Mandarin Trading Ltd. v. Wildenstein

Nardelli, J. (dissenting).

I would reverse, deny the motion to dismiss the complaint, and reinstate the complaint.

At issue is whether the claims alleged in the complaint are sufficient to withstand a pre-answer motion to dismiss. The following factual recitation is derived from the complaint. It is alleged that Phoenix Capital Reserve Fund, the parent company of plaintiff Mandarin Trading, was approached in July 2000 about purchasing a Paul Gauguin painting, Paysage aux Trois Arbres. Amir Cohen, a nonparty, informed Patrick Blum of Phoenix that he could arrange for the sale of the painting in exchange for a percentage of the subsequent resale price. As a condition of the sale, Mandarin required an appraisal and reports of the painting’s condition and prior ownership. Cohen agreed to obtain the information and recommended that defendant Guy Wildenstein, a renowned Gauguin expert, provide the appraisal. In a July 28, 2000 letter to a purported Mandarin intermediary, Michel Reymondin, Wildenstein stated: “You have asked my opinion about the value of two paintings with which I am quite familiar, since at one time they were sold by our firm . . . with regard to [the Painting], this is no. 489 of the catalogue raisonné [a catalogue of Gauguin’s paintings] published by my grandfather ... It was part of Mrs. Arthur Lehman’s collection . . . This picture was painted in 1892, during the artist’s first voyage to Tahiti. Given the rarity of the paintings from this era and its size, I think in the current market it would be worth between 15 and 17 million dollars ... I hope this has answered your questions.”

In an August 10 letter, Thomas Seydoux, the Director of *457Christie’s Impressionist Paintings Department, stated: “After having carefully examined the painting ... we would be very honored to be able to present this masterpiece ... on November 8th, with an estimated price of US$ 12 million to US$ 16 million and a reserve [minimum sale] price set at US$ 12 million.”

On or about August 12, Mandarin received the appraisal. The complaint alleges that a sales invoice was issued on August 16 which contained the provenance of the painting and led Mandarin to conclude that Wildenstein once owned the painting, that he had sold it to Mrs. Lehman, and that it was part of a private collection as of the date of the invoice. On or about August 23, Daniel Wildenstein, of the Wildenstein Institute of Paris, certified the painting’s authenticity, but made no mention of the defendants’ alleged ownership interest in it. On or about August 25, 2000, Mandarin purchased the painting for $11.3 million, which it wired to Calypso Fine Art Ltd. Calypso then allegedly paid $9.5 million to Peintures Hermes S.A., which, in turn, transferred $8.8 million to an account of Allez la France Ltd., in which defendants purportedly had an interest. Mandarin also alleged that at least $2.3 million was paid to intermediaries in connection with the sale. Christie’s tried to sell the painting at its November 8 auction, but received a high bid of only $9 million, less than the reserve, and Mandarin retained the painting.

Six years later, shortly before the running of the statute of limitations, Mandarin filed this complaint, which contains claims for fraudulent misrepresentation and omission for defendants’ failure to disclose their ownership interest and inflation of the appraisal; fraudulent concealment based on defendants’ expert status; negligent omission and misrepresentation as a “special relationship of trust or confidence existed between” the parties based on defendants’ expertise; breach of the contract to provide an appraisal, as a third-party beneficiary; breach of the duty of good faith and fair dealing in connection with such contract; and unjust enrichment as defendants benefitted by receiving more than the painting’s value. Central to each of the six causes of action is a specific allegation that the defendants failed to disclose their ownership interest in the painting, as well as an allegation that the defendants appraised the painting for a substantially higher value than it was worth.

Prior to serving an answer defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). They argued there was no fraud as the appraisal contained a nonactionable opinion, that the unjust enrichment claim was without merit as the Christie’s bid of $9 million was more than the $8.8 million *458defendants allegedly received, and that there was no privity between the parties.

Mandarin responded that the opinion was actionable as it was expressed with knowledge of its falsity, and that defendants were unjustly enriched as they received at least $9.5 million through Peintures, and, upon information and belief, may have received the full sale price.

The court granted the motion in its entirety. Making a factual finding on this pre-answer motion to dismiss, it found that since the record did not establish that defendants knew of Mandarin, and there was no indication that Mandarin would rely on the appraisal, no cause of action for fraudulent misrepresentation was stated. It further found that the fraudulent concealment claim could not be sustained as it required the additional element of a duty to disclose arising out of a fiduciary or similar relation of trust and confidence, which was not satisfied by allegations of defendants’ superior knowledge or expertise.

The court also found that Mandarin failed to establish a claim for negligent misrepresentation or omission, as defendants were not in a special position of trust and confidence with Mandarin, their expertise did not per se create a fiduciary relation, there was no contract of privity between the parties, and Mandarin had not even alleged that defendants’ conduct evinced an understanding of Mandarin’s reliance.

The court further found that Mandarin’s failure to disclose its relationship with Reymondin and identify the provision alleged to have been breached, or to plead the provisions of the contract, mandated dismissal of the breach of contract claim. Finally, in dismissing the unjust enrichment claim, the court found that plaintiff was not entitled to rely on the appraisal despite the allegation that it had requested the appraisal in the first instance.

It is axiomatic that on a CPLR 3211 motion to dismiss, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the plaintiff accorded the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Where an issue cannot be resolved as a matter of law, and a factual question is presented, the motion to dismiss must be denied (Condren, Walker & Co., Inc. v Wolf, 19 AD3d 151, 152 [2005]). “[A] dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Martinez at 88).

