calder complaint against perls gallery

7/22/2019 Calder complaint against Perls Gallery

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-----------------------------------------------------------------X Index No. 651 7 60/201 0SANDRA CALDER DAVIDSON, MARY CALDERROWER and SHAWN DAVIDSON, as Executorsofthe Estate ofALEXANDER CALDER, Deceased,

Plaintiffs,-against-KATHERINE PERLS, individually, and asExecutrix of the Estates ofAmelia B. Perls and Klaus G. Perls,THE PERLS FOUNDATION, Jane Doe a/k/aMADAME ANDRE, and LENNART BRABERG,

Defendants.-----------------------------------------------------------------XSTATE OF NEW YORK )) ss:COUNTY OF NEW YORK )

AFFIDAVIT IN SUPPORTOF MOTION TO AMENDTHE COMPLAINTMOTION SEQUENCE NO. 5

ALEXANDER S.C. ROWER, being duly sworn deposes and says:1. I am Alexander Calder's ("AC") grandson and the son of plaintiff

executrix Mary Calder Rower. My mother died on June 28, 2011 and I was appointed asuccessor executor in April, 2012 (Ex. 11). I am also the Chairman and President of TheCalder Foundation ("CF") and a trustee of a trust created by AC's last Will and Testament andwhich holds AC's residuary estate.

2. I am personally familiar with the facts and circumstances herein andsubmit this affidavit in support of plaintiffs' motion to amend the complaint (Ex. 1) to add fivecauses of action (fourth through eighth causes of action) for: breach of contract (Ex. 2 pars. 61-69); breach of fiduciary duty (Ex. 2 pars. 70-74); an accounting (Ex. 2 pars. 75-85); trustand/or constructive trust (Ex. 2 pars. 86-90); and unjust enrichment (Ex. 2 pars. 91-93).

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ILED: NEW YORK COUNTY CLERK 11/30/2012 INDEX NO. 651760/

SCEF DOC. NO. 113 RECEIVED NYSCEF: 11/30/


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The Proposed First Amended Complaint (Ex. 2)3. I have read the proposed First Amended Complaint (Ex. 2), and I concur

with the allegations and statements contained therein. Exhibit 3 is a redline comparing theoriginal Complaint (Ex. 1) with the proposed First Amended Complaint (Ex. 2) demonstratingthe additions and deletions in the proposed First Amended Complaint.

4. The original Complaint dated October 14, 2010 (Ex. 1) named DouglasMayhew ("DM") and Roberto Caballero ("RC") (collectively, the "Mayhew Defendants") astwo of six defendants in this action. On or about April 29, 2011, this action was discontinuedwith prejudice against former Mayhew Defendants pursuant to a settlement agreement.

5. Pursuant to this Court's Order dated May 5, 2011 (Ex. 4), this Courtordered, inter alia, that this action against the Mayhew Parties is severed, the case caption shallbe amended accordingly to remove the Mayhew Parties names, and the action continues againstthe remaining defendants (the "Perls Defendants"). In furtherance ofthe Court's Order, thefifth through seventh causes of action against solely the Mayhew Defendants have been deletedin the proposed First Amended Complaint.

6. Additionally, the proposed First Amended Complaint is streamlined as itconsolidates certain causes of action against the Perls Defendants. The proposed FirstAmended Complaint consolidates the second and eighth causes of action for replevin which isnow the second cause of action in the proposed First Amended Complaint, and consolidates the

fourth and tenth causes of action for breach of bailment which is now the third cause of actionin the proposed First Amended Complaint (Ex. 2).

7. I am advised that leave to amend a complaint should be freely granted on

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such terms as are just and that the law clearly favors amendment when the substantial rights ofa party are not prejudiced. A review of the substance ofthe proposed First AmendedComplaint and the underlying facts demonstrates that plaintiffs have not alleged any new factswhich the defendants are not already aware of. Defendants cannot claim any prejudice orsurprise. As explained below, some of the new facts in the proposed First AmendedComplaint were not known to plaintiffs until discovery from the Mayhew Defendants and thePerls Defendants in this action.Background

8. All ofAC's property, including works of art, mobiles, stabiles, paintingsand sculptures, owned by AC at the time of his death, belong to the Estate of AC ("Estate")pursuant to AC's last Will and Testament, to be disposed of as directed in AC's will. AC diedin 1976 and the CF was created by AC's family as a private operating foundation more than adecade later in 1987. All of the Correspondence1 and AC's works of art, AC's property andAC's assets (collectively, "AC Property") belonged to AC prior to his death and since thenhave belonged to the Estate.

