Brown v. Kay et al

Filing 15

OPINION & ORDER re: 5 MOTION to Dismiss Complaint filed by The Himan Brown Revocable Trust, The Himan Brown Charitable Trust and Richard Kay: For the reasons set forth within, plaintiff's complaint is dismissed, with prejudice. The Clerk of the Court is directed to terminate the motion at docket entry number five and to close this case. (Signed by Judge Paul A. Engelmayer on 2/9/2012) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
BARRY K. BROWN,
:
:
Plaintiff,
:
:
-v:
:
RICHARD KAY, AS PRELIMINARY EXECUTOR OF :
THE ESTATE OF HIMAN BROWN, and THE HIMAN :
BROWN REVOCABLE TRUST, AS RESTATED,
:
RICHARD KAY, TRUSTEE, and THE HIMAN BROWN :
CHARITABLE TRUST, RICHARD KAY, TRUSTEE,
:
:
Defendants.
:
:
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11 Civ. 7304 (PAE)
OPINION AND ORDER

PAUL A. ENGELMAYER, District Judge:
This case involves claims relating to the art collection of the late Himan Brown
(“Himan”), a well-known producer of radio and television programs. Plaintiff Barry Brown
(“Barry”) is Himan’s long-estranged son. Barry brings claims of fraud and conversion against
the executor of Himan’s estate (“the Estate”) and against two trusts created by Himan. In
essence, Barry alleges that Himan subverted a provision of a long-ago separation agreement
under which Himan and his ex-wife had provided that, upon the death of the latter of the two of
them, Barry and his sister were to be bequeathed 34 specific works of art.
Defendants 1 move to dismiss the Complaint for failure to state a claim, for a variety of
different reasons, under Federal Rule of Civil Procedure 12(b)(6), and, to the extent matters

1

Defendants are (1) Richard Kay, as preliminary executor of the estate of Himan Brown; (2) The
Himan Brown Revocable Trust, as restated, Richard Kay, Trustee (“the Revocable Trust”); and
(3) The Himan Brown Charitable Trust, Richard Kay, Trustee (“the Charitable Trust”).
[1]

outside the pleadings are considered, for summary judgment, pursuant to Fed. R. Civ. P. 12(d)
and 56. Defendants also move for dismissal under Fed. R. Civ. P. 19, for failure to join Barry’s
sister and the estate of his mother as necessary parties. For the reasons set forth herein, the Court
dismisses both claims in the Complaint with prejudice.
I.

BACKGROUND 2
A. Factual Background to Plaintiff’s Claims
During a 65-year career that resulted in his induction in 1990 into the National Radio

Hall of Fame, Himan produced more than 30,000 radio programs for radio networks and

2

Except as otherwise noted, the Court’s account of the facts of this case is drawn from the
Complaint and from documents incorporated therein. To the extent the Court has resolved this
case on the basis of Rule 12(b)(6), its decision is limited to the Complaint and documents
incorporated therein. To the extent the Court has converted the motion to one for summary
judgment pursuant to Rules 12(d) and 56 and ruled on that basis, it has also considered two
categories of information supplied by the parties. These are: (1) official pleadings, court
decisions, and a hearing transcript relating to a 2002 lawsuit unsuccessfully brought by Barry
against Himan, relating in part to the artwork at issue in this case; and (2) a 2010 “Release
Agreement” resolving claims between Barry, on the one hand, and the Estate and the Revocable
Trust, on the other, also relating to the artwork at issue. For the most part, these materials have
been supplied to the Court as attachments to the affidavit of defense counsel Michael B. Kramer,
Esq., (“Kramer Aff.”); in addition, plaintiffs have supplied the full transcript of an April 11, 2003
hearing relating to the 2002 lawsuit, of which defendants had submitted only an excerpt. See
Pl.’s Mem. of Law in Opp. to Defs.’ Mot. to Dismiss (“Pl.’s Mem.”) Ex. B. The parties,
although disputing the legal effect of these materials on the current case, do not dispute their
authenticity. For the limited purpose of addressing defendants’ motion to dismiss for failure to
join a necessary party, the Court has also considered an affidavit that Barry submitted in
connection with the 2002 lawsuit, which plaintiff has supplied to the Court. See Pl.’s Mem. Ex.
A.
For purpose of explanatory background but not as a basis of its decision, the Court has reviewed
and cited select factual averments in the Kramer Affidavit, the Supplemental Affidavit of
Michael B. Kramer, Esq. (“Kramer Supp. Aff.”), and the Affidavit of Richard L. Kay (“Kay
Aff.”), all submitted by defendants. Finally, the Court has taken note of the affidavit of
plaintiff’s counsel Malcolm S. Taub, Esq. (“Taub Aff.”). For the most part, the Taub affidavit
recapitulates verbatim, and swears to the accuracy of, the averments in plaintiff’s Complaint; Mr.
Taub does not, however, set forth the basis for his knowledge of these facts.
[2]

syndication. He also produced television series, major fundraising events, and film
documentaries. He donated money and art to numerous museums and colleges. Compl. ¶ 1.
In 1933, Himan married Mildred Brown (“Mildred”). The couple had two children:
Barry, the plaintiff in this case, born in 1934, and Hilda (now Hilda Brown Lapidus) (“Hilda”),
born in 1936. Compl. ¶¶ 1, 15; Kramer Aff. ¶ 7 & Ex. F (hereinafter, “Separation Agreement”),
at 1.
In 1967, Himan and Mildred divorced. In connection with the divorce, on October 24,
1967, they entered into a separation agreement. Compl. ¶¶ 19-22; Kramer Aff. ¶¶ 12-13;
Separation Agreement. Both parties were represented by counsel in connection with that
agreement. See Separation Agreement, Ex. A. 3
The Separation Agreement contained specific provisions relating to the couple’s artwork.
It provided that all art in Himan’s apartment at 285 Central Park West was “his sole and
exclusive property.” Separation Agreement ¶ 3. It also appended two exhibits (Exhibits C and
D), which are lists of artwork. Exhibit C consists of 11 single-spaced pages listing artwork; the
agreement declared Himan “the sole and exclusive owner of the works of art” set out in Exhibit
C. Id. ¶ 4.
Exhibit D to the Separation Agreement, which is central to this litigation, consists of two
single-spaced pages listing 34 of the works of art appearing in Exhibit C. The Exhibit D works
include pieces attributed to such masters as Degas, Modigliani, Picasso, and Renoir. Separation
Agreement Ex. D. The agreement provided that Mildred had the right during her lifetime to
possess the Exhibit D artwork. The agreement prohibited her from selling or moving this
artwork. Id. ¶ 4(i).
3

Mildred was represented by Roy Cohn, Esq., and his law firm, Saxe, Bacon & Bolan. Himan
was represented by Goldwater & Flynn.
[3]

Importantly, for the purposes of this litigation, the Separation Agreement obliged Himan
to maintain a will bequeathing the Exhibit D artwork to Mildred if he predeceased her, and to
Barry and Hilda, per stirpes, if he did not. Symmetrically, the Separation Agreement obliged
Mildred to maintain a will providing that, if Himan predeceased her, the Exhibit D artwork
would be bequeathed to Barry and Hilda, per stirpes. Id. ¶ 4(ii). Thus, the Separation
Agreement provided that upon the death of the latter of their parents, Barry and Hilda were to be
bequeathed the Exhibit D artwork.
In 1974, Mildred died. Compl. ¶ 25. Under the Separation Agreement, Himan thus
regained the right to possess the 34 pieces of artwork listed on Exhibit D. Separation Agreement
¶¶ 3-4. Himan thereafter possessed the Exhibit D artwork until his death. Compl. ¶ 25.
In June 2010, Himan died. Compl. ¶ 2; Kramer Aff. ¶ 19 & Ex. D. Himan’s purported
last will and testament (dated October 20, 2004) named Richard Kay as executor; the Surrogate’s
Court of New York County has appointed Kay preliminary executor of the Estate. Contrary to
the terms of the Separation Agreement, the will did not bequeath anything to Barry or Hilda.
Instead, it bequeathed Himan’s entire estate to Radio Drama Network, a private charitable
foundation. Barry has interposed objections to his late father’s will. Compl. ¶¶ 3-5, 28; Kay
Aff. ¶ 34 & Ex. E. 4
B. Plaintiff’s Claims of Fraud and Conversion
Barry brings two claims against the Estate – in Count One, for fraud, and in Count Two,
for conversion. Both relate to the Exhibit D artwork.

