The Metropolitan Museaum of Art and Jan Cowles v. Safflane Holdings, Ltd. et al

Filing 11

ANSWER to 1 Complaint with JURY DEMAND. Document filed by Safflane Holdings, Ltd., Robert Wylde.(Golub, Aaron)

AARON RICHARD GOLUB, ESQUIRE, PC
Attorneys for Third-Party 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
THE METROPOLITAN
JAN COWLES,

MUSEUM

11-CV-3143

(DLC)

OF ART AND
ANSWER AND
AFFIRMATIVE

DEFENSES

Plaintiffs,
-againstSAFFLANE HOLDINGS
ROBERT WYLDE,

LTD., and

Defendants.

--------------------------------------x
Defendants
ROBERT WYLDE
ESQUIRE,

PC, as and for their Answer

1.

Gallery,

LTD.

("Safflane")

and

AARON RICHARD GOLUB,

to the Complaint

dated May

as follows:
Any and all allegations

to Safflane

First Amended
captioned

HOLDINGS

("Wylde"), by their attorneys,

10, 2011, allege

prejudice

SAFFLANE

and Wylde's

Complaint

Safflane

claims and defenses

in the

Ltd. and Robert Wylde v. Gagosian

District

Civ. No. 11-CIV-1679

("Safflane v Gagosian

action").

circumstances

such claims and defenses

herein,

are made without

dated June 10, 2011 in the action

Holdings

Inc., Southern

herein

(DLC)

Due to the facts and

-1-

in the Safflane v

Gagosian

action may be, perforce,

and defenses

herein

inconsistent

or may be asserted

with the claims

in the alternative.

A:N'SWER
2.
paragraphs

Defendants

deny the allegations

contained

in

11, 25, 28 and 30 of the Complaint.
3.

sufficient

Defendants

deny knowledge

to form a belief

allegations

in paragraphs

27, and paragraph
4.

or information

as to the truth or falsity of the

6 through

8, 12 through

20, 26 through

29 of the Complaint.

Defendants

Painting

in its entirety

knowledge

or information

deny that "Plaintiffs

have owned the

since at least December
sufficient

truth or falsity of the remaining

2001" and deny

to form a belief

allegations

as to the

in paragraph

2 of

the Complaint.
5.
sufficient

in paragraph

the knowledge

Painting

3, 2009 in an arrangement

3 of the Complaint

Safflane,

sold to Defendants
involving

to defendant

the Tansey

Safflane

of defendant

that "Thereafter,

of either Plaintiff,

Charles

Inc." and admit that the Tansey

defendant

control

or information

as to the truth or falsity of the

or consent

was purportedly

Gallery,

deny knowledge

to form a belief

allegations
without

Defendants

Painting

and is presently
Safflane.

-2-

the

on or about August
and Gagosian

Painting

was sold to

was thereafter

delivered

in the care, custody and

6.
sufficient

Defendants

deny knowledge

to form a belief

allegations

in paragraph

no knowledge

as to the truth or falsity of the

4 of the Complaint

of any purported

and deny the remaining

or information

that "Plaintiffs

sale of the Painting

allegations

in paragraph

had

until 2010"

4 of the

Complaint.
7.
in pertinent

The allegations
part, declare

of paragraph

the relief which plaintiffs

seeking

to which no responsive

waiving

this objection,

entitlement

Defendants

Defendants

of the Complaint

admit

that defendant

of the Tansey Painting

Defendants
belief

pleadings

are required.

Without

deny the Plaintiffs'

deny knowledge

the allegations

21

the

with GG in July 2009 but

or information

21 of the Complaint

in paragraph

Wylde began discussing

as to the truth or falsity

paragraph

are

to such relief.
8.

purchase

5 of the Complaint,

that

sufficient

to form a

of the allegations

in

"Plaintiffs

were unaware

of

deny the allegations

in paragraph

22

these discussions."
9.

Defendants

of the Complaint
inspected

that "Upon information

the painting

deny knowledge

at Charles!

or information

home on July 27, 2009" and

sufficient

the truth or falsity of the remaining
22 of the Complaint.

-3-

and belief, Mr. Wylde

to form a belief

allegations

as to

in paragraph

10. Defendants
of the Complaint
purported

deny the allegations

that "Upon information

price of $2,500,000

Painting

payment

on or before August

was delivered

knowledge

to defendant

or information

SUfficient

truth or falsity of the allegations
Complaint

that "Plaintiffs

and transfer
January

of possession

Safflane

to Safflane,

Safflane

5, 2009, the Tansey

Safflane,

and otherwise

deny

to form a belief as to the
in paragraph

were unaware

23 of the

of the purported

of the Painting

sale

at all times prior to

2010."
11.

