AXA Art Ins. Corp. v Fortress Fine Art Stor.

Annotate this Case

Download PDF

AXA Art Ins. Corp. v Fortress Fine Art Stor. 2018 NY Slip Op 31205(U) June 14, 2018 Supreme Court, New York County Docket Number: 152982/13 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 152982/2013 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 06/14/2018 SUPREME COURT _OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54 ----------------------------------------x AXA ART INSURANCE CORPORATION a/s/o RICHARD AVEDON FOUNDATION, Index No.152982/13 Plaintiff, DECISION & ORDER -againstFORTRESS FINE ART STORAGE a/k/a FORTRESS NEW YORK HOLDINGS, INC., Defendant. ----------------------------------------x JENNIFER G. SCHECTER, J.: In September 2016, defendant served a subpoena duces tecum on non-party The Richard Avedon Foundation (Foundation), which is plaintiff's insured. The subpoena production of niri.e categories of documents. demanded A Foundation representative, Laura Avedon, was deposed in February 2017. She bring did not any documents to the deposition. Plaintiff's counsel, which represented the Foundation at the deposition, stated that all of the documents requested had already been produced. Defendant moved to compel compliance with the subpoena {Motion Sequence Number 005} and made this motion to vacate the note of issue based on outstanding discovery {Motion Sequence Number 006}. By decision and order dated August 15, 2017, this court ordered, among other things, that Ms. Avedon provide an affidavit that responsive documents were provided and that the Foundation produce a copy of the Representation Agreement (RA) 2 of 6 [* 2] INDEX NO. 152982/2013 NYSCEF DOC. NO. 220 AXA Art Ins. RECEIVED NYSCEF: 06/14/2018 Index No. 152982/13 Page 2 Corp. v Fortress Fine Art Storag_e with section headings so that defendant could broadly see what the RA dealt with. Defendant was then provided with an opportunity to conference with the court to discuss what, if any, sections that were withheld "are material and necessary to the defense of this action" (NYSCEF Doc. No. 148 at 2). Plaintiff produced the redacted RA and later affidavits from Ms. Avedon stating disclosed in June 2016, (NYSCEF Doc. No. 180 at that all are "all the responsive documents" ~ 2). A conference was held with the parties. stated then, repeated as through initially documents, Defense counsel it did in motion sequence number letter correspondence, that 005 the RA and is "clearly necessary to defendant's defense of this action" and that the entire agreement should be produced (except ·for sections 7-11) because it is "impossible for the defendant to know what the terms and conditions . . are when almost the entire document has been redacted" (Letter to Court dated September 27, 2017; Letter to Court dated April 30, 2018). It also seeks a condition report for "each work consigned" to the Gagosian Gallery consigned works (Gallery) prior to to determine the loss, insurance covering the photograph 3 of 6 all the value of certificates from December 1, the of 2011, [* 3] I INDEX NO. 152982/2013 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 06/14/2018 Index No. 152982/13 Page 3 AXA Art Ins. Corp. v Fortress Fine Art Storage through December 1, 2012 and any writing from the Foundation to the Gallery indicating that no claim was being made against the Gallery. Plaintiff urges that the evidence submitted prior to and after the motions were filed indicates that th,e photograph at issue was not consigned to the Gallery until the consignment agreement was signed in April 2012, which was after the date of loss. It further contends that the photograph was therefore not insured by the Gallery on the date of loss. Additionally, demanded by plaintiff the asserts defendant that and was the the RA, subject which of was motion sequence number 005, is irrelevant as it post-dates the loss (AXA Letter to Court dated January 10, 2018). Defendant has not established why the entirety of the RA is material and necessary in this negligence action and what, if any, sections would indicate that the Foundation was the subrogee of the Gallery (see Affirmation in Support 005 at 18). ~ Through correspondence, defendant has established that all certificates of insurance covering the date of loss, any condition reports pre-dating the loss and any claim letters to the Gallery related to the photograph necessary for the defense of this action. 4 of 6 are material and In light of the [* 4] INDEX NO. 152982/2013 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 06/14/2018 Index No. 152982/13 Page 4 AXA Art Ins. Corp. v Fortress Fine Art Storage very limited outstanding discovery that has now been clarified and ordered produced, the motion to vacate the note of issue is denied. Accordingly, it is ORDERED that defendant's motion to vacate the note of issue is denied; it is further ORDERED that within 20 days of the date of the e-filing of this decision and order plaintiff must produce: ( 1) all certificates of insurance covering the date of loss for the photograph, ( 2) any condition reports related to the photograph pre-dating the loss and (3) any claim letter(s) to the Gallery related to the photograph; it is further ORDERED that if plaintiff does not have documents responsive to the above or if all of the responsive documents have already been produced, then within 20 days of the date of the e-filing of this decision and order, plaintiff must provide defendant with an affidavit specifically stating that it has no responsive documents in its possession or control or that all of the documents ordered to be produced that are in plaintiff's possession or control have already been produced; it is further 5 of 6 [* 5] INDEX NO. 152982/2013 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 06/14/2018 AXA Art Ins. Corp. v Fortress Fine Art Storage ORDERED that the time to file a Index No. 152982/13 Page 5 motion for summary judgment is extended to 45 days from the date of the e-filing of this decision and order. This is the decision and order of the court. Dated: June 14, 2018 HON. JENNI 6 of 6 G. SCHECTER ,

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.