-Pary Plaintiffs,
-against-

CHARLES COWLES,
Third-Pary Defendant.

--- - ---- - -- --- ---- ------------ --- - ------- --- ---- --- --- -- )(

DEFENDANT/THIRD-P ARTY PLAINTIFF'S MEMORANDUM OF LAW
IN SUPPORT OF THE MOTION FOR DEF AUL T JUDGMENT

document number: NY23802/0009-US- i 3 i 3130/6

TABLE OF CONTENTS

Table of Authorities........................................................................................................................ ii

PRELIMINARY STATEMENT.....................................................................................................1
STATEMENT OF FACTS..............................................................................................................1

Procedural History...................................................................................................................3
ARGUMENT...................................................................................................................................4
i. Gagosian Gallery Has a Viable Cause of Action Against Cowles for Indemnification ......4

II. This Cour Should Enter A Default Judgment Against The Defaulting Third-Party

Defendant.............................................................................................................. ...............6

A. Cowles Has Wilfully Defaulted............................................ ............................ ..........6
B. Cowles Has No Meritorious Defense By Virtue Of

His Non-Responsiveness ...........7

C. Gagosian Gallery Wil Be Prejudiced If A Default Judgment Is Not Entered ............7

III. Gagosian Gallery Is Entitled To Recover Damages Plus Attorney's Fees and Costs .........8
the Safflane Damages
Relating to Tansey Painting From Cowles as Set Forth in Exhibit J ...........................8

A. Gagosian Gallery Is Entitled To Recover a Percentage of

B. Gagosian Gallery Is Entitled To Recover Legal Fees and Costs From Cowles In The

Amount Of $703,217.55 ..............................................................................................9

C. Gagosian Gallery is Entitled to Pre-Judgment and Post-Judgment Interest..............l 0
D. An Inquest is Not Required........,....................................... ................ ................. ...... .11
CONCLUSION............................................................................................................................. .11

document number: NY23802/0009-US-1313130/6

TABLE OF AUTHORITIES
Page(s)
CASES

Amusement Indus. v. Stern,
693 F. Supp. 2d 301 (S.D.N. Y. 2010)............... ...................... ....... ................... .........................5
Au Bon Pain Corp. v. Artect, Inc.

653 F. 2d61 (2d. Cir. 1981 ).......................... ........................... ........... ........................................7

Chapel v. Mitchell,
84 N. Y.2d 345 (1994)................................................................................................................9
Estate of Lorette Jolles Shefner v. Tuchman,

2009 U.S. Dist. LE)(S 117273 (S.D.N.Y. 2009)........................................................6, 7, 8, 11
Fed Ex Customer Information Services Inc., v. Leslee Sports, Inc.,
2010 U.S. Dist. LE)(S 34849 (N.D.N.Y. 2010) .....................................................................10
Fustok v. Conticommodity Servs., Inc.,
873 F.2d 38 (2d Cir. 1989).......................................................................................................11
Gomez v. Preferred Rentals,

1997 U.S. Dist. LE)(IS 19222 (S.D.N.Y. 1997)..................................................................8, 10
House of Diamonds, Inc. v. Borgioni LLC,
2009 U.S. Dist. LE)(S 76089 (S.D.N.Y. 2009)....................................................................6, 7

Mason Tenders Dist. Council v. Duce Contstr. Corp.,
2003 U.S. Dist. LE)(S 6881 (S.D.N.Y. 2003) ..........................................................................6
Panigeon v. Allance Navigation Line, Inc.,
1997 U. S. Dist. LE)(S 12239 (S.D.N. Y. 1997)...... ...................... ............................ ................5

Schwarz-Liebman Textiles v. Last Exit Corp.,
815 F. Supp. 106 (S.D.N. Y. 1992) .......................... ..................................................................7
Shaw v. NY. State Dep 't of

Civil Service,

168 F .3d 610 (2d Cir. 1999)..... .................................. ................................................................6

