Category Archives: Litigation

This was originally published on the SGR Blog.

Trial Court Decides Liability for Damages

Terrence M. Kalka filed suit in the City Court of Little Falls, Herkimer County, on August 18, 2021, seeking $4,975 in damages against Ronald Schorer and John Lerch. Schorer filed a counterclaim against Kalka on October 5, 2021 seeking $2,172 pursuant to a contract. The matter proceeded to trial on March 17, 2022 and was concluded on April 8, 2022.

Kalka and his spouse appeared and testified that he retained the services of Schorer/Lerch to replace the hot water heater and install a water softener. They negligently installed the heater causing damage to the plumbing, as well as water damage in the basement. The testimony was that the water was leaking from the main line for over an hour which flooded the basement causing damage to stored items in the basement, such as the Kalka’s clothing. Kalka testified that Schorer/Lerch damaged a sink in the basement and dirty water in the pipes clogged the kitchen sink, toilet, and washer as a result of negligently installing a hot water heater and water softener. Kalka testified that Schorer was present during that time, stayed upstairs, and was consulted periodically by Lerch about how to handle various situations that came up during the course of the work. The testimony was also that Schorer was present as the Village of Ilion repaired the water valve.

This was originally posted on the SGR Blog.

Did Owner Have Claim Over Against Third Parties for Triggering the Dispute?

Decisions often address claims by a defendant that the harm alleged by the plaintiff was caused by others—and result in so-called “third-party” claims for indemnification of contribution. As a recent case illustrates, the Court may be called upon to assess the viability of such claims.

In 2016 Pier Franco Grosso consigned to Phillips Auctioneers LLC artwork in exchange for an advance of $1.5 million. Grosso represented that the artwork was by the late artist Cy Twombly. Phillips estimated the work would sell for $2.5 million to $3.5 million. Under Paragraph 10(a) of the consignment agreement, Phillips was permitted to withdraw the work from sale if, in Phillips’ “sole judgment,”

This was originally posted on the SGR Blog.

ourt Parses Agreements and Arts and Cultural Affairs Law

Clean Art Works, Inc. operated the Marianne Boesky Gallery and served as the gallery representative for Diana Al-Hadid until 2019. During that time, Art Works advanced funds, such as studio rent and fabrication, and framing and crating costs, to Al-Hadid to further her career.

In 2009, Al-Hadid created a bronze sculpture fabricated in a five piece limited edition. An undated contract between Al-Hadid and Graphicstudio stated that Graphicstudio would fabricate the sculptures, three of which were numbered as 1/3, 2/3 and 3/3 and two numbered as “Artist’s Proofs” AP 1/2 and AP 2/2. The project was initiated in September 2009 and completed in February 2011.

This was originally posted on the SGR Blog.

Court Applies UCC and GOL Statutes of Fraud

One of the threshold issues in commercial disputes is often the characterization of the transaction and/or the relief sought. As a recent case involving various claims to the proceeds of the sale of a diamond based upon an alleged oral agreement illustrates, adjudication of the nature of the case may be dispositive when it comes to the defense of the statute of frauds.

Basal Trading and Sons Ltd. alleged an oral partnership agreement with M&G Diamonds, Inc. and Roman Malakov Diamonds, LLC. According to the complaint, the partnership interest was divided equally (50%-50%) between Basal and M&G/Malakov. The partnership owned a one-third interest in a non-party partnership, which owned three diamonds. Under the agreement, three of the parties contributed one half of one third, i.e., one sixth, of the purchase price of the diamonds, and were entitled to receive one half of one third, i.e., one sixth, of the proceeds arising from the sale of any and/or all of the diamonds.