## Facts

- Jerome M. Eisenberg, Inc. (Eisenberg), an antiquities dealer and appraiser, acquired from Maurice E. Hall, Jr. and related corporate dealers (Hall) a marble bust purportedly of Faustina II and a bronze warrior statue purportedly Etruscan or Roman.
- Hall’s business mainly involved European art; Hall characterized himself as an amateur collector of classical antiquities, and Eisenberg did not view Hall as an expert in that field.
- After Eisenberg resold the bust to a museum, the museum reported expert opinions concluding the bust was likely modern rather than ancient.
- Eisenberg later obtained expert feedback and metallographic testing indicating the bronze warrior statue was from the nineteenth or twentieth century, not ancient.
- Eisenberg alleged both transactions were made under a shared belief that the objects were ancient and sought rescission based on mutual mistake.
- The parties had prior dealings in which other items acquired from Hall were found inauthentic and the parties rescinded those transactions with refunds.
- Eisenberg moved for summary judgment on a breach-of-contract/rescission theory; the trial court denied that motion. The court also dismissed certain other causes of action on defendants’ motion.

## Issues

1. Whether the buyer was entitled to summary judgment rescinding the contracts for mutual mistake as to authenticity.
2. Whether triable issues existed that the buyer, as a sophisticated antiquities expert with reason to suspect authenticity problems, bore the risk of mistake through conscious ignorance.

## Decision

- The Appellate Division affirmed the order denying Eisenberg’s motion for summary judgment on the breach-of-contract claim seeking rescission.
- The court held Eisenberg was not entitled to judgment as a matter of law because factual questions existed as to whether Eisenberg assumed the risk of inauthenticity by proceeding despite limited knowledge.
- The appeal from the portion of the order dismissing other causes of action was dismissed as abandoned.

## Legal Principles

- A contract may be rescinded for mutual mistake when both parties share a mistaken belief about a basic assumption that materially affects the exchange.
- Rescission is unavailable when the party seeking relief bears the risk of the mistake, including when that party is aware its knowledge is limited but treats it as sufficient (conscious ignorance).
- Summary judgment is improper where evidence permits competing inferences about whether the party seeking rescission assumed the risk of the mistaken assumption.

## Conclusion

The court refused to grant rescission on summary judgment because, although the parties appeared to share an assumption that the artworks were ancient, a fact-finder could conclude that the expert buyer proceeded without adequate verification despite reasons to doubt authenticity and therefore bore the risk of the mistake.


Jerome M. Eisenberg, Inc. v. Hall, 147 A.D.3d 602 (N.Y. App. Div. 1st Dep’t 2017)