Transmodal Corp. v. Pianin,
2010 U.S. Dist. LE)(S 65412 (S.D.N.Y. 2010)........................................................................4
STATUTES

28 U . S.C. § 1961.................................................................................................. ....................10, 11

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OTHER AUTHORITIES

Fed R. Civ. P. 55..............................................................................................................................1
F ed.R. Civ.P. 55(b) and Rule 55 .2(b) ..................................................... ...... ............... .......... ...........4

Rule 55(b )(2) of the Federal Rules of Civil Procedure....................................................................6
Rule 5 5( a)............................................................................................................................ .............7

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PRELIMINARY STATEMENT
Defendant/Third-Pary Plaintiff Gagosian Gallery ("Third Party Plaintiff' or "Gagosian
Law, together with the Affidavit of

Gallery") submits this Memorandum of

Hammerman ("Hamerman Aff.") and the exhibits anexed thereto, in support of

Dara G.

its motion,

judgment against Charles Cowles ("Cowles" or

pursuant to Fed R. Civ. P. 55, for a default

"Third-Pary Defendant"). Gagosian Gallery properly served Cowles, but he did not answer or
otherwise respond to the Third-Party Complaint. Gagosian Gallery now seeks default judgment
against Cowles for indemnification.

STATEMENT OF FACTS
The third-pary action by Gagosian Gallery against Cowles arises out of claims Plaintiffs
Safflane Holdings, Ltd. and Robert Wylde (the "Safflane Plaintiffs") asserted in the underlying
action against Gagosian Gallery for allegedly fraudulent and negligent misrepresentations as to

the title and ownership of a painting by Mark Tansey entitled, "The Innocent Eye Test" (the

"Tansey Painting") that Cowles sold to the Safflane Plaintiffs through Gagosian Gallery. In its
Third-Party Complaint, Gagosian Gallery sets forth causes of action against Cowles for
indemnification and contribution. Hammerman Aff. Ex. C.

For approximately 30 years, Gagosian Gallery engaged in art transactions with Cowles, a
well-known New York City art dealer and collector of contemporary art, and/or the Charles

Cowles Gallery without incident. Hammerman Aff. Ex. M at Good Tr. 51, 84, 88. In or about
late July 2009, Cowles contacted John Good ("Good"), a Gagosian Gallery employee, and asked

Good if Gagosian Gallery could help him find a buyer for the Tansey Painting. Id at Good Tr.

49-50,61; Hammerman Aff. Ex. E at Cowles Tr. 193-94. Because the Tansey Painting has
attained an "iconic status" in the ar world, and had been on display at the Met, Good asked
Cowles whether the Met had an interest in it. Hammerman Aff. Ex. M at Good Tr. 49-50.
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Cowles replied that he had an agreement with the Met's director that the Tansey Painting would

be returned to Cowles as the owner if it were no longer being xhibited at the Met. Id. As such,
the Tansey Painting had been properly returned to Cowles by the Met, that Cowles was rightfully
in possession of

the Tansey Painting, and it was now his to sell. Id at Good Tr. 49-50, 247.

On the basis of the representations made by Cowles, Good agreed to assist Cowles in

finding a buyer for the Tansey Painting and Cowles consigned the Tansey Painting to Gagosian
Gallery for sale. Id at Good Tr. 61, 180, 197.

Good thereafter contacted Robert Wylde to determine whether he might be interested in

purchasing the Tansey Painting from Cowles. Hammerman Aff. Ex. N at Wylde Tr. 57. During
their discussion of the Tansey Painting, Good conveyed to Wylde exactly what Cowles, the

the Tansey Painting. Hamerman Aff. Ex.

seller, had told him concerning Cowles ownership of

N at Wylde Tr. 60-61 and Ex. M at Good Tr. 238. Good thereafter arranged for Wylde to view
the Tansey Painting at Cowles' Gallery, which was located at the same premises as Cowles'
residence. Id at Good Tr. 58.