Defendants

admit the allegations

of the Complaint

that "Upon information

of the purported

sale to Defendants,

primary

to Defendant

on or around July 31, 2009"

except admit that GG issued an invoice
completed

23

and belief, Gagosian

to convey and sell the Painting

for a purchase

in paragraph

or exclusive

worldwide

including

and belief,

Gagosian

representative

(IiMr.Tanseyll) and, therefore,

in paragraph

possessed

Mr. Tansey's

works,

Plaintiffs,"

except deny that the Tansey

Painting

Defendants

deny the allegations

the Painting

did not contact

-4-

record,"

by

was owned by

of paragraph

the Plaintiffs I co-ownership

either

of

Safflane.

in the remainder

being a matter of public

the Defendants

knowledge

and its ownership

at the time of the sale to defendant

that "Despite

the

of Mark Tansey

Plaintiffs

of the Complaint

at the time

was either

detailed

the Painting

24

24

of

except admit that

of the Plaintiffs

prior to

the sale of the Tansey Painting
information

sufficient

falsity of whether

and deny knowledge

to form a belief

GG contacted

either

or

as to the truth or
of the Plaintiffs

prior

to the sale of the Tansey Painting.
ANSWER TO COUNT I
12.

For Defendants'

Complaint,

Defendants

Defendants'

answers

answer

to paragraph

repeat and incorporate

to paragraphs

1 through

31 of the

by reference
30 of the Complaint

as if fully set forth herein.
13.
paragraphs

Defendants

32 through

deny the allegations

part,

declare

of paragraph

34 of the Complaint,

the relief which plaintiffs

seeking

to which no responsive

waiving

this objection,

entitlement

in

33 of the Complaint.

14. The allegations
in pertinent

contained

pleadings

Defendants

are

are required.

Without

deny the Plaintiffs'

to such relief.
ANSWER TO COUNT II
15.

For Defendants'

Complaint,

Defendants

Defendants'

answers

answer

to paragraph

repeat and incorporate

to paragraphs

1 through

35 of the

by reference
34 of the Complaint

as if fully set forth herein.
16. Defendants
paragraphs

36 through

deny the allegations

39 of the Complaint.

-5-

contained

in

AS AND FOR A FIRST AFFIRMATIVE
17.

The Complaint

DEFENSE

fails to state a cause of action

upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE
18.

The plaintiffs

the applicable

doctrine

are barred

from any recovery

the applicable
limitation,

The plaintiffs
doctrine

by

of laches.

AS AND FOR A THIRD AFFIRMATIVE
19.

DEFENSE

are barred

of estoppel

DEFENSE

from any recovery

including,

by

without

the following:

i.

Loaning the Tansey Painting in or about November,
2005 to CC who is a well known New York City
merchant who deals in contemporary works of art,
pursuant to a one year loan agreement which
expired on or about November 4, 2006;

ii.

Vesting and/or clothing CC with possession and/or
apparent authority to dispose of the Tansey
Painting, and/or the ability to transfer the
Tansey Painting with good title;

iii. Failing to demand or seek the return of the
Tansey Painting from ce for almost three years
after the loan agreement expired; and
iv.

Failing to object to ee's custody of the Tansey
Painting for almost three years after the loan
agreement expired.

AS AND FOR A FOURTH AFFIRMATIVE
20.
the applicable

The plaintiffs
doctrine

are barred

of waiver.

-6-

DEFENSE

from any recovery

by

AS AND FOR A FIFTH AFFIRMATIVE
21.
defendants

The plaintiffs

Safflane

are barred

DEFENSE

from any recovery

as

and/or Wylde are good faith purchasers

value and accordingly

received

for

good title to the Tansey

Painting.
AS AND FOR A SIXTH AFFIRMATIVE
22.
defendants

The plaintiffs

Safflane

course of business
Tansey

are barred

DEFENSE

from any recovery

and/or Wylde are buyers
and accordingly

in the ordinary

received

good title to the

Painting.
AS AND FOR A SEVENTH AFFIRMATIVE
23.

Safflane,

Pursuant

as a purchaser

to New York U.C.C.
of the Tansey

title which its transferor
the event the transferor
power

as

to transfer

§

2-403(1),

Painting,

had or had power

had voidable

DEFENSE
defendant

acquired

to transfer

title,

all

and in

the transferor

a good title to a good faith purchaser

had

for

value.
AS AND FOR AN EIGHTH AFFIRMATIVE
24.
entrusting

Pursuant

of possession

to New York U.C.C.
of the Tansey

§

DEFENSE

2-403(2),

painting

the

to CC, who is a

merchant

who deals in goods of that kind, gave CC power to

transfer

all rights of the entruster

course of business.

-7-

to a buyer

in the ordinary

AS AND FOR A NINTH AFFIRMATIVE
25.