4

Defendants represent that Himan’s three preceding wills (executed in 2001, 2002, and 2003)
also had left nothing to Barry. Kramer Aff. ¶ 34.
[4]

1. The fraud claim
Barry’s fraud claim alleges that, before entering into the Separation Agreement,
Himan had represented to Mildred that the works of art listed in Exhibit D were authentic,
original pieces that had “significant value,” and that “this value would ultimately be received by
her children, including Plaintiff.” Compl. ¶¶ 35, 37, 57; id. ¶ 41. Himan also sent an appraiser
to Mildred’s home, in 1971, to appraise the Exhibit D artwork; the Complaint alleges that this
functioned as a further representation to Mildred that the Exhibit D artwork had substantial
value. Id. ¶¶ 42-43. On the basis of Himan’s representations, Mildred entered into the
Separation Agreement. Id. ¶¶ 37, 59. 5
In fact, the Complaint alleges, Himan’s representations to Mildred were false. A
significant number of the artworks listed in Exhibit D were “forgeries” and of “little or no
value.” Id. ¶¶ 45, 50. As a result of Himan’s misrepresentations, however, Mildred never
discovered that these artworks were forgeries; Barry did not discover this until December 2010.
Id. ¶ 45. Himan’s misrepresentations were reckless or intentional and were designed to deceive
Mildred and, eventually, to deprive his children of valuable assets. Id. ¶¶ 27, 58, 60.
As to specific artwork, the Complaint alleges, 26 of the 34 artworks listed in Exhibit D
are currently in storage in Long Island City, New York. None of these are authentic and they
have “little or no value.” Id. ¶¶ 47-48, 50. Two others were distributed to Mildred’s kin after
her death – a collage by Barry’s sister, Hilda, which was returned to her, and a “Portrait of
Mildred,” which was given to Mildred’s granddaughter, Barrie Brown. Id. ¶ 51(a)-(b). Another
(“Rocks on Riviera,” by Armand Guillaumin) was sold at Christie’s on November 4, 2010, for

5

Barry alleges that Himan made the same representation to him and to “hundreds” of
unspecified others. Compl. ¶ 38.
[5]

$120,000, with the proceeds divided between Barry and his sister. Id. ¶ 51(c). Four others are
missing, including artworks attributed to Edgar Degas, Chaim Gross, and August Renoir. Id. ¶
52. 6 The final artwork, “La Maternite,” a 1921 work by Pablo Picasso, is authentic. Id. ¶ 54.
Barry alleges, upon information and belief, that the “replacement value” of the missing
Renoir, Degas, and Gross pieces is $755,000; and that the value of the originals of the 26 forged
artworks, would be approximately $26,998,750. Id. ¶¶ 53, 55-56. Barry alleges injury to
himself in his capacity as a beneficiary of the Separation Agreement; he seeks damages for
himself from the Estate of “not less than $27,754,750.” Id. ¶ 63. Barry also seeks, in the event
that the Estate is unable to satisfy such a judgment, to recover the same amount from the
Revocable Trust and the Charitable Trust. Barry alleges that during his lifetime, Himan had
transferred “the major bulk of his estate” to the Revocable Trust. Id. ¶ 64. Barry makes no
allegations relating to the Charitable Trust.
2. The conversion claim
Barry’s conversion claim is an exercise in pleading in the alternative: It postulates facts
contrary to those alleged in the fraud claim. The conversion claim begins:
In the event that it is conceivable that Himan Brown did deliver original and
authentic Artworks to Mildred Brown at the time they entered into the Separation
Agreement, then he subsequently, upon information and belief, had such
Artworks copied so that Plaintiff would be left with worthless artworks at the time
of Himan Brown’s death.
Compl. ¶ 66.
To this end, the conversion claim alleges, Himan “retook possession” of the authentic
Exhibit D artworks after Mildred’s death, id. ¶ 67, and thereafter “creat[ed] forgeries” that he

6

The four are: (a) the bronze “Dancer” sculpture, by Degas; (b) “Woman Standing,” by Gross;
(c) “Seated Girl,” by Renoir; and (d) “Head of Woman,” an unattributed bronze African mask.
Id. ¶ 52.
[6]

knew would eventually “depriv[e] Plaintiff of his ownership interest in the Artworks.” Id. ¶ 73.
The claim that the Exhibit D artworks were authentic but replaced by “worthless” works after
Mildred’s death is based solely on “information and belief.” Barry does not allege when any
such alleged forging was done, save to assert that in 2006, Himan sought to engage an artist
named Stephen Gaffney to produce a painted replica of a single, unspecified artwork. Id. ¶ 68.
The conversion count seeks the same damages (no less than $27,754,750) as does the
fraud count, against the same three defendants. Id. ¶ 77. The conversion count does not contain
any factual allegations regarding the Revocable Trust or the Charitable Trust.
C. Defendants’ Motions to Dismiss
Defendants move to dismiss Barry’s fraud and conversion claims on multiple grounds.
Because some require consideration of materials outside the pleadings, defendants ask that the
motion to dismiss, where appropriate, be converted into one for summary judgment. Mem. of
Law in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) 4 n.5; Reply Mem. of Law in Further
Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Reply Mem.”) 1 n.1. Specifically, defendants bring to
the Court’s attention two prior events bearing on Barry’s legal rights with respect to the Exhibit
D artwork.
First is a 2002 lawsuit that Barry brought in New York State Supreme Court in
Manhattan against Himan (“2002 Lawsuit”). There, Barry made claims, among others, relating
to the ownership of the Exhibit D artwork. In connection with that lawsuit, Defendants submit
Barry’s Complaint in that lawsuit, the Court’s order dismissing the claims in that lawsuit, and a
transcript of oral argument explaining the basis of the dismissal of one such claim. Second is an
August 2010 agreement (“2010 Release Agreement”) between the Estate, the Revocable Trust,
and Barry. That agreement resolved (and released the Estate and Revocable Trust as to) all of

[7]

Barry’s claims as to the Exhibit D artwork, subject to Barry’s reservation of rights to bring
claims in three discrete factual scenarios. Although both the 2002 Lawsuit and the 2010 Release
Agreement are, to say the least, highly relevant to his present claims, Barry’s Complaint does not
disclose any of these salient legal events. 7
The relevant facts, as revealed by defendants’ undisputed submissions, are laid out
below.
1. The 2002 Lawsuit
In 2002, Barry sued Himan, then age 91, in New York State Supreme Court. See
Kramer Aff. ¶¶ 21-25; id. Ex. A (Complaint in Barry Brown v. Himan Brown, hereinafter, “2002
Compl.”). 8 The 2002 Complaint sought various money damages and injunctive relief against
Himan, including seeking damages sufficient to vindicate what Barry claimed were promises of
lifetime support and inheritance from Himan. In the 2002 Complaint, Barry made a wide range
of damaging and even scandalous allegations against Himan. These included that parts of
Himan’s art collection had been “forcibly acquired by the Nazi SS during World War II” from
7

