Tony Shafrazi Gallery, Inc. v Christie's Inc.

Tony Shafrazi Gallery, Inc. v Christie's Inc. 2012 NY Slip Op 09184 Decided on December 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2012
Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ. 8917-
112192/07 8918

[*1]Tony Shafrazi Gallery, Inc., Plaintiff, Guido Orsi, Plaintiff-Appellant-Respondent,

v

Christie's Inc., formerly known as Christie, Manson & Woods International, Inc., Defendant-Respondent-Appellant, John Doe 1, et al., Defendants.




Aaron Richard Golub, P.C., New York (Nehemia S. Glanc of
counsel), for appellant-respondent.
Andrews Kurth LLP, New York (Joseph A. Patella of counsel),
for respondent-appellant.

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 17, 2008, which, insofar as appealed from as limited by the briefs, granted defendant Christie's motion for summary judgment dismissing the breach of contract and breach of warranty causes of action, and order, same court (Shirley Werner Kornreich, J.), entered November 23, 2011, which granted defendant's motion for summary judgment dismissing the remaining fraud claims, unanimously affirmed, without costs.

As to the fraud claims, the record contains no evidence sufficient to raise an issue of fact whether defendant acted with the requisite intent (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Nor does the record support plaintiff Orsi's contention that defendant acted recklessly in accepting the painting for consignment (see State Street Trust Company v Ernst 278 NY 104 [1938]).

Orsi is not aggrieved by the dismissal of the breach of contract cause of action. In [*2]dismissing the breach of warranty cause of action on statute of limitations grounds, the motion court correctly relied on Hanover Square Antiques Limited v Insalaco (6 AD3d 258 [2005] lv. denied 5 NY3d 710 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2012

CLERK