The plaintiffs

they acquiesced

are barred

in ee's retention

DEFENSE

from any recovery

of possession

as

of the Tansey

Painting.
AS AND FOR A TENTH AFFIRMATIVE
26.
they released
the Tansey

The plaintiffs
the Tansey

are barred

Painting

The plaintiffs

defendant

with the Tansey
his disclosed

28.

AFFIRMATIVE

are barred

Wylde as defendant

Painting,

ee to sell

principal

defendant

The plaintiffs

any legally cognizable
was caused,
culpable

DEFENSE

from any recovery

Wylde's

role in dealing

was limited to that of an agent for

AS AND FOR A TWELFTH

omissions,

as

Painting.

27.

suffered

from any recovery

to ee and enabled

AS AND FOR AN ELEVENTH

against

DEFENSE

Safflane.

AFFIRMATIVE

are barred

DEFENSE

from any recovery

injury or damage plaintiffs

either
conduct,

on the part of third parties

as

may have

in whole or in part, by the acts,
negligence

and/or want of due care

for whom defendants

are not

responsible.
AS AND FOR A THIRTEENTH
29.

The plaintiffs

any legally cognizable

AFFIRMATIVE

are barred

DEFENSE

from any recovery

injury or damage plaintiffs
-8-

as

may have

suffered

was caused,

omissions,

culpable

either
conduct,

on the part of plaintiffs
recovery

in whole or in part, by the acts,
negligence

and plaintiffs

or their recovery

is reduced

AS AND FOR A FOURTEENTH
30.
defendants
grounds,

The plaintiffs

recovery

Plaintiff

JC in 1992 and/or
49% interest

AFFIRMATIVE

sale of the Tansey

in 2001

(respectively,

in the Tansey

Painting),

in the Answer herein,

York U.C.C.

§

2-403(1}

and

prospective

100% remainder

from CC to

a 50% interest

and/or a

is and was null and void
as The Metropolitan

including

(2), allegedly
interest

from any

Painting

("Met"), subject to the other affirmative

asserted

as

DEFENSE

("JC") is barred

and of no force or effect whatsoever
of Art

from any recovery

in good faith, on reasonable

Jan Cowles

as the purported

DEFENSE

course of business.

AS AND FOR A FIFTEENTH
31.

from

thereby.

are barred

in the ordinary

are barred

AFFIRMATIVE

were at all times acting

and/or

and/or want of due care

without

Museum

defenses
limitation,

New

then owned a

in the Tansey Painting

on or

about June 14, 1988.
AS AND FOR A SIXTEENTH
32.
purported
and/or

JC is barred

sale of the Tansey

in 2001

interest,

Plaintiff

(respectively,

in the Tansey

AFFIRMATIVE

Painting

from any recovery

-9-

as the

from CC to JC in 1992

a 50% interest

Painting),

DEFENSE

and/or a 49%

is and was unlawful

as the

Met, subject
Answer

to the other affirmative

herein

403(1) and

including

without

(2), allegedly

a prospective

remainder

defenses

limitation

owned prior

interest

asserted

in the

New York U.C.C.

thereto

§

2-

(in 1992 and 2001)

in the Tansey

Painting

on or

about June 14, 1988.
AS AND FOR A SEVENTEENTH
33.
purported
and/or

(respectively,

in the Tansey

information

of the alleged

(2) the transaction
dual capacity

AS AND FOR AN EIGHTEENTH
34.
purported
and/or

interest,

Plaintiff

(1) CC controlled

including

(respectively,

in the Tansey

setting the price;
(3) CC acted in a

AFFIRMATIVE

Painting

DEFENSE

from any recovery

as the

from CC to JC in 1992

a 50% interest

Painting),

all

and JC.

JC is barred

sale of the Tansey

in 2001

was less than arm's

lacked good faith; and

on behalf of himself

and/or a 49%

is and was void as, upon

CC and JC as:

transaction

as the

from CC to JC in 1992

such transaction

between

DEFENSE

from any recovery

a 50% interest

Painting),

and belief,

length transaction
aspects

JC is barred

sale of the Tansey Painting

in 2001

interest,

Plaintiff

AFFIRMATIVE

and/or a 49%

is and was a sham transaction

and is void.
AS AND FOR A NINTEENTH
35.
purported

Plaintiff

AFFIRMATIVE

JC is barred

sale of the Tansey

Painting

-10-

DEFENSE

from any recovery

as the

from CC to JC in 1992

and/or in 2001
interest,
Painting

(respectively,

in the Tansey

a 50% interest

Painting),

was never delivered

is and was void as the Tansey

to JC.