In its only reference to such matters, Barry’s Complaint states – in what appears to be an
oblique reference to the 2002 Lawsuit – that “[t]he failure to bequeath the Artwork to Himan
Brown’s children necessitated a costly legal battle between Plaintiff and Himan Brown’s
‘executor,’ Richard Kay, who had been Himan Brown’s estate lawyer since at least the early
1970s.” Compl. ¶ 30. The Complaint says nothing about the outcome of that “legal battle” and
does not refer, even obliquely, to the 2010 Release Agreement. Although Barry, in his
memorandum of law opposing the motion to dismiss, disputes the legal effect of the 2002
Lawsuit and the 2010 Release Agreement on his current claims, Barry does not dispute the fact
of these two events or the authenticity of any of the documents submitted by defendants.
8

As context for the 2002 Lawsuit, defendants (including Richard Kay, Himan’s executor)
explain that Himan, who previously had provided “ample financial support to Barry,” in 1999
decided to scale back his gifts to Barry. Kramer Aff. ¶ 20. After that point, Himan and Barry
became completely estranged. Barry thereupon began to make “outrageous claims” against his
father, including filing the 2002 Lawsuit, “in an attempt to extort financial concessions.” Id. ¶¶
4(vii), 8, 20. Defendants describe the present lawsuit as “the latest in a decade-long string of
vindictive, frivolous, and ill-founded actions” brought by Barry, first against his father, and now
against his father’s estate and trusts. Id. ¶ 3.
[8]

“Jewish individuals,” 2002 Compl. ¶ 5; that in 1967, during the Browns’ divorce, Himan
“acknowledged that he was taking unfair advantage of Mildred,” id. ¶ 9; that Himan privately
promised that, if Barry agreed to remain neutral during the divorce, Himan would leave Barry
and his sister all of his artwork and his entire estate and would make Barry the executor of his
estate, id. ¶ 10. Barry also alleges that in 1998, when he was age 64, he had “commenced
recovering memories of childhood molestation and assaults on himself as well as on Hilda,”
carried out by Himan, as well as “memories of other improper sexual acts and abuse involving
the defendant”; Barry also recalled Himan’s “‘loaning’ the plaintiff [Barry] to a male friend for
the performance of homosexual acts and molestation.” Id. ¶ 18.
Himan’s art collection – including the Exhibit D artworks – feature prominently in the
2002 Complaint. As pertinent here, the 2002 Complaint alleged that under the Separation
Agreement, Barry and his sister were to “receive a significant number of pieces of artwork upon
the death of their parents,” id. ¶ 14, but that “in breach of the separation agreement and the
parties’ agreements, defendant [Himan] sold certain pieces of artwork that belonged to plaintiff,”
id. ¶ 21.
The first cause of action in the 2002 Complaint alleged breach of contract based on
Himan’s alleged breach of the Separation Agreement; it argued that Barry was a third-party
beneficiary of that agreement and demanded that Himan “be compelled to execute a will in
accordance with the terms of the separation agreement” and enjoined from transferring any
interest, right, or title in the artwork at issue. Id. ¶¶ 23-26. The second cause of action alleged
that Himan, by selling certain artwork and ceasing financial support to Barry, had breached an
oral agreement with Barry under which Himan’s “entire art collection” (necessarily including the
Exhibit D artwork) and his entire estate would be left to Barry; it sought money damages and an

[9]

injunction against transferring the artwork. Id. ¶¶ 28-34. The fifth cause of action alleged
promissory estoppel, asserting that in return for Barry’s promise not to sue Himan or “go[]
public” about the alleged “acts of sexual and physical abuse,” Himan had promised, inter alia,
“to give plaintiff [Barry] the complete family art collection.” Id. ¶¶ 47-49. The seventh cause of
action, for a constructive trust, alleged, in part, that Himan held money “received from the sale of
certain of the artworks as described herein” that properly belonged to Barry, and sought such
money and his father’s artwork. Id. ¶¶ 57-63. The eighth cause of action, seeking damages for
anticipatory breach, alleged that Himan had stated that he would not comply with the divorce
decree, had renounced his obligations under that agreement, and had sold “certain artwork which
was promised to plaintiff.” Id. ¶¶ 65-69. The 2002 Complaint ended by demanding judgment
and damages including “the monies received from the sale of the artwork”; “possession of the
remaining artwork”; and an order enjoining Himan “from transferring, assigning, or
encumbering any interest, right, or title in any of the artwork.” Id. at 14.
By written order dated June 20, 2003, the Supreme Court granted summary judgment to
Himan and dismissed with prejudice all of Barry’s claims relating to artwork. See Kramer Aff. ¶
4(ii) & Ex. B. 9 On November 4, 2004, that order, including the dismissal with prejudice, was
affirmed, without any modification, by a unanimous panel of the Appellate Division, First
Department, of the Supreme Court. See Kramer Aff. ¶ 4(iii) & Ex. C. The Appellate Division’s
three-paragraph opinion noted that, to the extent Barry sought enforcement of the Separation
9

At argument on April 11, 2003, the Supreme Court had, sua sponte, dismissed the first cause of
action, based on an alleged breach of the Separation Agreement. To the extent that Barry sought
injunctive relief requiring Himan “to transfer the artwork in accordance with a prior agreement,”
the Supreme Court noted that that request “is not a judicial controversy.” And to the extent that
Barry had alleged that artwork had been sold years earlier in violation of the Separation
Agreement, that claim was barred by the statute of limitations. Kramer Aff. Ex. G, at 13-15;
Pl.’s Mem. Ex. B, at 13-15. The June 2003 Supreme Court order reflects that earlier sua sponte
dismissal.
[10]

Agreement, to which he was not a party, “an agreement to make a will is generally enforceable
only after the death of the promisor,” and Barry therefore had no “vested legal right” that he
could pursue during his father’s lifetime. Id. Barry did not appeal the November 2004 Appellate
Division order. Kramer Aff. ¶ 4(iv).
2. The 2010 Release Agreement
After Himan’s death in June 2010 and the initial probating of his will, the parties (the
Estate, the Revocable Trust, and Barry) entered into a broad agreement relating to the Exhibit D
artwork. Kramer Aff. ¶¶ 26-33 & Ex. D.
The 2010 Release Agreement acknowledged that Himan’s will, as filed with the
Surrogate’s Court, had failed to bequeath to Barry and his sister the works identified in Exhibit D
to the Separation Agreement. The Release Agreement resolved Barry’s claims to that artwork.
It explains that Richard Kay – as trustee of the Revocable Trust and as preliminary executor of
the Estate – wished to distribute to Barry certain works due him under the Separation
Agreement; that Barry had agreed to receive such works; and that, in exchange, Barry (subject to
a limited reservation of rights) had agreed to release Kay, the Estate, and the Revocable Trust
“from any liability in connection with his right to receive such art and all matters whatsoever
pertaining to all rights that he has or may have in and to the works of art on Exhibit D of the
Separation Agreement.” 2010 Release Agreement 2. 10 The agreement provided: “It is the
intention of the parties hereto that, subject to the Reserved Claims described below, the artwork
set forth on the List is to be accepted by BARRY BROWN in full substitution and satisfaction of
10