On or about July 27, 2009, Wylde, accompanied by Good, viewed the Tansey Painting in
the gallery space of Cowles' residence, and confirmed that the Tansey Painting was in Cowles'

possession. Id at Good Tr. 58,238; Hammerman Aff. Ex. N at Wylde Tr. 64-65. During the
viewing at Cowles' Gallery, Cowles reassured and represented directly to Wylde that the Tansey
Painting was his (Cowles) to sell. Id at Good Tr. 240; Hammerman Aff. Ex. N at Wylde Tr. 6768.

Satisfied by the representations made by Cowles during the viewing, Wylde, shortly after

the viewing, told Good to let Cowles know that he would purchase the Tansey Painting for $2.5

milion. Hammerman Aff. Ex. N at Wylde Tr. 81. On or about August 5, 2009, Wylde, through

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aranged

Saffane, paid the $2.5 milion for the Tansey Painting, and Gagosian Gallery thereafter

for its delivery from Cowles' home gallery to plaintiffs. Hamerman Aff. Ex. 0 & P.
In or about March 2010, Gagosian Gallery learned for the first time that Cowles did not
have the authority to sell the Tansey Painting, as he had represented he did, and that the Met,

through gifts made by Cowles and his mother, held a 31 % undivided interest in it. Hammerman
Aff. Ex. M at Good Tr. 175.

When confronted with this, Cowles readily acknowledged that this was all "his mistake."

Specifically, Cowles admitted in his deposition taken on July 13,2011 that the following
statements attributed to him in an article that was recently published in the New York Times

discussing this lawsuit, are true and were made by him:

Mr. Cowles. . . (s )aid that he considered the whole dispute his mistake. He said
that after the museum returned the painting to him "(I) didn't even think about
whether the met owned par of
it or not." "(A)nd one day (I) saw it on the wall
and thought, 'hey, (I) could use money' and so (I) decided to sell it," he added.
"and now it's a big mess."
Hammerman Aff. Ex. Q & E at Cowles Tr. 191-193.
Procedural Historv

On March 10, 2011, Gagosian Gallery was named as a Defendant in the Saffane Action,

which sought to recover, inter alia, $6 milion from Gagosian Gallery on claims relating to the

Tansey Painting. Hammerman Aff. Ex. A. On May 10,2011, the Metropolitan Museum of Ar
(the "Met") and Jan Cowles fied a lawsuit against Plaintiffs in the Saffane Action for a
the Tansey Painting and for

declaratory judgment that the Met is the sole and exclusive owner of

its immediate return. Hammerman Aff. Ex. B.

On July 15,2011, Gagosian Gallery fied the Third-Party Complaint against Cowles

the Cour

seeking indemnification. Hammerman Aff. Ex. C. On July 15,2011, the Clerk of

issued a Summons in a Civil Action directed to Cowles. Hammerman Aff. Ex. D. On October
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6,2011, Cowles was personally served with the Summons and Third-Party Complaint at 84

Mercer Street, New York, New York 10012, the address to which he testified was his at his
deposition on July 13, 20l 1. Hamerman Aff. Exs. E & F at Cowles Tr. 4. On October 31,

2011, an Affidavit of Service was fied with the Court. Hammerman Aff. Ex. G. Cowles's
deadline to answer the Third-Pary Complaint was October 27,2011. However, Cowles failed to
answer or appear or move with respect to the Third-Party Complaint and the time to do so has
the Court issued a Certificate acknowledging

expired. On November 2,2011, the Clerk of

Cowles'

Default. Hammerman Aff. Ex. H.

On October 12,2011, Gagosian Gallery entered into a settlement agreement with the
Safflane Plaintiffs in the Safflane Action, in which Gagosian Gallery agreed to pay the Saffane
Plaintiffs the amount set forth in the Settlement Agreement, the terms of which are confidentiaL.