9. In short, this is a case of fraud, breach ofbailment and replevin, wherethe defendants Katherine Perls ("KP") individually, and as Executrix ofthe Estates of Amelia"Dolly" B. Perls ("ABP") and Klaus G. Perls ("KGP), The Perls Foundation ("TPF"), LennartBraberg ("LB") and/or Madam Andre ("MA") (collectively, the "Perls Defendants") came into

possession ofAC Property through The Perls Galleries ("PG") longtime position-over 20years-as AC's exclusive American gallerist and dealer from 1954 until AC's death in 1976

1 "Correspondence" is defined in the Complaint (Ex. 1 footnote 2).

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(Ex. I par. 14).

After AC's Dealer Curt Valentin Died in 1954,AC's Proper ty Was Transferred To His New Dealer PGI0. Until I954, AC's exclusive American dealer and gallerist was the Curt

Valentin Gallery ("CVG") owned and operated by Curt Valentin ("CV") (Ex. 1 par. 14). UntilCV's death in 1954, CVG kept a large inventory of works on consignment from AC and manyother personal items belonging to AC (Ex. 1 par. 14). After CV's death, AC selected PG inNew York City as his American dealer and gallerist - a relationship that lasted until AC's deathin 1976 (Ex. 1 par. 14). PG was owned and operated by KGP and his wife ABP (Ex. 1 par.11). After CV's death, all of the AC Property in CV's possession was transferred to PG forsafekeeping as AC's new American dealer (Ex. 1 par. 14).

11. Upon PG's dissolution in or about 1997 (Ex. I par. 12), PG'sprincipals, i.e. KGP and ABP, became the successor bailees, fiduciaries, and/or trustees of allAC Property in their respective possession. When KGP and ABP died, in, respectively, 2008and 2002, their daughter defendant KP as the executrix ofKGP and ABP' s estates togetherwith the defendants TPF, LB and MA became the successor bailees, fiduciaries and trustees ofall of AC Property in their respective possession.

12. In a letter dated April 12, 1996 from ABP to me (Ex. 5),2 ABP concedes

2 The date of Exhibit 5 is April 12, 1996 and not 1995. KGP and ABP visited CF inWoodstock, New York on December 4, 1995. I followed up with a letter to KGP and ABP thefollowing day (Ex. 6). ABP then sent me Ex. 5 in the following April, i.e. April I996. As isclear from the face of Ex. 5 with many glaring typing mistakes, ABP was a bad typist andinitially typed I994 and then typed I995 over it, but she got it wrong both times. It was 1996and not I995.

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that PG "took over" from CV after his death and "there's all kinds of things that we've beenhanging onto since we took over after poor Curt [Valentin] died . . . . hey sent us piles ofSandy's [AC's] things on these kind of sleds3 and we slowly sorted it all out" (Ex. 5).

Unknown To The Estate, At The Time Of AC's Death in 1976,PG Possessed Many Items Of AC Property Which Were Never Inventoried

13. ABP confirmed in her 1996 Jetter (Ex. 5) that PG possessed many itemsof AC Property, including without limitation personal property belonging to AC, such as AC'soriginal letters, viz., the Correspondence, certain early works on paper, and a large stock of ACProperty from the artist's former dealer CV, i.e. "piles of Sandy's [AC's] things on these kind ofsleds" (Ex. 5). Such AC Property was never intended for sale by AC and were never a part ofthe PG inventory of AC works for sale- see Ex. 5 in which ABP states "we never bothered toeven inventory them." ABP's statements clearly do not indicate the subject AC Propertybelonged at any time to anyone other than AC.

14. Pursuant to ABP' s April, 1996 letter (Ex. 5), ABP "promised" she is"going to gather up what all we have from Sandy [AC] for your files" (Ex. 5). ABP expressedher promise ofthe AC Property in her Aprill996letter (Ex. 5) and promised to deliver suchAC Property at a later date. Although plaintiffs and the Estate respect ABP's and KGP'sbelated "generosity," it is the plaintiffs' position that all such AC Property legally belongs tothe Estate.