See also id. ¶ 7 (releasing and forever discharging the same “from all liability whatsoever in
connection with the [a]ssignment, the works of art on Exhibit D to the Separation Agreement,
[and] the works of art set forth on the List”); id. ¶ 8 (releasing and forever discharging the same
“from each and every claim, deed, or reckoning relating to or arising from the [a]ssignment, the
works of art on Exhibit D to the Separation Agreement, [and] the works of art set forth on the
List”).
[11]

any right or claim BARRY BROWN may have in the works of art on Exhibit D to the Separation
Agreement.” Id. ¶ 1.
The Release Agreement set out an attached list of 34 artworks and gave Barry a 50%
undivided interest in those artworks. (The other 50% was for his sister.) The Release
Agreement classified two of those works (the Picasso and Guillaumin paintings identified in
Barry’s Complaint) as the “Valuable Art.” Id. at 2. The Release Agreement authorized Barry
and his sister to sell those two items of “Valuable Art” at auction at Christie’s, Inc., in November
2010, as, the Release Agreement represents, Barry and his sister had already made arrangements
to do. Id. at 2 & ¶ 4. 11
In the Release Agreement, Barry reserved the right, during the next five years, to bring
claims as to the other 32 listed artworks from Exhibit D of the Separation Agreement if it turned
out that: (1) at any time before the agreement, the originals of any of these artworks had been
sold or otherwise disposed of by Himan or on his behalf; (2) the originals of any of these
artworks “are in fact extant and within the custody or control” of the Estate, the Revocable Trust,
or any other entity controlled by Himan; or (3) the originals of any of these artworks had been
given away as gifts to anyone other than Barry or his sister. 2010 Release Agreement ¶ 8
(identifying these as “Reserved Claims”). Preliminary executor Kay, in turn, represented and
warranted that he had no knowledge (1) of any facts that would support a Reserved Claim, (2)
“that any work of art on the List other than the Valuable Art was once genuine during the time
that it was owned by HIMAN BROWN; (3) of the circumstances under which the forged works

11

According to the consignment agreement, Christie’s estimated that the Picasso painting, “La
Maternite,” would sell for between $9 million and $12 million, and the Guillaumin painting,
“L’Ile a Agay,” would sell for between $50,000 and $70,000. Kramer Supp. Aff. Ex. 2.
[12]

of art on the List were created; and (4) that HIMAN BROWN knowingly included works of art
on the List that were not genuine.” 2010 Release Agreement ¶ 9.
3. The bases for defendants’ motions
As to the fraud claim, defendants argue that it is barred (1) by the doctrine of res judicata,
based on the outcome of the 2002 Lawsuit; (2) by the statute of limitations, because the fraud
upon Mildred is alleged to have occurred in 1967, at the time of the Separation Agreement, and
Mildred thereafter possessed the Exhibit D artwork until her death, and knew or should have
known that the pieces were not authentic; (3) by the terms of the Separation Agreement, which
does not represent that the listed artworks were originals and which disclaims any other
representations or warranties between the parties; (4) by the New York State Dead Man’s Statute
(N.Y. C.P.L.R. § 4519), which prevents an interested party from testifying about transactions or
communications with deceased persons; (5) by the 2010 Release Agreement and the doctrine of
accord and satisfaction; and (6) because Barry has failed to plead his allegations of fraud with
particularity, as required by Fed. R. Civ. P. 9(b).
As to the conversion claim, defendants argue that it (1) does not state a claim, because
Himan had title at all times to the Exhibit D artwork, whereas conversion entails an unauthorized
assumption and exercise of the right of ownership over goods belonging to another person; and
(2) is barred by the three-year statute of limitations for conversion, based on Barry’s allegations
that the Exhibit D art was sold between as early as the 1960s and as late as 2006.
As to both claims, defendants move, alternatively, for dismissal under Fed. R. Civ. P.
12(b)(7) and 19, for failure to join as necessary parties (1) the Estate of Mildred Brown, because
it stands in the shoes of the person, Mildred, allegedly defrauded by Himan, and (2) Barry’s

[13]

sister, Hilda, because, under the Separation Agreement, she had a joint interest with Barry with
respect to the Exhibit D artwork.
II.

DISCUSSION
A. Applicable Legal Principles
1. Fed R. Civ. P. 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead sufficient

factual allegations “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,
550 U.S. at 556). Where a plaintiff has not “nudged [his or her] claims across the line from
conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570. The
Court must accept as true all well-pleaded factual allegations in the complaint, and “draw[ ] all
inferences in the plaintiff’s favor.” Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006)
(internal quotation marks and citation omitted). On the other hand, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 129 S. Ct. at 1949; see also Twombly, 550 U.S. at 555 (noting
that a court is “‘not bound to accept as true a legal conclusion couched as a factual allegation’”)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In addition, when pleading fraud, to survive a motion to dismiss, “a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). For a fraud
claim “to comply with Rule 9(b), the complaint must: (1) specify the statements that the plaintiff

[14]

contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were
made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d
273, 290 (2d Cir. 2006) (internal quotation marks and citation omitted). The complaint must also
plead facts that give rise to a strong inference of fraudulent intent. S.Q.K.F.C., Inc. v. Bell
Atlantic TriCon Leasing Corp., 84 F.3d 629, 634 (2d Cir. 1996).
2. Fed. R. Civ. P. 12(d) and 56
As to conversion of defendants’ motion to one seeking summary judgment, Federal Rule
of Civil Procedure 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). “The essential
inquiry in determining whether it is appropriate to convert a motion [to dismiss] into a motion for
summary judgment is whether the non-movant should reasonably have recognized the possibility
that the motion might be converted into one for summary judgment or was taken by surprise and
deprived of a reasonable opportunity to meet facts outside the pleadings.” Costor v. Sanders,
No. 07-cv-11311, 2009 WL 1834374, at *2 (S.D.N.Y. June 16, 2009) (internal quotation marks
and citation omitted).
That requirement is met in this case. Defendants submitted material outside the pleadings
– specifically, the above-referenced materials relating to the 2002 Lawsuit and the 2010 Release
Agreement – to the Court as attachments to affidavits submitted at the time of their motion to
dismiss. Defendants stated, and thereby gave notice to Barry, that, as a result of the submission
of such materials, the Court might be obliged to treat defendants’ motion as one for summary
judgment. See Defs.’ Mem 4 n.5; Defs.’ Reply Mem. 1 n.1. Barry has not argued a lack of

[15]

notice of the possible conversion of defendants’ motion to one for summary judgment. On the
contrary, Barry augmented the record as to the 2002 Lawsuit by submitting a full, rather than
excerpted, transcript of a hearing in New York State Supreme Court conducted during that
lawsuit. See Pl.’s Mem. Ex. B. Barry argues instead that dismissal and summary judgment are
not merited. Accordingly, the Court may properly convert defendants’ Rule 12(b)(6) motion to
one for summary judgment, and, as to some arguments for dismissal, has done so, as noted in the
ensuing analysis, to the extent that these arguments are based upon the 2002 Lawsuit and/or the
2010 Release Agreement.
As for summary judgment, it is warranted when the moving party shows that “there is no
genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists for summary judgment purposes
where the evidence is such that a reasonable jury could decide in the non-movant’s favor.”
Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “‘[W]here the nonmoving party will
bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of
evidence to support an essential element of the nonmoving party’s claim.’” Lesavoy v. Lane, No.
02-cv-10162, 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror
Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991)).
In deciding a summary judgment motion, the Court “‘resolve[s] all ambiguities, and
credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment.’” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting
Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a “‘party may not rely on
mere speculation or conjecture as to the true nature of the facts to overcome a motion for
summary judgment. . . . [M]ere conclusory allegations or denials . . . cannot by themselves create

