SUMMONS + COMPLAINT May 11, 2018 (2024)

 
Preview
 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - —————————- ———————————————— ---------------------------------------------------------------------X STEPHEN BRUCE, Plaintiff, Index No.: -against- SUMMONS G.O.L.A., Inc. d/b/a WOODWARD GALLERY a/k/a WOODWARD GALLERY, N.Y.C. and KRISTINE WOODWARD, Defendant. ———————- ————— —- —————————————— --------------------------------------------------------------------X TO THE ABOVE NAMED DEFENDANT(s): YOU ARE HEREBY SUMMONED to appear in this action by serving a notice of appearance or answer on plaintiffs attorney(s) within twenty (20) days after service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer, Judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York May 10, 2018 RHEEM BÊLL & MElf ELSTEIN LLP /,-'j i' ,'/~7 -:-- <),n ( By: Richard E. Freeman III,Esq. Attorneys for Plaintiff Stephen Bruce 36th 12th 20 W. Street, FlOOr New York, New York 10018 T: (212) 239-4001 F: (212) 239-4125 E: rfreeman@rbmilp.com TO: G.O.L.A., Inc. d/b/a Woodward Gallery a/k/a Woodward Gallery, N.Y.C. 133 Eldridge Street New York, New York 10002 Kristine Woodward 133 Eldridge Street New York, New York 10002 1 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK —- ——————-- ————————————————— --------------------------------------------------------------------X STEPHEN BRUCE, Plaintiff, Index No.: -against- VERIFIED COMPLAINT G.O.L.A., Inc. d/b/a WOODWARD GALLERY a/k/a WOODWARD GALLERY, N.Y.C. and KRISTINE WOODWARD Defendant. ————————— --------------------------------------------------------------------X "Plaintiff" "Bruce" Plaintiff STEPHEN BRUCE (hereinafter known as or "Bruce"), by his attorneys, Rheem Bell & Mermelstein LLP, for the Verified Complaint against defendant G.O.L.A., Inc. d/b/a WOODWARD GALLERY a/k/a WOODWARD GALLERY N.Y.C. Gallery" (collectively referred to as "Woodward Gallery") and KRISTINE WOODWARD (with Gallery" Woodward" "Defendants" "Woodward and "Kristine being collectively known as "Defendants"), respectfully alleges as follows: THE PARTIES 1. Plaintiff STEPHEN BRUCE is a natural person residing in the State of New York, County of New York, with a principal place of business in the County of New York. 2. Upon information and belief, defendant G.O.L.A., Inc. is a corporation duly organized and existing under the laws of the State ofNew York, doing business as "WOODWARD GALLERY" N.Y.C." and also known as "WOODWARD GALLERY with a principal place of business at 133 Eldridge Street, New York, New York 10002. 1 2 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 3. Upon information and belief, KRISTINE WOODWARD is a natural person residing in the State of New York, County of New York, with a principal place of business at 133 Eldridge Street, New York, New York 10002. JURISDICTION AND VENUE 4. Jurisdiction and venue are proper in this Court because Plaintiff and Defendants are located, have a principal place of business in or otherwise reside within New York County. The actions complained of herein also arose out of New York County. Accordingly, the parties in the instant action are within the territorial jurisdiction of this Court. PERTINENT FACTS 5. Plaintiff is the owner of several lithographs and a unique stamp designed and created by Andy Warhol, as well as certain books created by Andy Warhol's mother. 6. On or around March 2008, Plaintiff and Woodward Gallery executed a Consignment Memo, wherein certain Warhol lithographs, books and a stamp were provided by Plaintiff to Defendants on consignment for the possible sale of same. A true and accurate copy of the Consignment Memo is annexed hereto as Exhibit A. 7. The Consignment Memo listed the eight (8) lithographs, two (2) books and one (1) stamp, as a single lot and did not assign particular values to any of the pieces as it was at all times relevant herein understood that such items would be listed together for sale as a single lot. 8. In particular, Plaintiff delivered the following items to Defendants, as referenced in the Consignment Memo by their serial identification numbers: - Shoe" (i) IV.70.A Lithograph: "My Shoe is Your - Shoe" (ii) IV.77.A Lithograph: "Shoe of the Evening, Beautiful - Shoe" (iii) IV.81.A Lithograph: "Sunset and Evening 2 3 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 - I' Tonight" (iv) IV.82.A Lithograph: "Shoe Light Shoe Bright, First Shoe I've Seen - Shoe" (v) IV.69B Lithograph: "Uncle Sam Wants - Shoe" (vi) IV.72B Lithograph: "Dial M for - Shoes" (vii) IV.79B Lithograph: "In Her Sweet Little Alice Blue - Baby" (viii) IV.84B Lithograph: "Shoe Fly (ix) Book: Holy Cats by Andy Warhol's Mother Calvin" - Annotated "For Andy Warhol's Mother (x) Book: Holy Cats by Andy Warhol's Mother Stepahen" - Annotated "For Andy Warhol's Mother (xi) Ink Stamp: Untitled (Stamps of Fruit, Stars, Birds and Insects), ca. 1957 1/2" 7/8")l Original work with pencil on sketch paper (approx. 