Mirvish v. Mott

2008 NY Slip Op 33769(U)

• Court: Surrogate's Court, New York County
• Decided: December 30, 2008
• Docket: File No. 2916/2003
• Status: Unpublished
• Author: Renee R. Roth

Opinion

Mirvish v Mott 2008 NY Slip Op 33769(U) December 30, 2008 Surrogate's Court, New York County Docket Number: File No. 2916/2003 Judge: Renee R. Roth 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. - --+-·- - - -- - - - - - - - - - - - - -- - -- ···------ - -· ·

SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----- ----- ----- ----- ----- ----- ----- ----- --x David Mirv ish, JAN O2 2(fflg Petit ione r, • r •l ·1 . - -. l

File No. 291 &~ 2003 ' - again st-

Hanno D. Mott, Indiv idual ly and as Exec utor of the Last Will and Testa ment . .) of YULLA H. LIPCH ITZ, Dece ased, and the Estat e of YULLA H. LIPCH ITZ, Resp onden ts. ----- ----- ----- ----- ----- ----- ----- ----- --x

R O T H , S .

Incid ent to this conte sted disco very proce eding in the Mirv ish Art estat e of Yulla H. Lipc hitz, David Mirv ish, owne r of ng that Galle ry ("Mir vish" ) seeks summ ary judgm ent deter mini

deced ent, durin g her life, made a valid gift of a bronz e Fury, sculp ture ("The Cry") to her long- time comp anion , Biond

who, after deced ent died, sold it Mirv ish. The exec utor of the

gift was estat e, dece dent' s son, seeks a deter mina tion that the

inva lid.

The sculp ture was creat ed by dece dent' s pre-d eceas ed

husba nd, Jacqu es Lipc hitz, the noted artis t. Mrs. Lipc hitz

of art inhe rited "The Cry" along with many other valua ble works

in 1973 from her husba nd's estat e. Fury Aroun d 1996 Mrs. Lipch itz devel oped a relat ionsh ip with Over the (her comp anion ) which laste d until her death in 2003. in makin g years , deced ent gave vario us piece s of art to him and,

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------·----··-· ---------·--- -- ----- - - - -- - - [* 1] each such gift, gave him a picture of the artwork which was

attached to a written document describing the work and declaring

that it was a gift. On October 2,1997, consistent with her

practice, decedent gave him such a document in which she stated

''I gave this sculpture 'The Cry' to my good friend Biond Fury."

It appears that the couple kept many of these gifts in their

apartment, but "The Cry", which was very large, was stored with

Marlborough Gallery of New York when it was not being exhibited.

In 1998, the gallery lent the sculpture to the French government

with an agreement that at the end of the loan period, the

government had first right to negotiate its purchase. The

sculpture was in Paris when decedent died in 2003.

Beginning on March 9, 2004, the companion's attorney sent

several written notifications to the executor advising him of her

client's ownership of "The Cry". Thereafter, on September 15,

2005 the companion sold the statue to Mirvish, who in turn

notified the executor that he was now the owner and, as such,

demanded the sculpture. The executor, however, informed Mirvish

that, notwithstanding the claim of ownership by the companion, he

no longer had control over "The Cry", because he had sold it in

July 2004 to a foreign-based art gallery, Marlborough,

International.

Litigation then ensued between Mirvish and the executor to

establish ownership . Mirvish, brought a discovery proceeding in

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[* 2] -- - - - ----- - - - - - - -- - - - -- - - - -- - - -- - - -- - - this court, seeking a determination that the gift by decedent to

her companion was valid, and also instituted, inter alia, an

action against the executor for replevin and conversion.

In the course of the discovery proceeding Mirvish found

letters written by the executor to the French government, well

after his alleged sale of "the Cry" to Marlborough,

International, where he requested, both as executor of the estate

and as decedent's son and attorney, that the government either

agree to purchase the sculpture or return it to him. Given the

discrepancy between the contents of these letters and the

executor's claim to have sold the sculpture prior to having

written such letters, Mirvish speculated that the executor's

alleged sale may have been a sham meant to make it appear that

the statue was held by an entity without ties to the U.S. and to

otherwise interfere with Mirvish's recovery attempts.

Accordingly, Mirvish instituted an action in the Supreme Court,

New York County, against Marlboro, International to vacate the

sale. That action was recently settled and Marlboro,

International has returned the sculpture to New York to be held

in escrow pending a determination by this court of the validity

of the gift. It is noted that, as part of the settlement,

Mirvish withdrew all objections to distribution of any proceeds

of the purported sale from Marlboro International to the

executor.

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[* 3] Based upon such settlement, Mirvish has withdrawn his claims

for conversion and replevin and asks for a ruling on the

remaining question of the validity of the gift to decedent's

companion.

In order to prevail on a motion for summary judgment, movant

must make a prima facie showing of entitlement to judgment as a

matter of a law, by tendering sufficient evidence to demonstrate

the absence of any material issues of fact (Alvarez v. Prospect

Hosp., 68 NY2d 320). If a prima facie case is established, the

burden shifts to respondent to produce proof to establish the

existence of a material issue of fact sufficient to defeat the

motion (Alvarez v. Prospect Hospital, supra; Matter of Pollock,

64 NY2d 1156). Such issues of fact must be supported by specific

and detailed allegations which are substantiate d by evidence in

the record and show that the issues are real and capable of being

established at trial (Matter of O'Hara, 85 AD2d 669; Tancredi v.

Manino, 75 AD2d 579). Mere conclusory assertions will not

suffice (Matter of O'Hara, supra) and, in the absence of such a

triable issue of fact, the court may grant summary judgment

(Matter of Sweetland, 273 AD2d 739).

The law regarding the making of a valid inter vivos gift

is also well established. There must exist intent on the part of

the donor to make a present transfer; delivery of the gift,

actual or constructive ; and acceptance by the donee (Gruen v.

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- - - -- - - -- - - - - -- - ---- ---· -- ---- [*--4]--- · - Gruen, SOS NYS2d 849). The claimant of the gift has the burden

of proving such gift by clear and convincing evidence (id.)•

Where, as here, a gift is alleged to have been made by way

of a written instrument, the decedent's intent to effectuate an

irrevocable, present transfer of ownership must be clearly and

unambiguously discernible from the face of the document itself

(Gruen v. Gruen, 104 AD2d 171). The mere intention to make a

gift in futuro is not sufficient (Matter of Nolan, 61 NY2d 856,

Gannon v. McGuire, 160 NY 476).

It is now well established that delivery can be symbolic and

can be established by a declaration where the wording indicates

an antecedent transfer (Matter of Nolan, 61 NY2d 856, supra;

Matter of Monks, 171 Misc 2d 514). The Nolan Court, for example,

held that the statement "I am giving" was not evidence of an

antecedent transfer. In the instant case, however, the decedent

worded her intended transaction in the past tense, i.e. "I gave

this sculpture 'The Cry' to my good friend Biond Fury". Not only

is the wording indicative of an antecedent transfer, but it also,

clearly identifies the intended object and is consistent with her

long pattern of making gifts of similar items to her companion.

Based upon the foregoing, it is concluded that decedent, by

virtue of the deed of gift, intended to, and did, make a gift of

"The cry" to Biond Fury, which it is uncontested he accepted.

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[* 5] j ------- -·----------------- -------- Acco r ctingly, this decision constitutes the order of the

urt granting Mirvish's motion for summary judgment and denying thee xecutor's application for the same relief.

S U R R O G A T E

Dated: December jZ> , 2008

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