[16]

a genuine issue of material fact where none would otherwise exist.’” Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451,
1456 (2d Cir. 1995)).
B. Plaintiff’s Fraud Claim
The Court finds that Barry’s fraud claim is subject to dismissal for three independent
reasons.
1. The fraud claim is precluded by the 2010 Release Agreement.
Barry is squarely barred from making this claim by the Release Agreement which – in
exchange for ample consideration – he entered into in August 2010. That agreement broadly
precludes Barry from bringing any claims against the Estate or the Revocable Trust relating to
the Exhibit D artwork, except if one of three discrete circumstances applies: (1) if Himan had
sold or disposed of originals of the Exhibit D artwork; (2) if the originals of this artwork were
within the custody or control of the Estate or Revocable Trust (or any entity they controlled); or
(3) if the originals had been given away to anyone other than Barry or his sister. 2010 Release
Agreement ¶ 8, identifying these as “Reserved Claims.”
None of these three Reserved Claims applies to the facts on which Barry’s present fraud
claim is based. The Reserved Claims each presuppose that Himan owned originals of the Exhibit
D artwork. Barry’s fraud claim, by contrast, repeatedly alleges that that was not true. Rather, it
alleges that Himan lied to Mildred (among others) to the effect that the Exhibit D artwork was of
“significant value,” whereas in fact it consisted of forgeries, and that he thereby defrauded her in
the 1967 negotiations. Specifically, it states that Himan “intended to deceive Mildred Brown and
disadvantage her in the negotiations leading to the Separation Agreement “by misrepresenting to

[17]

her that the artworks covered by the Separation Agreement were true and authentic artworks.”
Compl. ¶¶ 57-58; see also id. ¶¶ 44, 45, 59, 61-62. 12
Disputing that the Release Agreement bars his claim, Barry makes two arguments. First,
he attempts to recast his present fraud claim. He characterizes it as alleging “that while Himan
Brown was in control of the artwork, he disposed of it and misrepresented that the property to be
delivered to Plaintiff had value.” Defs.’ Mem. 14. Having carefully reviewed the Complaint, the
Court finds this characterization of the fraud claim untenable and, indeed, contorted. The plain
language of the fraud claim clearly, indeed repetitively, asserts that, as of 1967, Himan lied to
and deceived Mildred by falsely representing to her that the Exhibit D artworks were originals.
See, e.g., Compl. ¶¶ 35, 37-40, 42-45, 57-62; id. ¶ 45 (“As a result of these continuing
misrepresentations, Mildred Brown never discovered for herself that a major number of the
Artworks were forgeries.”).
Second, Barry argues that it is “fundamental that fraud vitiates a contract and permits the
defrauded party to rescind the contract.” Pl.’s Mem. 14-15. But the cases on which Barry relies
are inapposite. They address the situation in which the contract or agreement that is sought to be
enforced was itself induced or infected by fraud. See, e.g., Gordon v. Bialystoker Ctr., 45
N.Y.2d 692 (N.Y. 1978) (to determine enforceability of promise of a gift, court considered role
of fraud in the making of the promise); Ludowsky v. Shalit, 110 N.Y.S.2d 781 (App. Div. 1st

12

Although the 2010 Release Agreement precludes claims only against the Estate and the
Revocable Trust, dismissal of Barry’s fraud claim against the Charitable Trust is merited as well.
To the extent the fraud claim even references the Charitable Trust, it alleges liability against the
Trust only derivatively from the liability of the Estate, and the fraud claim against the Estate is
clearly precluded by the 2010 Release Agreement. See Compl. ¶ 65 (recovery sought only from
assets of the Revocable Trust and the Charitable Trust only if the Estate and the Revocable Trust
are “found to be insolvent” or “unable to satisfy a judgment”). The Complaint makes no
allegations of fraud, let alone particularized ones sufficient to meet the standard of Fed. R. Civ.
P. 9(a), against either trust.
[18]

Dep’t 1985) (court considered fraud in creation of sublease agreement in action over legitimacy
of that agreement). Although Mildred’s assent to the 1967 Separation Agreement may (or may
not) have been procured by fraud, as Barry alleges, Pl.’s Mem. 16, Barry has offered no basis to
suppose that the 2010 Release Agreement, which he entered into after Himan’s death, was
procured by fraud. Quite the contrary: Far from alleging that he was deceived when he entered
into the Release Agreement, Barry’s Complaint here – audaciously – ignores the Release
Agreement altogether.
Further, the circumstances surrounding the Release Agreement are inconsistent with any
supposition that Barry was defrauded to enter into that August 2010 pact: Barry was represented
by able counsel at the time of the Release Agreement; Himan (the alleged malefactor behind the
fraud directed at Mildred) was deceased and no longer available to mislead Barry; and Barry
does not allege that any misleading statement was directed to him by representatives of Himan’s
Estate or the trusts. And the Release Agreement reflects throughout the signatories’ clear
appreciation that – save for the two paintings denominated as “the Valuable Art” – the balance of
the Exhibit D art was not genuine or valuable. See, e.g., 2010 Release Agreement ¶ 9
(preliminary executor Kay represents and warrants that he has no knowledge “that any work of
art on the List other than the Valuable Art was once genuine during the time it was owned by
HIMAN BROWN”). Thus, far from being defrauded in 2010, Barry was amply on notice as of
the time he entered into the Release Agreement that the Exhibit D artwork, save the Valuable Art
(the Picasso and Guillaumin paintings), was of nominal value.

[19]

Summary judgment is therefore warranted for defendants as to the fraud claim, on the
basis of the Release Agreement. 13
2. The fraud claim is barred by the statute of limitations.
Barry is, independently, barred from bringing his fraud claim by the statute of limitations.
The statute of limitations for fraud is “the greater of six years from the date the cause of action
accrued or two years from the time the plaintiff or the person under whom the plaintiff claims
discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. §
213(8). Because the fraud as alleged by Barry was perpetrated (and hence accrued) in 1967,
whether his claim is timely turns on when the statute of limitations applicable to discovery began
to run. That period “‘begins to run after the plaintiff obtains actual knowledge of the facts giving
rise to the action or notice of the facts, which in the exercise of reasonable diligence, would have
led to actual knowledge.’” Hopkinson v. Estate of Siegal, No. 10-cv-1743, 2011 WL 1458633, at
*5 (S.D.N.Y. Apr. 11, 2011) (quoting LC Capital Partners, LP v. Frontier Ins. Grp., Inc., 318
F.3d 148, 154 (2d Cir. 2003)). “A plaintiff need not be on notice of the entire fraud to trigger a
duty to inquire,” GVA Mkt. Neutral Master Ltd. v. Veras Capital Partners Offshore Fund, Ltd.,
580 F. Supp. 2d 321, 327-28 (S.D.N.Y. 2008); he need have only “sufficient operative facts” that
indicate that further inquiry is necessary, Hopkinson, 2011 WL 1458633, at *5; see also Hinds