12 x 11 B.2 Accurate depictions of the lithographs, books and stamp are annexed hereto as Exhibit B. (hereinafter the lithographs, books and stamp are collectively referred to as the "Collection" "Collection"). 9. The Consignment Memo was drafted by Defendants and the executed copy was provided on Woodward Gallery letterhead. 10. The Consignment Memo stated, in pertinent part, that "Consignee shall be responsible for loss or damage to the work until itis safely returned to the Consignor or until itis full." paid in See Exhibit A. 11. The Consignment Memo further stated, in pertinent part, that "Title to the work consignment." shall remain with the Consignor during the See Exhibit A. 12. The Consignment Memo additionally indicates that "Title will transfer once account." purchase price is received in full and post (sic) to Consignor's See Exhibit A. ' Another book thatwas lentby Plaintiffto Defendants on consignment, entitledPlay Book of You S Bruce by Andy Warhol, was returned to Plaintiffshortlyafterthe partiessigned the Consignment Memo. 2 It should be noted thatthe shade and combination of water colorpaint depicted ineach lithograph as depicted in Exhibit B may vary from the versions lenton consignment to Defendants as itis understood thatmultiple versions of each lithograph may exist.Accordingly, the attachedexhibit is forreference,only. 3 4 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 13. None of the terms of the Consignment Memo state that Defendants would be paid a commission for any sale. 14. At all times relevant herein, Plaintiff understood that he would have the final approval for any sale proposal made while the Collection was on consignment and that any such sale would need to be authorized by him. 15. At all times relevant herein, Plaintiff understood that any of the items in the Collection he lent Defendants on consignment would be returned to him upon his request. 16. Over five years after placing the Collection on consignment, on or around September 7, 2013, Plaintiff received a personal letter from defendant Kristine Woodward collector" indicating that (i) she had "invoiced a very good for five (5) of the lithographs, (ii)that the sales price of the lithographs would be $12,000 for each piece for an aggregate of $60,000 and (iii)that Woodward Gallery expected a twenty (20%) percent commission in relation to such sale. 17. By letterof September 13, 2013, Plaintiff's attorney put Defendants on notice that: (i)Plaintiff had not authorized Defendants to enter into a sale that only involved some, but not all, of the art pieces in the Collection, (ii)Plaintiff was unwilling to engage in any sale of the Collection where Plaintiff did not receive immediate payment in full and (iii)that Plaintiff was rejecting the proposed sale. 18. In addition, by the same letter of September 13, 2013, Plaintiff's attorney instructed Defendants not to take any further action with respect to that proposed sale, collect any sale proceeds from the proposed purchaser, or release or deliver possession of any of the subject works in the Collection to the proposed purchaser. 19. By the same letter of September 13, 2013, Plaintiff's attorney advised Defendants that unless they had a purchaser who was prepared to acquire the entire Collection and make 4 5 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 parties' immediate payment of the purchase price in full pursuant to the understanding, then the Collection needed to be returned to him immediately. 20. In response, Defendants informed Plaintiff in a letter, also dated September 13, 2013, that the five (5) lithographs referenced in their September 7, 2013 were already sold and that payment could be expected the following month. 