Judge cites New York law protecting art buyers in lawsuit against Zwirner Gallery

Case centres on an editioned Gazing Ball sculpture by Jeff Koons


A judge in New York’s Supreme Court partially denied a motion to dismiss a lawsuit brought by Blue Art, a company owned by the Italian art dealer Fabrizio Moretti, against David Zwirner and his gallery. In his amended complaint, Moretti claims that Zwirner Gallery violated New York’s Arts and Cultural Affairs Law when the dimensions of a $2m Jeff Koons Gazing Ball sculpture that Moretti agreed to purchase in 2013, and paid for, allegedly changed by the time the editioned sculpture was ready to be delivered, as well as the way in which the edition was distributed. Although multiples are often priced according to where they fall in the edition, and buyers are largely at the mercy of dealers to deliver the specific work purchased, in this case all the versions of Koons's sculpture were offered at the same price.

“This is a victory for art purchasers and a landmark decision in that it is the first one to rule on an important law that is designed to keep New York’s art market clean and safe for buyers of sculptures and other editioned work,” says John Cahill, Moretti’s lawyer.

“To the extent Blue Art claims that the number of works in the edition changed, that is simply false. The series always was an edition of three and still is an edition of three,” says Gregory Clarick, the lawyer for Zwirner Gallery. “Blue Art is wrongly counting a prototype that is not a cast by Koons, never was for sale and will not be sold.”

Justice Barry R. Ostrager cites New York’s Arts and Cultural Affairs Law, which was updated in 1991 to include rules on the sale of works of at and sculpture produced in multiples, as the reason for his 26 October decision. “The statue at issue was designed to protect customers from fraud and deceptive practices in the sale of art multiples and reproductions. If we follow the defendants’ logic to conclusion, a purchaser who spends millions of dollars for a valuable artwork would potentially have to wait until the minute before the artwork is delivered to receive information concerning the artwork.”

The judge, however, threw out two counts of fraud and one count of promissory estoppel—essentially a broken promise—against Zwirner personally, removing the New York dealer from the case.

A spokeswoman for the gallery said: “The gallery is pleased that the court has dismissed Fabrizio Moretti’s frivolous fraud claims and has dismissed the case entirely against David Zwirner. We are confident that the court will reject the remaining claims once the evidence comes out. Moreover, the artwork is completed and the gallery and Jeff Koons remain ready to deliver to Mr Moretti exactly the work that he purchased.”

The court has ordered the defendants to answer Moretti’s complaint within the next 20 days. The ruling can be found in full by clicking here.

This article was updated on 3 November to include a comment from Zwirner's lawyer, and clarify the editioning of the Gazing Ball sculptures.


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