Hammerman Aff. Ex. i.
Gagosian Gallery now seeks a default judgment against Cowles as to liability on its
indemnification claim in favor of

Gagosian Gallery pursuant to Fed.R.Civ.P. 55(b) and Rule

New York for failing to answer the Third-

55 .2(b) of the Local Rules of the Southern District of

Pary Complaint.

ARGUMENT
I. Gagosian Gallery Has a Viable Cause of Action Against Cowles for Indemnification

"Indemnity is predicated on 'vicarious liability without actual fault on the part of the
proposed indemnitee' . . . (and it) shifts all liability to the negligent pary." Transmodal Corp. v.

Pianin, 2010 U.S. Dist. LE)(IS 65412, *2 (S.D.N.Y. 2010). To state a claim for implied
indemnification, a pary must allege a special relationship with the potential indemnitee that

gives rise to an implied duty to indemnify. Id at *3. A principal-agency relationship is a special
relationship that can give rise to such an implied duty to indemnify. Amusement Indus. v. Stern,
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693 F. Supp. 2d 301 (S.D.N.Y. 2010) (holding that an agent-principal relationship is sufficient to
support a claim for implied indemnification).

When Cowles first approached Gagosian Gallery, Cowles made clear that he wanted
Gagosian Gallery to assist Cowles with finding a buyer for the Tansey Painting on his behalf.

See Hammerman Aff. Ex. M at Good Tr. 49-50, 61; Hamerman Aff. Ex. E at Cowles Tr. 19394. As such, Gagosian Gallery was at most acting as an agent for Cowles and canot be held
responsible for Cowles' failure to deliver good and unencumbered title. In acting as Cowles
the

agent, Gagosian Gallery relied on the statements made by Cowles concerning the title of

Tansey Painting, and relayed these statements to the Saffane Plaintiffs. See Hammerman Aff.
Ex. M at Good Tr. 238. However, Cowles' representations concerning the title of

the Tansey

Painting were, by his own admission, false, and he has readily admitted that he considered this
entire dispute "his mistake." Hamerman Aff. Exs. R & E at Cowles Tr. 191-193.
Cowles owed a duty as the seller of

the

Tansey Painting to deliver good and

unencumbered title to the Saffane Plaintiffs. Thus, Cowles' negligent misrepresentations were
the sole proximate cause of the damages suffered by the Safflane Plaintiffs. By virtue of
Cowles' misrepresentations, Gagosian Gallery was exposed to liability from the Safflane

Plaintiffs, and was compelled to pay damages to the Saffane Plaintiffs that Cowles should have

paid based solely on his own wrongful acts. See Panigeon v. Allance Navigation Line, Inc.,
New Yorkv. Keene Corp., 132

1997 U.S. Dist. LE)(S 12239 (S.D.N.Y. 1997), quoting City of

Misc. 2d 745, 786 (Sup. Ct. N.Y. Co. 1986) ("The law implies a contract to reimburse in cases of
unjust enrichment 'where payment by one person is compelled, which another should have

made. "'). As such, Gagosian Gallery is entitled to common law indemnification from Cowles
based upon their agent-principal relationship for the percentage of the damages it paid to the

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Safflane Plaintiffs relating to the Tansey Painting, including costs and disbursements, together

with attorneys' fees and the expenses incured therein.
II. This Court Should Enter A Default Judgment

A2:ainst The Defaultin2: Third-Party Defendant
A cour may enter a

the Federal Rules of

judgment of default pursuant to Rule 55(b)(2) of

Civil Procedure. In deciding whether to enter a default judgment, the Cour may consider the
following three factors: "1) whether the defendant's default was wilful; 2) whether defendant
prejudice the non-defaulting

has a meritorious defense to plaintiffs claims; and 3) the level of

party would suffer as a result of

the denial of

the motion for default

judgment." House of

Diamonds, Inc. v. Borgioni LLC, 2009 U.S. Dist. LE)(IS 76089, *15 (S.D.N.Y. 2009); Mason

Tenders Dist. Council v. Duce Contstr. Corp., 2003 U.S. Dist. LE)(S 6881, *2 (S.D.N.Y. 2003).