21. Plaintiff again, by his attorney, advised that he did not and would not approve the sale, and directed Defendants to notify the prospective purchaser that the sale was being rejected in writing and to demand that the entire Collection be returned. 22. At no time were the five (5) lithographs returned to Plaintiff despite due demand for same and Defendants refused to cancel the sale or return the lithographs. 23. Upon information and belief, Defendants proceeded with the sale of the five (5) lithographs in the amount of $60,000 despite Plaintiff's clear instructions to the contrary. 24. While Defendants tendered a check in the amount of $48,000 to Plaintiff in or around September 2013, Plaintiff did not deposit same as he did not consent to the alleged sale Defendants' and did not agree to the request for a commission in the amount of $12,000, which is twenty (20%) percent of the alleged sales price. 25. Defendants have refused to disclose the name of the party that purportedly purchased the five (5) lithographs that were the subject of the September 7, 2013 letter. 26. Defendants have further failed to return the remaining three (3) lithographs, two (2) books by Andy Warhol's Mother, and stamp despite due demand for same. 27. As a result of the aforementioned, Plaintiff has been forced to commence the instant proceeding herein. 5 6 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 AS AND FOR A FIRST CAUSE OF ACTION AS AGAINST ALL DEFENDANTS (Breach of Contract) "1" 28. Plaintiff repeats, reiterates and realleges the allegations contained in Paragraphs "27" through as if more fully set forth herein. 29. Plaintiff entered into an agreement with Defendants to lend the Collection, comprised of eight (8) lithographs, two (2) books and one (1) stamp, to Defendants on consignment as memorialized in a Consignment Memo signed by the parties. 30. Plaintiff tendered the Collection to Defendants on or around March 15, 2008. 31. At all times relevant herein itwas understood that the Collection was to be sold as a single lot. 32. In or around September 2013, defendant Kristine Woodward informed Plaintiff in a personal letterthat Defendants had located a buyer for five (5) lithographs for the sum of $12,000 per lithograph for a total of $60,000. 33. At the same time, Defendants indicated that they would be taking a twenty (20%) percent commission on the stated purchase price of $60,000 for a total of $12,000 in commissions. 34. Plaintiff promptly rejected the sale and asked that the Collection be returned to him if same could not be sold in a single lot. 35. Upon information and belief, Defendants sold the five (5) lithographs in direct violation of the Consignment Memo and Plaintiff's express instructions. 6 7 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 36. Upon information and belief, Defendants took a commission of twenty (20%) percent of the purchase price in direct violation of the Consignment Memo and Plaintiff's express instructions. parties' 37. Defendants breached the agreement by (i) selling five (5) lithographs without Plaintiff's permission, (ii)selling five (5) lithographs separately from the Collection, (iii) retaining the full sale proceeds of the lithographs, (iv) taking an unauthorized commission from the sales proceeds of the lithographs and (v) failing and otherwise refusing to return the Collection upon Plaintiff's request. 38. As a result of Defendant's breaches, Plaintiff has suffered, and continue to suffer, substantial harm. 39. Based on the foregoing, Plaintiff is entitled to an order directing Defendant to return the Collection or, in the alternative, a judgment against Defendant for damages in an amount to be determined at trial, but not less than Two Hundred Fifty Thousand ($250,000) Dollars, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. AS AND FOR A SECOND CAUSE OF ACTION AS AGAINST ALL DEFENDANTS (Unjust Enrichment) "1" 40. Plaintiff repeats, reiterates and realleges the allegations contained in Paragraphs "39" through as if more fully set forth herein. 41. Plaintiff lent the Collection to Defendants on consignment on or around March 15, 2008. 42. At all times relevant herein, it was understood that any of the works in the Collection would be returned upon Plaintiff's demand for same. 43. Plaintiff demanded the return of the Collection in or around September 2013. 