Amended Complaint Against Zwirner Reveals "Mystery Work" to be by Koons
08/23/2016An amended complaint has been filed in a case against art dealer David Zwirner, adding claims for violation of New York’s Arts and Cultural Affairs Law. As we recently discussed, Zwirner has been sued by UK entity Blue Art Limited (headed by dealer Fabrizio Moretti) over a $2 million deal gone bad. The initial complaint concealed the description of the artwork to avoid “possible further damage to the Work’s value,” but the amended complaint clarifies that the sculpture at the center of the dispute is Gazing Ball (Centaur and Lapith Maiden), by Jeff Koons.
Blue Art Limited alleged in its July 20 complaint that Zwirner failed to timely deliver the work and fraudulently misrepresented that the work would be completed within a reasonable timeframe. Zwirner has already moved to dismiss on the grounds that the complaint does not specify allegedly fraudulent statements by Zwirner personally, and that the contract did not provide a specified delivery date.
According to the amended complaint, filed on August 17, Zwirner promised to deliver the “second of a represented total of four casts.” But plaintiff received the last of the numbered casts, and other casts of the work received different numbers or were identified as “prototypes,” which, according to plaintiff’s theory, undervalues the work plaintiff intended to purchase. The amended complaint also seeks treble damages (increasing Blue Art’s purported damages from $2 million in the original complaint to $6 million in the amended complaint) for willful violation of the Arts and Cultural Affairs law, based on Zwirner’s alleged failure to disclose certain information about the sculpture to Blue Art Limited at the time of the agreement (including the number of casts produced, whether and how the purchased sculpture was numbered, and the existence of prior editions of the same sculpture). Blue Art argues that the Arts and Cultural Affairs Law was intended to protect purchasers from the “slippery practices of some art dealers.”
Zwirner, for its part, informed Artnet that the plaintiff has declined delivery of the work, and accuses plaintiff of “attempting to use the court system as a negotiation tactic.” The amended complaint highlights the significance of numbered, limited editions and the watering-down effect that additional editions and “prototypes” may have on market value. We will continue to monitor this case as it continues to develop.
Art Law Blog