13

Alternatively, Barry’s fraud claim is barred, based on the Release Agreement, by the doctrine
of accord and satisfaction. Under that doctrine, “[a]n accord is an agreement that a stipulated
performance will be accepted, in the future, in lieu of an existing claim. . . . Execution of the
agreement is a satisfaction.” Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383
(N.Y. 1993) (emphasis added); see also May Dep’t Stores Co v. Int’l Leasing Corp., 1 F.3d 138,
140 (2d Cir. 1993) (Under New York law, “[a]n agreement of one party to give, and another
party to accept, in settlement of an existing or matured claim, a sum or performance other than
that to which he believes himself entitled, is an accord. The execution of the agreement is a
satisfaction. Although an accord, by itself, has no effect, an accord and satisfaction bars the
assertion of the original claim.”). The Release Agreement, which all parties agree was executed,
is clearly such an accord and satisfaction. See 2010 Release Agreement ¶ 1.
[20]

Cnty. v. Wachovia Bank N.A., No. 08-cv-2516, 2011 WL 4344010, at *2 (S.D.N.Y. Sep. 7, 2011)
(“‘[i]nquiry notice is triggered by evidence of the possibility of fraud, not by complete exposure
of the alleged scam’”) (quoting GO Comp., Inc. v. Microsoft Corp., 508 F.3d 170, 179 (4th Cir.
2007)).
In the Court’s assessment, the discovery rule here was triggered, and the statute of
limitations therefore expired, long, long ago. As defendants properly point out, Mildred
possessed the Exhibit D art for seven years, between the 1967 Separation Agreement and her
death in 1974. She had every opportunity to examine the Exhibit D artwork, situated in her
home, Compl. ¶ 42, and to have it inspected or appraised. Whether or not Mildred did so – or
whether she appreciated from the outset that the Exhibit D art largely consisted of non-original
works – is unknown, and irrelevant. What is relevant is that, as the party putatively defrauded
into entering into the Separation Agreement party, Mildred had every opportunity to discover the
fraud. Indeed, based on the claims in Barry’s fraud count, these “forged” artworks were in
Mildred’s plain sight for seven years. 14
In any event, by no later than 2002, when he brought suit in state court against his father,
Barry was well aware of the key pillars of a fraud claim. First, based on the allegations in the
Complaint here, Barry knew that his father had held out the Exhibit D artwork as valuable art,
including to Mildred. Barry in fact alleges that his father made that representation not only to
Mildred, but to Barry personally and “hundreds of others.” See, e.g., Compl. ¶¶ 35, 37-41.

14

Barry alleges that – despite having deliberately negotiated to obtain valuable artwork and
having foregone compensating benefits in the Separation Agreement in order to obtain it –
Mildred never learned that the artwork in her possession was not genuine. Compl. ¶ 45. Barry
does not provide a factual basis for this claim, which strains plausibility. But, even crediting this
claim, the discovery rule would still apply. That rule applies in the absence of actual knowledge,
where “a reasonably diligent plaintiff would have discovered the facts constituting the violation.”
Merck & Co. v. Reynolds, 130 Sup. Ct. 1784, 1798 (2010).
[21]

Second, Barry knew that his father harbored fraudulent intentions towards his mother at the time
of the Separation Agreement. In his 2002 Complaint, Barry, in fact, alleged not only that Himan
had admitted “taking unfair advantage of Mildred” in connection with the Separation Agreement,
see 2002 Compl. ¶ 9, but also that Himan had successfully enlisted his adult son Barry’s support
in a cynical conspiracy to disadvantage Barry’s mother in the divorce proceedings, in exchange
for Himan’s promise of future support to Barry. Id. ¶¶ 9-14, 28, 47-48, 58, 73. And, third, by
2002, Barry, by his own admission, knew that much of the supposed valuable art described in
Exhibit D was not in Himan’s possession. Id. ¶¶ 21, 24-25.
To be sure, Barry’s thesis of wrongdoing in the 2002 Complaint was distinct from that
claimed in the present fraud count. He claimed then that his father had sold off the valuable
artwork after Mildred’s death, in breach of the Separation Agreement and an oral promise to
Barry, whereas his fraud claim today asserts that Himan had duped her (along with Barry and
“hundreds of others”) to believe the Exhibit D artwork was genuine and valuable. But by no
later than 2002, Barry had more than enough facts in hand to conclude that the fraud he alleges
today had been perpetrated on his mother. Indeed, tellingly, in recasting Himan’s wrongdoing
today as fraud rather than as a breach of contract, Barry’s current Complaint does not cite a
single fact indicative of fraud of which Barry was not aware in 2002. Thus, to the extent that
Barry today may be said to have “discovered” that his father on 1967 had perpetrated a fraud on
his mother, Barry had in hand, no later than 2002, all the data he needed to make that same
“discovery.”
Dismissal of Barry’s fraud claim is thus warranted, because both the six-year limitations
period measured from accrual, and the two-year limitations period measured under the discovery
rule, have long since expired.

[22]

3. The fraud claim is barred by res judicata.
For closely related reasons, Barry’s fraud claim is barred by the doctrine of res judicata.
That doctrine provides that “a final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been raised in that action.” Maharaj
v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997). A dismissal based on res judicata is
appropriate based on an assessment of the complaint at issue and prior litigations of which the
Court may take judicial notice. See Greenwich Life Settlements, Inc. v. Viasource Funding Grp.,
LLC, 742 F. Supp. 2d 446, 452 (S.D.N.Y. 2010); Tokio Marine and Nichido Fire Ins. Co. v.
Canter, No. 07-cv-5599, 2009 WL 2461048, at *3-4 (S.D.N.Y. Aug. 11, 2009).
The 2002 Lawsuit ended in a final judgment against Barry, with prejudice, as to all
claims he raised relating to his father’s artwork, including the Exhibit D artwork. That judgment
was affirmed by the Appellate Division. The issue as to res judicata is therefore whether Barry’s
present claim of fraud was raised, or could have been raised, in the 2002 action. In making that
judgment, the Court looks to “‘whether the same transaction or series of transactions is at issue,
whether the same evidence is needed to support both claims, and whether the facts essential to
the second [action] were present in the first.’” Monahan v. City of New York Dep’t of Corr., 214
F.3d 275, 289 (2d Cir. 2000) (quoting NLRB v. United Techs. Corp., 706 F.2d 1254, 1260 (2d
Cir. 1983)).
Based on a review of the pleadings and decision in the 2002 Lawsuit, Barry did not raise
a fraud claim in that proceeding. Rather, Barry’s thesis with regard to the Exhibit D artwork was
that Himan had sold, or diverted, genuine art from that list after Mildred’s death, in violation of
the Separation Agreement and his oral promise to Barry, so as to disadvantage Barry. However,
it is quite clear that that fraud claim could have been raised alongside the claims that Barry