7 8 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 44. Defendants failed to and otherwise refused to return the Collection. 45. Further, upon information and belief, Defendants have sold all or part of the Collection. 46. To the extent that all or part of the Collection was sold, Plaintiff has yet to receive payment for same. 47. Defendants have benefited from retaining the Collection and/or the proceeds of sale of same and has been unjustly enriched to the detriment of Plaintiff. 48. As such, Plaintiff is entitled to judgment against Defendant for damages in an amount to be determined at trial,but not less than Two Hundred and Fifty Thousand ($250,000) Dollars, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. AS AND FOR A THIRD CAUSE OF ACTION AS AGAINST ALL DEFENDANTS (Breach of Fiduciary Duty) "1" 49. Plaintiff repeats, reiterates and realleges the allegations contained in Paragraphs "48" through as if more fully set forth herein. Defendants' 50. Plaintiff, in placing the Collection in care and custody on consignment, and Defendants, in accepting the Collection on such basis, created a consignor-consignee and/or principal-agent relationship. 51. As consignee and agent, Defendants owed Plaintiff a fiduciary duty and were, amongst other things, obligated to act loyally towards Plaintiff and refrain from engaging in conduct detrimental to Plaintiff. 52. Defendants have either sold allor part of the Collection and retained the proceeds of sale or otherwise wrongfully refused to return the Collection to Plaintiff. 8 9 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 53. Defendant's actions constitute a breach of Defendant's fiduciary obligations to Plaintiff. 54. Due to Defendant's breach of its fiduciary duty, Plaintiff has suffered significant damages. 55. As such, Plaintiff is entitled to judgment against Defendant for damages in an amount to be determined at trial, but not less than Two Hundred Fifty Thousand ($250.000) Dollars, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. AS AND FOR A FOURTH CAUSE OF ACTION AS AGAINST ALL DEFENDANTS (Constructive Trust) 56. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "55" paragraphs numbered through and including above as though more fully set forth herein. 57. There exists a fiduciary or confidential relationship between Plaintiff and defendant Kristine Woodward in her individual capacity, as well as in her capacity as representative of defendant Woodward Gallery. 58. Plaintiff lent Defendants the Collection on consignment on or around March 15, 2008. 59. At all times relevant herein, it was promised and understood that title to the Collection remained with Plaintiff during the consignment period. 60. At all times relevant herein, itwas promised and understood that the Collection, or any part thereof, would be returned by Defendants upon Plaintiff's demand. 61. Plaintiff trusted and reasonably relied on defendant Kristine Woodward in her individual capacity, as well as in her capacity as representative of defendant Woodward Gallery, given his confidential relationship with her. 9 10 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 62. In September 2013, Plaintiff demanded the return of the Collection. 63. Defendants have refused to return the Collection despite due demand for same. 64. The conduct of the Defendant has breached a fiduciary obligation owed to Plaintiff by reason of the trust and confidence placed in the Defendants by Plaintiff and has resulted in harm to Plaintiff. 65. As a result thereof, Plaintiff requests and prays that a constructive trust be impressed upon the Collection. AS AND FOR A FIFTH CAUSE OF ACTION AS AGAINST ALL DEFENDANTS (Temporary, Preliminary and Permanent Injunction) 66. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "65" paragraphs numbered through and including above as though more fully set forth herein. 67. At alltimes hereinafter mentioned, Plaintiff has been the true, legal and equitable owner of the Collection, while said Collection was given to Defendants on consignment. 68. Upon information and belief, Defendants are still in possession of some, if not all, of the Collection. 69. Defendants have refused or otherwise failed to return the Collection to Plaintiff despite due demand for same. 70. There does not exist any adequate remedy at law to compensate Plaintiff as monetary damages do not afford adequate compensation for Plaintiff in the event that the Collection is transferred, conveyed, sold or otherwise encumbered. 