Judge Refuses to Halt Sotheby’s Auction of Monumental Basquiat Work
05/11/2018Earlier this week, Justice O. Peter Sherwood of the New York County Supreme Court rejected collector Hubert Neumann’s attempt to prevent Sotheby’s from auctioning off Jean-Michael Basquiat’s monumental work, Flesh and Spirit. Neumann sued Sotheby’s last week, alleging that the auction house breached its “promise” to allow him to “oversee and approve the marketing of all works consigned to Sotheby’s” from Neumann’s family collection. Unless Neumann succeeds in convincing an appellate court to reverse the decision, then Sotheby’s is free to auction Flesh and Spirit at its May 16 evening sale.
Hubert Neumann is the son of famed art collector and direct-mail mogul Morton Neumann who, along with his wife, Rose, amassed a world-renowned family art collection. Flesh and Spirit, however, was owned by Hubert’s late wife, Dolores, and it’s undisputed that when Dolores died in 2016, Flesh and Spirit became part of her estate. Moreover, Dolores dramatically disinherited Neumann in her will. “It is my desire and intent,” her will states, “that my husband, HUBERT NEUMANN, be disinherited by me to the fullest extent permitted by law because he has been physically abusive to me for decades and has threatened my life.” For his part, Neumann told the New York Post that he is “not accepting the fact that I did anything like that to her.”
Dolores’s estate consigned Flesh and Spirit to Sotheby’s in March 2018. The thrust of Neumann’s lawsuit is that the auction house “botched” the marketing of the work by “publiciz[ing] a depressed price estimate” of $30 million; he implies it could be worth more than three times that. To be clear, Neumann does not claim to own the work, nor does he challenge the estate’s right to sell it. Instead, he argues that, because the estate wanted to sell it through Sotheby’s, he should have been consulted. That’s because, he says, he and Sotheby’s already had a standing agreement entitling him to total control over how Sotheby’s marketed artwork from the Neumann family; the agreement allegedly required Sotheby’s to obtain Neumann’s “approval on all matters relating to cataloguing, placement, and exhibiting each and every work consigned” from his family’s collection. And Neumann argued that Flesh and Spirit constituted part of this collection. Even though Dolores bought the work and then disinherited Neumann, he argued that New York law still entitles him to one-third of the value of her estate. For its part, Sotheby’s rejected the idea that Flesh and Spirit was part of the family collection, arguing that Dolores alone owned and possessed the Painting.
On the basis of his purported agreement with Sotheby’s, Neumann sought to enjoin Sotheby’s from proceeding with the auction. But Justice Sherwood rejected Neumann’s motion. At a hearing on May 7, the judge repeatedly questioned Neumann’s counsel about Neumann’s rights to control the disposition of the work, opining that “your client is as much a stranger to this [work] as I am.” Ultimately, Justice Sherwood held that Neumann was not likely to succeed on the merits of his claim, noting that he was “at a loss to understand how [Neumann] can exercise authority over a piece of work that he and the interest[s] that he represents have no entitlement to,” and moreover ruling that, whatever agreement may have existed between Neumann and Sotheby’s concerning Neumann’s rights to control the marketing of certain artworks, it did not extend to Flesh and Spirit.
Neumann is appealing Justice Sherwood’s decision, arguing that he can still succeed on the merits of his claims. But come May 16, if Neumann’s efforts ultimately prove unsuccessful, Sotheby’s will be free to sell Flesh and Spirit to the highest bidder.
Art Law Blog