[23]

brought in 2002. The fraud claim relates to misconduct by the same person (Himan) relating to
the same artwork (the Exhibit D artwork) in violation of the same agreement (the 1967
Separation Agreement). The 2002 Action and the present lawsuit also allege the same victim
(Barry). And, as noted above, Barry has not identified any single piece evidence of fraud
acquired since 2002.
The fraud claim Barry brings today thus should, and could, have been brought in 2002,
and it is therefore barred by res judicata. See, e.g., Zito v. Fischbein Badillo Wagner Harding,
915 N.Y.S.2d 260 (N.Y. App. Div. 3d Dep’t 2011) (slip op.) (plaintiff’s claim barred by res
judicata because underlying events identical to those addressed by court in earlier action).
In reaching this conclusion, the Court acknowledges Barry’s claim that his 2002 Lawsuit
was dismissed on the ground that it was not ripe. Pl.’s Mem. 5. But, as a review of the decisions
in that case reflects, that is true only of the first cause of action in that case, in which Barry had
alleged that Himan had breached the Separation Agreement because his will did not leave the
Exhibit D artwork to Barry and his sister. 15 In affirming the dismissal as to that cause of action,
the Appellate Division noted that “an agreement to make a will is generally enforceable only
after the death of the promisor,” and Barry during his father’s lifetime therefore had no “vested
legal right” to pursue such a claim. Kramer Aff. Ex. C, 1-2. The Appellate Division did not,
however, so qualify its rulings affirming the dismissal, with prejudice, as to Barry’s other causes
of action, including counts two, five, seven, and eight, all of which alleged injury to Barry based

15

Notwithstanding this, the Appellate Division did not disturb the Supreme Court’s dismissal
with prejudice of that claim.
[24]

on his father’s sale of artwork promised to him (including artwork promised under the
Separation Agreement). 16
C. Plaintiff’s Conversion Claim
The Court finds that Barry’s conversion claim is also subject for dismissal, for three
independent reasons. 17
1. The conversion claim is barred by res judicata.
Barry’s conversion claim is, clearly, barred by res judicata, because Barry’s 2002 lawsuit
made, effectively, the same claim as Barry makes today, and that claim was dismissed with
prejudice.
As noted, the 2002 lawsuit claimed in multiple counts that, after Mildred’s death, Himan
had sold off the Exhibit D artwork, depriving Barry, and his sister, of their rightful ownership
interest in that allegedly valuable artwork. The current conversion claim similarly postulates that
Himan retook the “original and authentic Artworks” from Mildred after her death, and replaced
those artworks with forgeries or reproductions and kept the original artworks for himself, leaving
Barry “with worthless Artworks at the time of Himan Brown’s death,” Compl. ¶ 66, and
“depriving [Barry] of his ownership interest in the Artworks,” Compl. ¶ 73.
The 2002 lawsuit and the current conversion claim thus both allege the same conduct,
differing only as to particulars (e.g., the conversion claim adds the allegation that Himan
substituted worthless reproductions or forgeries for the original art) and the characterization of

16

Because the Court finds that Barry’s fraud claim must be dismissed for the three independent
reasons set forth above, the Court has no occasion to reach defendants’ other arguments for
dismissal of that claim.
17

Unlike the fraud claim, the conversion claim is preserved by the Release Agreement, because
the conversion claim is based on the premise that Himan owned originals of the Exhibit D Art
but did not transfer such art to Mildred at the time of the Separation Agreement.
[25]

the claim (“breach of contract” versus “conversion”). As such, the dismissal of the 2002 claims
with prejudice is res judicata. See, e.g., Zito, 915 N.Y.S.2d 260 (plaintiff’s claims barred by res
judicata even though he had added a cause of action under the state judiciary law to his
malpractice claims, because the new cause of action is predicated on the same conduct as the
earlier-raised claim). In any event, even if the conversion claim were not regarded as raising
literally “the same issues” as were litigated in 2002, such issues “could have been raised in that
action.” Maharaj, 128 F.3d at 97.
2. The conversion claim fails to state a claim.
The conversion claim also fails to state a claim, and must be dismissed under Rule
12(b)(6), for two reasons.
First, Barry does not adduce any factual allegations to support this claim. Instead, the
Complaint admits that the conversion claim is 100% conjectural. That claim begins: “In the
event that it is conceivable that Himan Brown did deliver original and authentic Artworks to
Mildred Brown . . . .” Compl. ¶ 66. Nowhere in the claim does Barry set forth any factual basis
to believe that originals of the Exhibit D artworks were ever owned by Himan, let alone that they
were sold or transferred by Himan and replaced by “forgeries” or “reproductions.”
Although it is entirely proper to plead in the alternative, to have facial plausibility, a
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009); see also S.E.C. v. Gabelli, 653 F.3d 49, 57 (2d Cir. 2011) (“To survive a motion to
dismiss, however, a complaint must allege a plausible set of facts sufficient to raise a right to
relief above the speculative level.”); Amidax Trading Grp. v. S.W.I.F.T. SCRL, No. 09-3293-cv,
2011 WL 6317466, at *7 (2d Cir. Dec. 19, 2011) (per curiam) (“‘The plausibility standard is not

[26]

akin to a probability requirement, but it asks for more than a sheer possibility that a defendant
has acted unlawfully.”‘) (quoting Iqbal, 129 S. Ct. at 1949); ATSI Communications, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (plaintiff’s factual allegations must be “sufficient ‘to
raise a right to relief above the speculative level’”) (quoting Twombly, 550 U.S. at 555). Here,
Barry’s hypothetical – and, for all intents and purposes, imagined – pleading falls well short of
the requirements of Twombly and Iqbal. 18
Second, even if this were not so, the conduct Barry postulates in the conversion claim
does not, as a matter of law, constitute conversion. Conversion is the “unauthorized assumption
and exercise of the right of ownership over goods belonging to another to the exclusion of the
owner’s rights.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir. 2006).
Barry’s conversion claim, however, is based on the thesis that Himan converted the original,
valuable art, by replacing it with “forgeries and reproductions” and, presumably, selling (or
giving away) the original art. 19 At all times until his death, Himan undisputedly owned outright
the Exhibit D artworks (whether or not authentic). As a matter of law, Himan could not have
committed conversion as to objects that he owned. See, e.g., Soroof Trading Dev. Co. v. GE
Fuel Cell Sys. LLC, No. 10-cv-1391, 2012 WL 209110, at *7 (S.D.N.Y. Jan. 24, 2012) (an

18

This shortcoming is particularly glaring in light of the Release Agreement. As noted, that
agreement presupposes that originals of the Exhibit D artwork (apart from the Valuable Art)
were never owned by Himan, while reserving Barry’s right to pursue such originals in the event
that Himan’s ownership of such originals came to light. See 2010 Release Agreement ¶ 8. The
conversion claim – indeed, Barry’s Complaint – is devoid of any factual allegation that the
ownership by Himan of such originals has now come to light.
19

Barry nowhere alleges that Himan continued to possess the original artwork at the time of his
death or that the Estate is currently in possession of the original artwork. In the Release
Agreement to which Barry is a party, signatory Kay, the preliminary executor of Himan’s estate,
represents that the Estate does not possess any original art (and indeed that “any work of art on
the List other than the Valuable Art was once genuine during the time it was owned by HIMAN
BROWN”). 2010 Release Agreement ¶ 9.
[27]

element of conversion is that the party charged “exercised dominion or a right of ownership over
property belonging to another”); Seifts v. Consumer Health Solutions LLC, No. 05-cv-9355, 2011
WL 4542905, at *8 (S.D.N.Y. Sep. 30, 2011) (conversion “requires that the defendant exclude
the owner from exercising her rights over the goods”). Whatever cause of action Barry possibly
had or has arising out of the failure of his father to bequeath the Exhibit D artwork to Barry and
his sister as required by the Separation Agreement, it is not conversion.
3. The conversion claim is barred by the statute of limitations.
Finally, the conversion claim is barred by the statute of limitations. The Complaint does
not state when Himan’s hypothesized conversion – i.e., the sale and substitution – of any original
Exhibit D artwork took place. As the Complaint openly admits, any such conversion is entirely
conjectural.
Significantly, Barry, in the 2002 lawsuit, made the same allegation, that his father had
sold or otherwise disposed of the Exhibit D artwork. Absent any allegation in the Complaint of a
more recent act of conversion, there is no basis to assume that any such act occurred after
2002. 20 And as to any sale of artwork that had occurred as of 2002, the three-year statute of
limitations for conversion long ago expired. 21

