Case Review: Caterbetti v. Bloomgarden, et al

May 8, 2014

By Chris Michaels, Esq.

On 28 March 2014, a complaint filed in the Supreme Court of New York, County of New York, alleges violations of the consignor/consignee relationship between an artist and the gallery that undertook to sell his works. Plaintiff, Jorge Caterbetti is a professional Argentinean artist whose work comments and critiques legal, social, and political issues. The complaint, filed on behalf of Caterbetti by Matthew C. Kesten and Daniel S. Kokhba of the Kantor, Davidoff, Mandelker, Twomey, Gallanty & Olenick, P.C. firm against the Belenky Gallery of New York and its affiliates, alleges that the defendants lost approximately 65 pieces of Caterbetti’s artwork by failing to exercise all due and reasonable care in the handling, display and storage of the artworks.

According to the complaint, Caterbetti entered into two consignment agreements with the defendants whereby defendants agreed to make reasonable efforts to sell Caterbetti’s works. Pursuant to both agreements, defendants also agreed to exercise all due and reasonable care in handling and storing his work, to return any unsold works to the artist, and the parties to the agreements agreed that the consigned works would not leave the gallery until a payment had been made to the artist. Between 1999 and 2003, Caterbetti consigned approximately 105 pieces of artwork to defendants for sale.

In April 2013, after selling only three of the consigned works, the defendants advised Caterbetti that the gallery was closing. At the same time, the artist learned that the defendants had moved his works out of the gallery and into a storage facility in Manhattan. In an effort to recover his artworks, Caterbetti discovered that approximately 65 of his pieces were missing and that approximately 35 pieces were located in homes of defendants’ relatives.

Among other causes of action, the complaint alleges that defendants’ actions violated the consignment agreements, defendants were negligent in caring for Caterbetti’s paintings, and they breached a fiduciary duty owed to the artist as defined by the recently amended Article 12.01 of the New York Arts and Cultural Affairs law. As indicated in the complaint, Caterbetti is seeking damages in an amount in excess of $500,000, which represents the value of the artwork plus interest accrued from the date he was made aware of the loss in April 2013. Additionally Caterbetti is seeking attorneys’ fees and costs and expenses, which will likely exceed $25,000.

Plaintiffs are represented by Matthew C. Kesten and Daniel S. Kokhba of the Kantor, Davidoff, Mandelker, Twomey, Gallanty & Olenick, P.C. firm. The Gallery’s response is due 20 days from the date of service of the complaint, which, if served on the date of the filing, would have been April 17, 2014. To date, no answer to the complaint has been filed. If the case gains traction, it will be the first example of evoking the recently amended NY Arts & Cult. Affairs law to protect artist’s interests.

Sources:

• Verified Complaint, Caterbetti v. Bloomgarden, (N.Y. Sup. Ct. Mar. 28, 2014) (Index No. 152976/2014), available at https://docs.google.com/file/d/0B9yHAtGD-3ZGQUcwM0R2VnFqLUFCd1o4Z21pUUVHLTFYYkVj/edit?pli=1
• Jorge Caterbetti, http://www.jorgecaterbetti.com/bio.php
• N.Y. Arts & Cult. Aff. § 12.01: Artist-art merchant relationships, available at http://codes.lp.findlaw.com/nycode/ACA/C/12/12.01

About the Author: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (518) 421-7238, chriswmichaels@gmail.com, or on Twitter @CMichaels88.