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Dealer Gary Tatintsian takes Lew Nussberg to court over fake Malevich drawings after scientific analysis

The case has proved to be colourful, with Tatintsian counter suing Nussberg for at least $62m

New York

A colourful lawsuit over breach of contract involving an unnamed Russian businessmen and art paid for with cars and cash has taken a new turn. What began as a dispute over payment and ownership has now become a battle over the authenticity of works by a trio of Russian suprematists: Malevich, Suetin and Chashnik.

The Russian art dealer Gary Tatintsian, who has galleries in New York and Moscow, is claiming that Lew Nussberg, an artist, art historian and collector born in Russia and now living in Connecticut, lied about the provenance of works of art and “created and/or assisted in the creation” of forgeries. He is claiming compensatory damages of no less than $37.3m, punitive damages of no less than $25m, as well as other costs as the court sees fit.

The men first met in 2005 and subsequently struck a series of deals in which Nussberg sold hundreds of works to Tatintsian. The first deal in April 2006 concerned the $3m sale of 95 works, payable in three instalments. The second was for the consignment of 11 Malevich drawings for $752,000 in 2007. The third was for the $2.6m sale of a further 97 works in June 2009.

Nussberg claims that the works came directly from the heirs of the artists, notably from the archive of Anna Aleksandrovna Leporskaya, Suetin’s partner. This connection with the artists and Nussberg’s “own prominence as an artist in Moscow in the 1960s” added weight to his story, but this “turned out to be false” according to the latest court papers filed in March by Tatintsian.

He claims that new evidence has come to light following the scientific analysis of works by several firms including the US companies James Martin and Paul Messier. The latter found that one of the works contained optical brightening agents that were not invented during Malevich’s lifetime and “therefore must be a forgery”. One of the works by Chashnik apparently contains acrylic paint not invented until after the artist’s death.

Separately, the Serafot Foundation employed the art historian Aleksandra Shatskikh to authenticate and catalogue the works in its collection. She came to the conclusion in September 2011 that the “Malevich drawings originating with Nussberg could not be considered authentic”.

In December 2011, the Danish scholar Troels Anderson published K.S. Malevich: the Leporskaya Archive which excluded “the vast majority” of the purported, surviving Malevich drawings. The publication also identifies several drawings that Tatintsian alleges “appear to have been added to or altered… all of those works entered the market through Nussberg.”

In addition, Tatintsian says Leporskaya’s adoptive daughter Nina Suetina “has come forward with evidence that Nussberg did not obtain the Malevich works… from Leporskaya”.

“As Tatintsian alleges, recent research [by] leading scholars, and other evidence, convincingly shows that many works Nussberg sold to Tatintsian, saying that they came from Leporskaya’s collection, in fact did not come from the collection. This circumstance ends Nussberg’s claims about the provenance of these works and casts serious doubt on their authenticity,” says Gregory Clarick, of Clarick Gueron Reisbaum LLP, which is representing Tatintsian.

“Mr Nussberg stands by the allegations in his amended complaint [see box below]… He denies the allegations in the counterclaims,” says Davida Scher, of Meier Franzino & Scher, LLP which represents Nussberg.

Three years of twists and turns…

The row dates back to December 2009 when Lew Nussberg filed a suit in New York Supreme Court against Tatintsian, seeking more than $7m in damages for an alleged breach of contract and conspiracy to coerce.

He alleges that Tatintsian failed to pay $800,000 on the 2006 deal, and owed $1m in interest. He also claims that he was coerced into the 2009 deal after Tatintsian threatened to send “sensitive materials… to the Internal Revenue Service”.

Tatintsian counters that he paid more than $800,000 in “cash and valuable consideration”, including BMW cars and three works by Damien Hirst worth approximately $54,000, to Nussberg who had “specifically instructed payments in cash and in kind”.

In March 2010, the courts ruled in Nussberg’s favour by granting a temporary injunction ordering Tatintsian to return 108 works to Nussberg. Tatintsian maintained that the works were with a Russian businessman and could not be brought to New York. He refused to reveal the client’s name, testifying that he feared for his life. Tatintsian instead offered to place $2.6m in an escrow account (he has paid half of the amount and there is a $1.3m restraint on his business assets).

Tatintsian has since revealed that he sold the bulk of works in the 2006 contract to Alexander Smuzikov, aside from 12 works which he sold in March 2010 to the Russian collector, Evgeny Zyablov. He sold the 2009 collection to Mikhail Vilkovskiy. Zyablov employed the Moscow firm, Art Consulting, to carry out scientific analysis, which concluded that at least four works were forgeries.

Tatintsian then applied to the court to add two new counterclaims of fraud and breach of contract. The judge disallowed this in July 2011 saying that since the works had left Nussberg’s possession more than four years before, the defendants could not establish a chain of custody to prove these were the same works. The judge also found that Nussberg had argued “persuasively” that it would be impossible for him to defend himself against the charge of forgery as expert witnesses could not be subpoenaed from Russia.

Nonetheless, Tatintsian successfully appealed this decision, and has now filed an amended defence and counterclaim.

Originally appeared in The Art Newspaper as 'Dealer says collector supplied fake Malevich drawings'