## Facts

- Sculptor Reuben Nakian and DiLaurenti Galleries Ltd. entered a five-year agency agreement (Mar. 13, 1985) appointing the gallery as exclusive agent and requiring “best efforts” to promote sales.
- The agreement authorized the agent to select and retain possession of works for exhibition and consignment, limited to works “reasonably” required to carry out the agreement.
- By Nov. 1986, the parties disputed the gallery’s performance, including accounting, “best efforts,” insurance, and continued possession of works.
- Reuben Nakian died on Dec. 4, 1986; Paul Nakian became executor.
- The dispute included (i) family-owned works asserted to be “not for resale” and (ii) works intended for a planned 1988 museum exhibition in Lisbon, Portugal.
- The exhibition had been planned for several years, but the gallery had not provided the museum access to works designated for display.
- Plaintiffs sued in diversity (Mar. 27, 1987) seeking rescission, return of artworks, and damages; after some discovery, the executor moved for a preliminary injunction (Sept. 21, 1987) to obtain specified works held by the gallery and its principal.

## Issues

1. Whether plaintiffs showed irreparable harm absent an order compelling release of specific artworks, particularly works needed for a scheduled museum exhibition and family works not intended for sale.
2. Whether plaintiffs demonstrated a likelihood of success on the merits, or at least sufficiently serious questions, regarding breach of the agency agreement (including “best efforts,” accounting, and the scope of authorized possession).
3. Whether the balance of hardships favored ordering immediate release of the works pending adjudication of rescission and damages.

## Decision

- The court granted a preliminary injunction.
- The court ordered the return or release of specified artworks in defendants’ possession, including works designated for the Lisbon exhibition and certain family-owned works not intended for sale.
- The court did not rescind the contract or award damages at this stage; the order preserved the estate’s ability to proceed with the exhibition and protect control over the works pending final resolution.

## Legal Principles

- Irreparable harm may be shown where the subject property is unique and non-fungible, and where loss of access threatens a one-time opportunity (such as a major museum exhibition) that money damages cannot adequately remedy.
- In the Second Circuit, a preliminary injunction may issue upon (i) irreparable harm and (ii) either likelihood of success on the merits or sufficiently serious questions going to the merits plus a balance of hardships tipping decidedly toward the movant.
- Contractual authority for an agent to retain possession of property is constrained by the agreement’s reasonableness limits and the agent’s performance obligations (including “best efforts” and proper handling and accounting).

## Conclusion

The court issued preliminary injunctive relief requiring defendants to release identified Nakian artworks because the estate showed non-compensable harm tied to a planned museum exhibition and raised substantial merits questions about defendants’ contractual performance and continued possession of works beyond what was reasonably necessary under the agency agreement.


Nakian v. DiLaurenti, 673 F. Supp. 699 (S.D.N.Y. 1987)