The entry of a default judgment is left to the "sound judicial discretion" of the Cour. Shaw v.
NY. State Dep't of Civil Service, l68 F .3d 610, 615 (2d Cir. 1999).
A. Cowles Has Wilfully Defaulted

Where, as here, a party has failed to answer a complaint and has been entirely

unresponsive, their continued failure is considered wilful, and the first ground for a default

judgment has been met. See House of Diamonds, Inc. v. Borgioni LLC, 2009 U.S. Dist. LE)(S

76089 (S.D.N.Y. 2009). As stated in detail above, Cowles has failed to answer or respond in
any way to the Third-Party Complaint, or otherwise make any appearance in this action by the

deadline imposed under the Federal Rules of Civil Procedure. Cowles has also failed to provide

any explanation for his failure to answer or respond. Such failures render Cowles wilfully in

default concerning the causes of action against him. As such, the Cour may enter a default
judgment against him. See id,' Estate of Lorette Jolles Shefner v. Tuchman, 2009 U.S. Dist.

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LE)(IS 117273, * 3 (S.D.N.Y. 2009) ("The Default Defendants' non-appearance in the action

and failure to respond to the Complaint indicate wilful conduct.").
His Non-Responsiveness

B. Cowles Has No Meritorious Defense By Virte Of

Since Cowles has not filed an Answer or otherwise responded to the Third-Pary
Complaint, he can offer no meritorious defense to Gagosian Gallery's allegations. See House of

Diamonds, at * 15-16 (finding no evidence of a defense where defendants did not fie an Answer

or otherwise respond to the Complaint). To the contrary, by defaulting, Cowles has admitted that

he is liable to Gagosian Gallery for common law indemnification. See Estate ofShefner, at *3
(plaintiffs' allegations deemed admitted where default defendants presented no defense to the

Court and therefore Court was unable to determine whether Default Defendants had a
meritorious defense to allegations). See also Au Bon Pain Corp. v. Artect, Inc. 653 F. 2d61, 65
(2d. Cir. 1981) (Upon a defendant's default, the Cour should accept as true all of

allegations of

the factual

the complaint, except those relating to damages); Schwarz-Liebman Textiles v.

judgment entered on well-

Last Exit Corp., 815 F. Supp. 106, 107 (S.D.N.Y. 1992) ("default

pleaded allegations of a complaint establishes a defendant's liabilty"). As such, Cowles' failure

to proffer any defense and his admission of

the the well-pleaded allegations of

the Third-Party

Complaint warrant entry of a default judgment against him.
C. Gagosian Gallery Wil Be Preiudiced If A Default Judgment Is Not Entered

The final factor for the Court to consider is whether Gagosian Gallery would be

prejudiced if the motion for default were to be denied. Here, denying this motion would be
prejudicial to Gagosian Gallery, as Cowles has failed to appear or respond to any of Gagosian
Gallery's allegations, and pursuant to Rule 55(a), the Court may enter default due to this failure.

See Fed. R. Civ. P. 55(a). As such, there are no additional steps available to Gagosian Gallery to
obtain relief in this Court. See House of Diamonds, at * 16 (holding that denying motion for
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default judgment would be prejudicial as there were no additional steps available to plaintiff to

secure relief.); See also Estate ofShefner, at *3 (finding that denying the motion for default
judgment would be unfairly prejudicial to plaintiffs where defendants failed to appear or respond

to allegations and the Cour may enter default due to this failure). For the foregoing reasons,
default judgment should be entered.
III. Gae:osian Gallerv Is Entitled To Recover Damae:es Plus Attorney's Fees and Costs

the Saffane Damages
Relating to Tansey Painting From Cowles as Set Forth in Exhibit J