AS AND FOR A TWENTIETH
36.
JC's purported
10% interest,

The plaintiffs
donation

and/or a 49%

AFFIRMATIVE

are barred

DEFENSE

from any recovery

to the Met of a 20% interest

in the Tansey

Painting,

as

and/or a

in respectively,

2003 and

2004, is null and void as JC did not have the power or the right
to transfer

to the Met any interest

in the Tansey

Painting

in

2003 or 2004.
AS AND FOR A TWENTY-FIRST
37.
JC's purported
10% interest,

The plaintiffs
donation

are barred

sham transaction

limitation
interests

from any recovery

as

and/or a

in respectively,

2003 and

of Federal gift tax laws and is and was a

and is void.

AS AND FOR A TWENTY-SECOND

the applicable

DEFENSE

to the Met of a 20% interest

in the Tansey Painting,

2004, is a violation

38.

AFFIRMATIVE

The plaintiffs
doctrine

in the Tansey

are barred

of unclean

that the purported

hands,

between

inter alia, evaded and/or defeated
including

-11-

DEFENSE

from any recovery
including

sales and/or

Painting

of the State of New York,

AFFIRMATIVE

by

without

gifts of fractional

CC, JC and the Met,

in whole or in part the laws
without

limitation

the New

York State Department

of Taxation

and Finance's

sales taxes

rules and regulations.
AS AND FOR A TWENTY-THIRD
39.

The plaintiffs

upon information
fractional

and belief,

interests

AFFIRMATIVE

are barred

from any recovery

the purported

in the Tansey

without

Painting

Finance's

between

the New York State Department

in

including

of Taxation

and

sales taxes rules and regulations.
AS AND FOR A TWENTY-FOURTH
40.

Plaintiffs'

claims

denial of use and possession
as they are speculative,
meet the jurisdictional

AFFIRMATIVE
for damages

of the Tansey

impossible

DEFENSE
arising

Painting

to calculate

requirements

AS AND FOR A TWENTY-FIFTH

AFFIRMATIVE

DEFENSE

are barred

has maintained

a relationship

with JC that allowed

regarding

Painting

the subject

are barred

of this Court.

The plaintiffs

JC's behalf

from the

and fails to

41.

Tansey

CC, JC and

and violated

the laws of the State of New York,

limitation

as,

sales and/or gifts of

the Met, inter alia, evaded and/or defeated
whole or in part

DEFENSE

from any recovery

transactions

and such transactions

as CC

CC to act on

concerning

the

are void.

JURY DEMAND
Defendants

demand

a jury for all claims and defenses

herein.

-12-

stated

WHEREFORE,

Defendants

a.
b.
contained

Dismissing
Denying

the Complaint

in its entirety:

each demand and prayer

for relief

in the Complaint:
c.

reasonable

demand judgment:

Awarding

attorney's
d.

Defendants

costs, disbursements

fees; and

Granting

to the Defendants

such other and further

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

Dated:

and

of this action,

together

with

and reasonable

fees.

New York, New York
June 27, 2011
Respectfully

submitted,

s/Aaron Richard Golub
AARON RICHARD GOLUB, ESQUIRE, P.C.
Attorneys for Defendants and
Third-Party Plaintiffs
34 East 67th Street - 3rd Floor
New York, New York 10065
ph: 212-838-4811
fx: 212-838-4869
ARG 6056
TO:

PATTERSON BELKNAP WEBB & TYLER LLP
Attorneys for The Metropolitan Museum
1133 Avenue of the Americas
New York, New York 10036
[phone]
SNR DENTON LLP
Attorneys for Jan Cowles
1221 Avenue of the Americas
New York, NY
10020-1089
[phone]

-13-

of Art

====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.

Richard
Golub,[sc:jurre, .C.
p
-I=loOT'

OT'k
10065

67-!:hb-eet.3,.J
S

y

OF SETTLEMENT===

New
YOl'k,
New

34 [ad

ACIT'On

Office and Post Office Address

Attorney for

To
Attorney( s) for

===NOTICE

Richard
Golub,[~(.jurre, .C.
p

Yours, etc.

M.

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

Attorney for
Ao:ron

34 .(;Gld 67th Sh>eet - 3,.J -I=loOT'

New
YOT'k,
New
YOT'k
10065

(DLC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ll-CIV-3143

THE METROPOLITAN MUSEUM OF ART AND
JAN COWLES,
Plaintiffs,
-against-

SAFFLANE HOLDINGS LTD. AND ROBERT WYLDE,
Defendants.

ANSWER AND AFFIRMATIVE DEFENSES

[Gln 67th Sh-eet .3.J
'21'2·838·4811

-I=loOT'

New OT'k, YOT'k
Y
New
10065

34

AGlT'On Richard
Golub,[~Clui1'e,

p.C.

Attorneys for Defendants
Office and Post Office Address, Telephone

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

Attomey(s) for