3 The word "sleds" appears to be a mistake and should be "skids."

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The Mayhew v Perls Action415. In 2005, DM sued PG, KGP, KP, MA and LB (Ex. 6), i.e. the Mayhew v

Perls action. The Mayhew v Perls action settled in June 2006 (Ex. 7). Significantly, thedefendants in their Answer in this action (Ex. 8 pars. 22-24) deny possession oftheCorrespondence and other AC Property. However, it was not until discovery in this actionwhen the settlement agreement (Ex. 7 bates stamped DMRC 00001-00015i was produced bythe Mayhew Parties in 2011, that plaintiffs first became aware that the defendants allowed theMayhew Parties, without the knowledge, consent or approval of the plaintiffs, to unlawfullyplace the Correspondence and other AC Property in escrow pursuant to the Mayhew v Perlssettlement agreement (Ex. 7 par. 9). Pursuant to that settlement agreement, the Correspondenceand other AC Property were released from escrow into PG's possession, custody and control in2011 (Ex. 7 par. 9), after this action had commenced.

16. Moreover, it was not until the Mayhew v Perls settlement agreement wasproduced in this action that the level of deception perpetrated against the Estate by the PerlsDefendants was realized. Ex. 9 contains three letters from me to KP dated August 18, 2008,September 9, 2008 and May 19,2009. Each ofthose letters requests assistance from KP toretrieve the AC Property promised by her mother ABP. In the September 9, 2008 letter (Ex. 9)I memorialized KP's representations to me that she would "be looking out for those letters anddocuments in your [KP's] father's house." I further stated in that letter that "I believe there maybe more material in Klaus 's [KGP] house that properly belongs to my grandfather's estate .. ."

4 "Mayhew v Perls action" is defined in paragraph 2 ofthe Complaint (Ex. 1 par. 2).5 "DMRC" is an acronym for former defendants Douglas Mayhew and Roberto Caballero.

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(Ex. 9). KP's representations to me were unequivocally false as she was aware all along thatthe CoJTespondence and other AC Property was being held in escrow pursuant to a June 2006settlement agreement (Ex. 7 par. 9) and would be (and was) released to KP in 2011.PG's Inventory Ledger And The Need For An Accounting

17. Prior to this lawsuit, KP had repeatedly represented to me that there wasno PG inventory ledger concerning AC's works of art that were consigned to PG by AC. Iunderstand that after this action commenced, the Perls Defendants' counsel Steven Wolfe,Esquire made the same representations to plaintiffs' counsel Aaron Richard Golub, Esquire.Notwithstanding that KP and her counsel had previously and repeatedly denied the existence ofsuch a KP ledger or inventory, on March 14, 2012, the PG inventory ledger miraculouslyappeared. The Perls Defendants, by their counsel, produced only a redacted portion of the lefthand side ofPG's inventory ledger (Ex. I 0) as part of discovery in this action. The right handside of the ledger was not produced.

18. Upon examination of the incomplete PG inventory ledger, and subject tofurther discovery, there appears to be approximately 679 AC works of art, which do not appearin PG's inventory ledger, notwithstanding that other AC records indicate PG being listed aspart of the provenance history of the approximately 679 AC works of art. Moreover, of theapproximately 679 AC works of art which do not appear on PG's inventory ledger, subject tofurther discovery, approximately 529 of such AC works not only have PG listed in the

provenance, but the PG inventory numbers assigned to such AC works are known and originalPG inventory photographs of such AC works of art exist. PG inventory photographs arephotographs that PG took of items from their inventory along with notes on the back of the

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photographs and a rubber stamp on the back bearing the gallery's name. This begs the questionas to why these hundreds of AC works do not appear in PG's inventory ledger. This discoverywarrants, among other things, a full, accurate and detailed accounting with respect to all of PG,KGP and ABP's transaction history and business activities concerning AC and the proceedsgenerated therefrom and all amounts owed by the Perls Defendants to plaintiffs.

WHEREFORE, it is respectfully requested that plaintiffs' motion be granted infull, together with such other and further relief as to this Court seems ju

Sworn to before me this30th day ofNovember 2012

Kana S. SoDDNotary Publk. State ofNew York. No.I#02806135695QaalifkciJaWesCebester1 ' ~ - _.,..........,. 6, 10-,-J

ALEXANDER S. C. ROWER

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calder complaint against perls gallery

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