71. In the event the Collection is transferred, conveyed, sold or otherwise encumbered, Plaintiff will suffer irreparable harm. 10 11 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 72. Based upon the foregoing, Plaintiff seeks judgment that Defendants be temporarily, preliminarily and permanently enjoined from transferring, conveying, selling or otherwise encumbering the Collection. WHEREFORE, Plaintiff demands judgment as follows: A. On the First Cause of Action, Plaintiff is entitled to an Order directing Defendants to return the Collection or, in the alternative, a Judgment against Defendants in an amount to be determined at trial,but not less than $250,000, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. B. On the Second Cause of Action, Plaintiffs are entitled to Judgment against Defendants in an amount to be determined at trial,but not less than $250,000, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. C. On the Third Cause of Action, Plaintiffs are entitled to Judgment against Defendants in an amount to be determined at trial,but not less than $250,000, plus interest, costs, disbursem*nts, and reasonable attorney's fees for bringing this action. D. On the Fourth Cause of Action, Plaintiffs are entitled to an Order impressing a constructive trust upon the Collection. E. On the Fifth Cause of Action, Plaintiffs are entitled to Judgment that Defendants be temporarily, preliminarily and permanently enjoined from transferring, conveying, selling or otherwise encumbering the Collection. F. Awarding Plaintiffs such other and further relief as the Court may find just, proper, and equitable, including, but not limited to, an award of reasonable attorney's fees, costs and disbursem*nts. 11 12 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 Dated: New York, New York May 9, 2018 RHEEM BELL & FREEMAN L By: Richard E. Freeman III Attorneys for Plaintiff Stephen Bruce 36th 12th 20 W. street, FlOOr New York, New York 10018 T: (212) 239-4001 F: (212) 239-4125 E: rfreeman@rbmilp.com 12 13 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 VERIFICATION STATE OF NEW YORK ) ) COUNTY OF NEW YORK ) STEPHEN BRUCE, being duly sworn, deposes and says: I am the named Plaintiff in the action herein. I have read the foregoing verified complaint and verify that the contents of said verified complaint are true to my own knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. C. s STÈP N BRUCE Jr Sworn to before me this ) IJ day of May, 2018 NOTAltY PUBLIC - - - --------- SEANFREEMAN - Stateof NewYork Notary Public NO,01FR6358753 Qualiñedin RichmondCounty My CommissionExpiresMay 15,2021 I - - - - - - - - - - - - 13 14 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 15 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 WOODWARD GALLERY E ST A B L I S HED 1 9 9 4 Consignment Memo . CONSIGNMENT PERIOD: March 15, 2008 to sold. ANDY WARHOL Offset 3/4" 3/4" lithograph and watercolor on paper, 9 X 13 IV.70A IV 77 A IV.81A 1V.82A IV69B IV72B IV79B IV84B Unique rubber stamp on paper Black ink 12 7/8 x 11 7/8 inches 2 Unique books, Cats Warhol's mother Holy by Andy 1 Unique book, Andy Warhol, Play Book Tou S Bruce. of CONSIGNMENT VALUE: To be determined. Consignee shall be responsible for loss or damage to the work until it is safely returned to the Consignor or until it is paid in full.Title to the work shall remain with the Consignor during the consignment. Title will transfer once purchase price is received in full and post to Consignor's account. ' Co ee: Co signor: ee:g g/ AVf6dwa'rf Gallery, N.Y.C. te hen Bruce Serendipity 3 225 E. 60 Street. New York, NY 10022 212 838 3531 phone 133 ELDRIDGE STREET, GROUND FLOOR, NEW YORK, NY10002 PHONE: 212.966.3411 FAX: 212.966.3491 E-MAIL:ART@WOODWARDGALLERY.NET WWW.ARTNET.COM/WOODWARD.HTML TUESDAY SATURDAY 11-6 PM 16 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 17 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 18 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 19 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/11/2018 20 of 28 FILED: NEW YORK COUNTY CLERK 05/11/2018 05:14 PM INDEX NO. 652339/2018 NYSCEF DOC. NO. 1 

Related Contentin New York County