A. Gagosian Gallery Is Entitled To Recover a Percentage of

For the reasons set forth above, Cowles is liable to Gagosian Gallery for common law
indemnification, and thus, must indemnify Gagosian Gallery for the damages Gagosian Gallery

has paid to the Safflane Plaintiffs pursuant to the Settlement Agreement entered into on October
12,2011 between Gagosian Gallery and the Safflane Plaintiffs (the "Saffane Damages").

1 See

Gomez v. Preferred Rentals, 1997 U.S. Dist. LE)(IS 19222 (S.D.N.Y. 1997) (indemnitee is

entited to recover any damages paid to the injured party). The amount paid by Gagosian Gallery
under the Settlement Agreement to the Safflane Plaintiffs serves to compensate the Safflane
Plaintiffs for the damages that it suffered due to Cowles's misrepresentations regarding his

supposed title to the Tansey Painting. See Hammerman Aff. ir 16 & Ex i. The amount paid does

not exceed the amount prayed for in the Saffane Plaintiffs' Complaint. Cowles is liable to

1 The Safflane Plaintiffs demanded in their Second Corrected Amended Complaint a total of $6 milion
in damages with respect to the Tansey Painting and a total of $1.1 milion in damages with respect to a
separate painting by Richard Prince entitled "Milionaire Nurse" (the "Prince Painting"). As such, only
82% of the settlement paid by Gagosian Gallery was attributable to the Tansey Painting (that percentage
representing the amount demanded in connection with the Tansey Painting compared to the total amount
of damages demanded by the Saffane Plaintiffs in the Safflane Action.). Cowles is thus liable for the
the full amount of damages paid by
amount set forth in Hammerman Aff. Ex. J, which is 82% of
Gagosian Gallery to the Plaintiffs in the Safflane Action relating specifically to the Tansey Painting.

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Gagosian Gallery for 82 percene of the total amount paid by Gagosian Gallery to Plaintiffs in the

Saffane Action for the Tansey Painting (the "Saffane Damages"). Thus, this Action seeks
judgment for 82% of the Saffane Damages, which have been set forth in an Exhibit prepared by

Gagosian Galleryentitled "Summary of Safflane Damages" (the "Summary"). See Hammerman
Aff. ir 17 & Ex J.
B. Gagosian Gallery Is Entitled To Recover Legal Fees and

Costs From Cowles In The Amount Of$703.217.55
Gagosian Gallery is also entitled to indemnification for the legal fees, costs and expenses

it incured in responding to and defending against the Saffane Plaintiffs' claims concerning the
Tansey Painting. See Chapel v. Mitchell, 84 N.Y.2d 345 (1994) (holding that common-law right
to indemnification against the party actually at fault encompasses the right to recover attorneys'

fees, costs and disbursements incurred in connection with defending the suit brought by the

injured party); Gomez v. Preferred Rentals, 1997 U.S. Dist. LE)(S 19222 (S.D.N.Y. 1997)
(Under New York law, an indemnitee is entitled to recover the legal expenses incured in
connection with defending the suit brought by the injured party); Fed Ex Customer Information
Services Inc., v. Leslee Sports, Inc., 2010 U.S. Dist. LE)(IS 34849 (N.D.N.Y. 2010) (holding that

attorney's fees are available under a theory of common-law indemnification in connection with

defending the main claim). Withers Bergman's contemporaneous time entries for this matter
reflect that the total amount of fees charged in connection with defending Gagosian Gallery

2 The Safflane Plaintiffs demanded in their Second Corrected Amended Complaint a total of $6 milion
in damages with respect to the Tansey Painting and a total of $1,1 milion in damages with respect to a
separate painting by Richard Prince, entitled, "Milionaire Nurse" (the "Prince Painting"). As such, only
82% of
the damages paid by Gagosian Gallery was attributable to the Tansey Painting (that percentage
representing the amount demanded in connection with the Tansey Painting compared to the total amount
of damages demanded by the Saffane Plaintiffs in the Safflane Action.). Cowles is thus liable for the
amount set forth in Exhibit J, the full amount of damages paid by Gagosian Gallery to the Plaintiffs in the
Safflane Action for the Tansey Painting.