20

Even the 2002 date is generous to Barry: his complaint in the 2002 Lawsuit did not allege the
date of any alleged sale by his father of artwork promised to Barry, and the only sale of artwork
referenced in the court transcript furnished by Barry is a 1990 sale of, apparently, an item listed
on Schedule C of the Separation Agreement. See Pl.’s Mem. Ex. B, at 14.
21

In New York State, there is no discovery rule which applies to causes of action for conversion.
See, e.g., Vigilant Ins. Co. of Am. v. Hous. Auth.of El Paso, 87 N.Y.2d 36, 44 (N.Y. 1995)
(“accrual [of a conversion claim] runs from the date the conversion takes place and not from
discovery or the exercise of diligence to discover”) (internal citation omitted). Indeed, even if
there were such a discovery rule, the statute of limitations measured under any such rule would
have long ago expired, as Barry had not only discovered the precipitating facts as of 2002, but
brought the 2002 Lawsuit on the basis of them.
[28]

D. Failure to Join a Necessary Party
Defendants alternatively seek dismissal under Federal Rule of Civil Procedure 19, based
on the Complaint’s failure to join the Estate of Mildred Brown, and Barry’s sister, Hilda. A
person must be joined as a necessary party, if feasible, if:
(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or (B) that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the
interest; or (ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). Where the Court determines that a party is necessary, it “must order”
that the party be joined. Fed. R. Civ. P. 19(a)(2); Jota v. Texaco, Inc., 157 F.3d 153, 162 (2d Cir.
1998) (“Rule 19(a) requires the Court to join any person who is necessary to effect ‘complete
relief,’ where such joinder is feasible”); Greenwich Life Settlements, Inc., 742 F. Supp. 2d at
455-56. Where it is not feasible to join the absent party, the Court must determine “whether, in
equity and good conscience, the action should proceed among the existing parties or should be
dismissed.” Fed. R. Civ. P. 19(b).
To the extent that defendants’ Rule 19 motion is based on a failure to join the Estate of
Mildred Brown, the Court denies that motion. It is undisputed that from 1967 forward, Mildred
had no more than a possessory interest in the Exhibit D artworks. Thus, her estate has no
ownership interest implicated by the current controversy. To the extent Barry alleges (in the
fraud claim) that Mildred was deceived by Himan to believe that the artwork that he promised in
the Separation Agreement to leave to the two children was more valuable than it actually was,
that injury today falls upon Barry and Hilda, not on Mildred’s Estate. Her estate’s absence from
this litigation does not prevent the Court from “accord[ing] complete relief among existing
parties,” Fed. R. Civ. P. 19(a)(1)(A), and her estate has not “claim[ed] an interest relating to the
[29]

subject of [this] action.” Fed. R. Civ. P. 19(a)(1)(B). In any event, 45 years after Mildred’s
death, it is not feasible to join her estate, and, if not otherwise deficient, this action could in
equity and good conscience proceed without it. Fed. R. Civ. P. 19(b).
However, the opposite conclusion inheres as to Barry’s sister, Hilda. Barry’s claim of
injury as articulated in the Complaint derives entirely from his role as a third-party beneficiary of
the Separation Agreement. That agreement provided that Barry and his sister were to inherit,
jointly, the Exhibit D artwork upon the death of the latter of their parents. Any interest Barry
claims as to that artwork is, thus, a joint interest with his sister. 22 Notably, Barry’s Complaint
demands judgment in Barry’s favor against the defendants, but does not seek any relief for his
sister. And, strikingly, despite Barry’s only half-interest in the Exhibit D artwork, the
Complaint demands judgment in Barry’s favor for “not less than $27,754,570,” which it alleges
is the full value of the Exhibit D artwork at issue. Compl. ¶ 12. Barry offers no explanation for
his demand that a court or jury, effectively, award Hilda’s half-interest to Barry.
Under these circumstances, Hilda would be a necessary party to this litigation, were the
Complaint not otherwise fatally deficient. She has an interest identical to Barry’s. Assuming
that a verdict and judgment for $27,754,570 in Barry’s favor were returned against Himan’s
Estate and the trusts, the defendants would be left exposed to a parallel action by Hilda for her
50% interest. This case thus presents a classic example where joinder is necessary in the interest
of affording complete relief among existing parties, Fed. R. Civ. P. 19(a)(A), and to avoid
“leav[ing] an existing party subject to a substantial risk of incurring double, multiple, or

22

The Release Agreement – which provides for the proceeds of the sales of the Valuable Art,
i.e., the Picasso and Guillaumin paintings, to be shared equally between Barry and his sister –
confirms this understanding. See 2010 Release Agreement ¶¶ 5-6.
[30]

otherwise inconsistent obligations.” Fed. R. Civ. P. 19(a)(B). To this, Barry offers no
persuasive rejoinder. 23
E. Candor with the Court
The Court is, finally, compelled to express its disappointment in the conduct of Barry and
his counsel in filing this Complaint without disclosing therein the fact of the 2010 Release
Agreement. Barry entered into the Release Agreement with the defendant Estate and the
defendant Revocable Trust just six weeks before he filed this Complaint. The Release
Agreement resolves Barry’s rights, as against the Estate, with respect to the Exhibit D artwork –
the subject of this case. And, as discussed herein, the Release Agreement squarely bars Barry’s
fraud claim here. As a matter of basic candor with the Court and professional responsibility, it
was incumbent on Barry and his counsel to disclose the fact of that agreement and to explain
why the claims he brought were, purportedly, preserved by that agreement.

23

Barry states only that “[d]ue to jurisdictional constraints, Plaintiff cannot obtain relief against
the Defendants in a forum in which Hilda could involuntarily be joined.” Ds.’ Mem. 24. Barry
does not explain this conclusory statement. Notably, Barry has supplied the Court with an
affidavit he submitted in the 2002 Lawsuit, to which his sister was also not named as party. In
that affidavit, Barry represented that, if necessary, his sister nevertheless “agrees to join this
lawsuit.” Ds.’ Mem. Ex. B, at ¶ 6. Tellingly, Barry has made no such representation in this case.
Indeed, while vigorously opposing defendants’ Rule 19 motion, Barry nowhere represents that
his sister is even aware of the fact of this lawsuit. See Pl.’s Mem. 22-25.
[31]

III.

CONCLUSION
For the various reasons stated in the foregoing, plaintiff's complaint is dismissed, with

prejudice.

24

The Clerk of the Court is directed to terminate the motion at docket entry number five
and to close this case.

SO ORDERED.

pauf~e0aye~ f+r
United States District Judge

Dated: February 9, 2012

New York, New York

To the extent the Court has dismissed (or granted summary judgment to defendants on)
plaintiffs claims based on res judicata, the statute of limitations, or the Release Agreement,
these dismissals are, by their nature, with prejudice. In addition, this Court's Individual Rules
provide that upon receipt of a motion to dismiss, a plaintiff may either exercise his right to
amend the complaint, or, alternatively, oppose the motion to dismiss, thereby giving up his right
to amend. See Judge Paul A. Engelmayer's Individual Rules and Practices in Civil Cases, Rule
3F, available at http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=568. Here,
Barry elected to rely on his complaint as originally pled.

24

[32]