| Malanga v Chamberlain |
| 2010 NY Slip Op 01767 [71 AD3d 644] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Gerard Malanga, Respondent, v John Chamberlain,Appellant. |
—[*1] McLaughlin & Stern, LLP, New York, N.Y. (Peter R. Stern of counsel), forrespondent.
In an action, in effect, for replevin and to recover damages for conversion, the defendantappeals from an order of the Supreme Court, Kings County (Schneier, J.), dated August 13,2008, which denied his motion for summary judgment dismissing the complaint, and granted theplaintiff's cross motion for leave to amend the complaint to add causes of action.
Ordered that the order is affirmed, with costs.
The plaintiff is an artist, photographer, poet, and film maker who, from 1963 through 1970,was an assistant to the late artist, Andy Warhol, who died in 1987. One of the plaintiff's principalfunctions was to assist Warhol in the creation of silkscreen paintings. The defendant is a sculptorand painter whose work has been exhibited throughout the world for many years.
In or around late 1971, after leaving Warhol's employ, the plaintiff, with the help of twoother artists, including Jim Jacobs, allegedly created more than 300 silkscreen portraits of thedefendant on canvas panels in the style of Warhol (hereinafter the canvas panels), based upon aphotograph of the defendant which the plaintiff had obtained from an art gallery. After thecanvas panels were completed, they were left in Jacobs's possession. In late 1977 the defendant,at Jacobs's request, allegedly agreed to store the canvas panels in his loft.
The plaintiff alleged that, through the years, he was unaware of the location of the canvaspanels. However, the plaintiff explained that, when he met the defendant at an art exhibition in2004, the defendant allegedly informed him that the canvas panels had been sold. According tothe defendant, the canvas panels had, in fact, been created by Warhol himself, who gave them tothe defendant in exchange for certain artwork the defendant had created. The defendant assertedin an affidavit that he thereafter had the individual panels assembled into one piece of artwork,known as the "315 Johns." It was this piece of artwork that he allegedly sold in or around 2000for several million dollars.
On December 27, 2005, the plaintiff commenced this action sounding in conversion and[*2]seeking the return of the canvas panels. The defendant movedfor summary judgment dismissing the complaint on the ground, inter alia, that the cause of actionalleging conversion was time-barred. The Supreme Court correctly denied that branch of themotion since the defendant failed to establish his prima facie entitlement to judgment as a matterof law on this ground (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Thecontrolling three-year statute of limitations for conversion and replevin (see CPLR 214[3]; Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311, 317 [1991]) runs from theearlier of the time when a defendant refuses to return the property after a demand, or the timewhen the defendant disposes of the property (see Matter of White v City of MountVernon, 221 AD2d 345, 346 [1995]; Bernstein v La Rue, 120 AD2d 476, 477[1986]; Johnson v Gumer, 94 AD2d 955 [1983]). Here, in correspondence from theplaintiff's attorney dated October 11, 2005, the plaintiff demanded that the defendant return thesubject canvas panels to him. The plaintiff commenced the action only two months after thedemand, on a date clearly within the applicable three-year period. While the defendantcontended in his moving papers that the plaintiff's action was time-barred since the defendantsold the canvas panels by late 2000, he failed to conclusively establish that such a sale hadoccurred. The additional evidence regarding the purported sale, which the defendant submittedfor the first time in his reply papers, was not properly before the court (see Voytek Tech. vRapid Access Consulting, 279 AD2d 470, 471 [2001]).
In addition, the defendant argued that the action was barred by the equitable doctrine oflaches. The Supreme Court properly denied that branch of the defendant's motion which was forsummary judgment dismissing the complaint on that ground since triable issues of fact exist as towhether the plaintiff's delay in making a demand and commencing this action was unreasonableand inexcusable (see Waldman v 853St. Nicholas Realty Corp., 64 AD3d 585, 588 [2009]), and whether the delay resulted inprejudice to the defendant (see Martin v Briggs, 235 AD2d 192, 199 [1997]).
Contrary to the defendant's contention, the Supreme Court properly granted the plaintiff'scross motion for leave to amend the complaint to add causes of action. "In the absence ofprejudice or surprise to the opposing party, leave to amend a pleading should be freely grantedunless the proposed amendment is palpably insufficient or patently devoid of merit" (G.K. Alan Assoc., Inc. v Lazzari, 44AD3d 95, 99 [2007], affd 10 NY3d 941 [2008]; see Unger v Leviton, 25 AD3d 689, 690 [2006]). Here, theproposed amendments were not palpably insufficient or patently devoid of merit, and thedefendant failed to establish that he would be surprised or prejudiced by the amendment (see Gitlin v Chirinkin, 60 AD3d901, 901-902 [2009]).
The defendant's remaining contentions are without merit. Prudenti, P.J., Dillon, Eng andRoman, JJ., concur. [Prior Case History: 20 Misc 3d 1134(A), 2008 NY Slip Op51724(U).]