## Facts

- Mark and Becky Levin purchased five Italian statues through an interior designer, Roger Harned, from Gallery 63 Antiques Corp. and its owner, Rochelle Sepenuk.
- The statues were to remain with the seller until the Levins’ home was ready; the seller obtained multiple favorable appraisals for insurance purposes.
- The Levins also obtained a favorable independent appraisal before completing the purchase.
- The seller issued an invoice describing the statues and stating each was signed by a named sculptor, without qualifying terms suggesting “studio of,” “workshop,” or “attributed to.”
- After the purchase, the Levins became suspicious that various artworks they acquired through Harned were not authentic or were materially overvalued.
- The Levins retained additional appraisers and concluded the statues were not necessarily original works by the named artists and were worth substantially less than the purchase price; studio production with a master’s signature was common in the relevant period.
- The Levins also alleged the statues’ physical condition differed from what was represented and relied on reports from their expert, Peter Sorlien, regarding condition and value.

## Issues

1. Whether plaintiffs presented admissible, competent evidence—particularly expert evidence—creating a triable issue that defendants breached warranties regarding the statues’ physical condition.
2. Whether the invoice and related descriptions created an express warranty as to authorship/attribution, and whether a factual dispute existed as to breach.
3. Whether plaintiffs produced sufficient evidence of fraud, including misrepresentation, scienter, and reasonable reliance, to survive summary judgment.
4. Whether, under Rule 56, any claims failed as a matter of law on the record presented.

## Decision

- The court granted in part and denied in part the parties’ cross-motions for summary judgment.
- The court granted defendants summary judgment on plaintiffs’ breach-of-warranty theory to the extent it was based on the statues’ physical condition.
- The court granted defendants summary judgment on plaintiffs’ fraud claim.
- The court denied summary judgment on at least some warranty disputes tied to authorship/attribution and value, leaving those issues for further proceedings.

## Legal Principles

- Under Rule 56, a party opposing summary judgment must present admissible evidence sufficient to create a genuine dispute of material fact; unsupported assertions or inadmissible expert opinions do not suffice.
- A breach-of-warranty claim dependent on specialized assessments (such as physical condition of artworks) generally requires competent expert evidence; an expert report’s stated assumptions and limiting conditions can defeat admissibility or weight at summary judgment.
- Fraud requires proof of reasonable reliance; evidence that a buyer received an independent warning that goods were overpriced can defeat reliance as a matter of law on an unrebutted record.
- Under UCC Article 2, an invoice or seller’s description identifying goods as associated with a particular artist can constitute an express warranty, and disputes over the meaning of such language and the work’s attribution may present fact questions not suitable for summary judgment.

## Conclusion

The court disposed of the Levins’ fraud claim and their warranty claim premised on the statues’ condition at the summary-judgment stage due to deficiencies in the record, while allowing portions of the warranty dispute concerning authorship/attribution and value to proceed because those issues turned on contested facts and the meaning of the seller’s descriptions.


Levin v. Gallery 63 Antiques Corp., 2006 U.S. Dist. LEXIS 70184 (S.D.N.Y. 2006)