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against the Saffane Action since August 31, 2010 amounted to $841,420.35.3 Hammerman Aff.

these fees, which

Ex. K. However, Cowles is only liable to Gagosian Gallery for 82%4 of

amounts to $689,964.69.

In addition, Gagosian Gallery also incurred a total of$16,162.03 in costs and expenses in

connection with defending the Saffane Action. Hammerman Aff. Ex. L. However, as discussed
above, Cowles is only liable to Gagosian Gallery for 82% of the costs and expenses attributable
to Gagosian Gallery's defense in the Safflane Action, which amounts to $13,252.86.5
Hammerman Aff. Ex. L.

C. Gagosian Gallery is Entitled to Pre-Judgment and Post-Judgment Interest
Gagosian Gallery is also entitled to recover pre-judgment and post-judgment interest in

accordance with 28 U.S.C. § 1961. Gagosian Gallery is entitled to post-judgment interest on any
award of

attorney's fees, costs and

judgment and ending on the date of

judgment commencing on the date the Clerk's office enters
payment. See Estate ofShefner, at *6. Gagosian Gallery is

also entitled to pre-judgment interest from the date of the settlement with the Safflane Plaintiffs,
October 12,2011, until the entry of

judgment. See id. Pre-judgment interest should be awarded

at the rate set forth in 28 U.S.C. § 1961.

3 Withers Bergman's time entries include work performed on behalf of Gagosian Gallery just prior to the
commencement of this lawsuit, at which point the parties were working to resolve this matter in the hopes
of avoiding litigation.

4 Since 82% of the damages paid by Gagosian Gallery was attributable to the Tansey Painting,
the fees charged to Gagosian Gallery, which represents
the amount of fees charged by Withers Bergman with respect to the Tansey Painting.
5 See supra, fn. 3. For purposes ofthis motion, Withers Bergman reduced the total disbursements
Gagosian Gallery is only seeking 82% of

and costs by $1200 to account for disbursements and costs charged in connection with the ThirdPary Action.

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D. An Inquest is Not Required
An inquest is not required in this case as it is "not necessary for the District Court to hold
a hearing, as long as it ensure(s) that there (is) a basis for the damages specified in a default

judgment." Fustok v. Conticommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). A "court
may rely on detailed affidavits or documentary evidence" when evaluating the fairness of the
proposed sum. Id. As evidenced by the facts set forth in the attached Hammerman Affidavit and

its accompanying exhibits, this Cour has ample basis for granting a default judgment in the
amount set forth herein.

CONCLUSION
respectfully requests that the

For the foregoing reasons, Defendant/Third-Party Plaintiff

Court enter a default judgment against Cowles for the amount set forth in the Summary

submitted to the Cour as Exhibit J, together with pre-judgment and post-judgment interest, the
legal fees incurred by Gagosian Gallery in defending the Safflane Action and the costs and

disbursements of the Saffane Action.
Dated: New York, New York
December 5, 2011
Respectfully submitted,

By: Æ-~ ~
WITHERS BERGMAN LLP

Hollis Gonerka Bar (HB-8955)
Brian Dunefsky (BD-3554)
Dara G. Hammerman (DH-1591)

AZlina N. Jasani (AJ-4161)
430 Park Avenue, 10th Floor
New York, NY 10022-3505
Phone: [phone]
Fax: [phone]

Attorneys for Defendant/Third-Party
PlaintifGagosian Gallery, Inc.

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