Preliminary to any assessment of the viability of the causes of action is the recognition that the complaint alleges that *459Wildenstein, at the time he gave his “opinion,” and stated that his firm had “once” sold the painting, had an interest in the ownership of the painting. Nothing in the record contradicts this allegation. There is certainly nothing in the record to establish as a matter of law that the defendants did not have an interest in the painting at the time of the issuance of the “opinion,” or of the sale itself. Thus, in reviewing the challenges to the complaint it must be assumed that the defendants had a contemporaneous ownership interest in the painting. Additionally, since the complaint specifically alleges that Cohen recommended Wildenstein to provide the appraisal, after Mandarin requested an appraisal, it should also be assumed that Wildenstein’s written statement as to the painting’s value was made at Mandarin’s request, and that Wildenstein was aware that Mandarin would rely on it.

The majority makes a factual finding that the parties did not know of each other, and that Wildenstein did not know the reason for the appraisal, despite the absence of any documentary evidence for this assertion. The majority also concludes that the appraisal contains no facts which were misstated, despite the allegations in the complaint that Wildenstein, with a present interest in the painting, knowingly overstated the value of the painting without disclosing his interest.

The elements of a fraudulent misrepresentation claim consist of “a misrepresentation or a material omission of fact which was . . . known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party . . . and injury” (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). A claim for fraudulent concealment “requires additionally setting forth that the defendant had a duty to disclose material information” (Swersky v Dreyer & Traub, 219 AD2d 321, 326 [1996]). Such a duty arises where a fiduciary or confidential relationship exists between the parties (see Dembeck v 220 Cent. Park S., LLC, 33 AD3d 491, 492 [2006]).

It is clear that the first two causes of action for fraudulent misrepresentation are sufficiently pleaded. They allege that Mandarin sought an appraisal before purchasing the painting, that Wildenstein issued an appraisal upon which Mandarin relied, that Wildenstein failed to disclose his ownership interest in the painting, and that his appraisal grossly inflated the value of the painting. Furthermore, the appraisal itself contains the affirmative statement that his firm once sold the painting. Discovery will establish whether Wildenstein had an ownership interest in the painting at the time of the appraisal, but, if he or *460his firm did, the representation that he “once” sold the painting was clearly designed to conceal the possibility that he or his firm had a present interest in the painting.

The claim for negligent misrepresentation is likewise sufficiently pleaded. By alleging that the appraisal was prepared at its request, Mandarin claims the existence of a “relationship so close as to approach that of privity” (Parrott v Coopers & Lybrand, 95 NY2d 479, 483-484 [2000]). The elements of the cause of action, “(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance” (id. at 484 [citations omitted]), are gleaned from the allegations that Wildenstein prepared the appraisal for Mandarin’s use in determining whether to purchase the painting.

Unlike the circumstances in Ravenna v Christie’s Inc. (289 AD2d 15 [2001]), upon which the majority relies, it is alleged here that the appraisal was made for a prospective buyer of a painting in which the preparer had an undisclosed interest. In Ravenna the court specifically noted that a business relationship had not been created (id. at 16). Again, discovery would explore the nature of the relationship, if any, but, at this juncture, it cannot be said as a matter of law that a business relationship did not exist, even if through intermediaries.

Mandarin also pled sufficient facts to establish that it was an intended beneficiary to the appraisal contract and thus its claims for breaches of contract and the implied covenant of good faith and fair dealing should not have been dismissed. A party “asserting third-party beneficiary rights under a contract must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for their benefit and (3) that the benefit to them is sufficiently immediate ... to indicate the assumption by the contracting parties of a duty to compensate them if the benefit is lost” (Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786 [2006] [internal quotation marks omitted]). While the consideration to be rendered for the appraisal is not specified, the complaint nevertheless alleges Wildenstein prepared the appraisal at the request of intermediaries, as a result of Mandarin’s initial request, and that Mandarin would rely upon the appraisal in order to buy the painting. If true, Wildenstein’s failure to advise of his interest in the painting, or to provide an honest appraisal, would expose him to liability. Thus, the fourth and fifth causes of action are also sufficiently pleaded.

*461The claim for unjust enrichment should also be sustained. “The essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 [1972], cert denied 414 US 829 [1973]). The majority makes a factual finding that plaintiff had no right to rely on the appraisal, in the absence of any evidence. I submit, respectfully, that the allegations that Wildenstein actually had an interest in a painting which he overvalued, with the knowledge that an unwitting buyer would rely upon it, and that he profited unjustly, sufficiently make out a claim that Wildenstein benefit-ted inequitably from the transaction, and should return his gain. This is not the juncture at which findings of fact are to be made, particularly since there is no conclusive documentary evidence indicating otherwise (see Martinez, 84 NY2d at 88).

A plaintiff is not obligated to supply evidentiary support for his claims when faced with a pre-answer motion to dismiss (see Salles v Chase Manhattan Bank, 300 AD2d 226, 228 [2002]). I must part company with the majority’s plaint that the record does not support plaintiffs allegations. The record neither proves nor disproves the allegations. The answer to all of the questions posed by the majority would hopefully have been obtained during discovery. In the interim, I believe the allegations of the complaint were sufficient to withstand dismissal.

Finally, I agree with the concurrence to the extent it suggests that if defendant inflated the appraisal knowing that plaintiff would rely on it, and received a monetary benefit from such reliance, a cause of action for unjust enrichment would lie. I disagree, however, with the suggestion that what is alleged is mere nondisclosure. If Wildenstein had an interest in the painting at the time he issued the appraisal, rather than a former interest, as suggested in the appraisal report, his conduct amounted to more than nondisclosure.

Since the record does not establish what the relationships of any of the parties were, or what was known or unknown by any of them, the need for discovery is evident, and the motion to dismiss should be denied. [See 17 Misc 3d 1118(A), 2007 NY Slip Op 52059(U).]