Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc.
211 A.D. 2d 77, 1995 N.Y. App. Div. LEXIS 4583, 626 N.Y.S.2d 74 (1995)
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Rule of Law:
A living artist's repudiation of a work attributed to them is not conclusive, dispositive evidence of its inauthenticity. Such a declaration can be rebutted by other evidence, such as strong provenance and the artist's prior conduct, creating a triable issue of fact that precludes summary judgment.
Facts:
- The drawing 'Colette de Profil' was created around 1954 and attributed to the artist Balthus.
- In the late 1960s, Gertrude Stein acquired the drawing directly from Frederique Tison, who was then married to Balthus and who provided a certificate of authenticity.
- In 1980, Dr. George Szabo, a museum curator, included the drawing in a widely distributed catalogue for a prestigious Balthus exhibition.
- Balthus reviewed the 1980 catalogue and, while objecting to editorial comments, did not suggest the drawing was inauthentic.
- In 1988, Herstand & Co. acquired the drawing on consignment from Gallery Gertrude Stein.
- Around 1990, and on two subsequent occasions, Balthus was shown photographs of the drawing and declared in writing that it was a fake.
Procedural Posture:
- Herstand & Co. sued Gallery Gertrude Stein in the Supreme Court of New York County, a state trial court, seeking to rescind a consignment contract for a drawing.
- Herstand & Co. filed a motion for summary judgment, arguing that the artist Balthus's written declarations that the drawing was a fake were conclusive proof.
- The trial court granted summary judgment in favor of Herstand & Co., rescinded the contract, and awarded Herstand & Co. damages.
- Gallery Gertrude Stein, as appellant, appealed the trial court's judgment to the Appellate Division of the Supreme Court, with Herstand & Co. as appellee.
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Issue:
Is a living artist's written declaration that a work of art is a forgery, by itself, conclusive proof of the work's inauthenticity sufficient to justify granting summary judgment for rescission of its sale?
Opinions:
Majority - Wallach, J.
No. An artist's repudiation of a work is not the 'final word' on its validity and does not automatically entitle a party to summary judgment. The court reasoned that Herstand's entire case for summary judgment rested on Balthus's written declarations, which are inadmissible hearsay and cannot, by themselves, support such a judgment. In contrast, Stein presented sufficient evidence to create a triable issue of fact regarding the drawing's authenticity. This evidence included the work's strong provenance, having been acquired directly from the artist's wife with a certificate of authenticity, and Balthus's prior conduct in 1980, when he implicitly acknowledged the drawing's legitimacy by not objecting to its inclusion in an exhibition catalogue. The court also cited historical examples of famous authors denying their own genuine works to illustrate that an artist may have various motives for repudiation, further supporting the need for a trial to explore all evidence.
Analysis:
This decision establishes that in art authentication disputes, an artist's declaration is powerful but not legally absolute. It reinforces the importance of extrinsic evidence, particularly provenance, in determining authenticity. The ruling protects the art market by preventing summary judgment based solely on an artist's potentially subjective or motivated statement, ensuring that such disputes are resolved through a full trial where all evidence can be weighed. It clarifies the evidentiary standard for summary judgment, affirming that hearsay alone cannot be the basis for granting the motion, though it may be used to defeat one.
