Opinion
No. 2023-50304 Index No. 657209/2021
04-06-2023
Gonzalve Bich, INDIVIDUALLY AND ON BEHALF OF THE BRUNO BICH TRUST U/A JUNE 25, 1993, THE BRUNO BICH TRUST U/A JUNE 25, 1993, CHARLES BICH, INDIVIDUALLY, ON BEHALF OF THE BRUNO BICH TRUST U/A JUNE 25, 1993, and GUILLAUME BICH, ON BEHALF OF THE BRUNO BICH TRUST U/A JUNE 25, 1993, Plaintiff, v. Veronique Bich, INDIVIDUALLY AND IN HER CAPACITIES AS FORMER TRUSTEE OF THE BVC TRUST, Defendant.
Wiggin & Dana LLP, New York, NY (Steven B. Malech, Michael L. Kenny Jr., and Sean W.Vallancourt of counsel), for plaintiffs. Glenn Agre Bergman & Fuentes LLP, New York, NY (Michael Paul Bowen, Tian Skye Gao, and Jewel K. Tewiah of counsel), and Mosberg Sharma Stambleck Gross LLP, New York, NY (Heidi Harris of counsel), for defendant.
Unpublished Opinion
Wiggin & Dana LLP, New York, NY (Steven B. Malech, Michael L. Kenny Jr., and Sean W.Vallancourt of counsel), for plaintiffs.
Glenn Agre Bergman & Fuentes LLP, New York, NY (Michael Paul Bowen, Tian "Skye" Gao, and Jewel K. Tewiah of counsel), and Mosberg Sharma Stambleck Gross LLP, New York, NY (Heidi Harris of counsel), for defendant.
GERALD LEBOVITS, J.
The current action represents another facet of the multiyear, multi-million-dollar dispute between plaintiffs Gonzalve, Charles, and Guillaume Bich (Bich Children) and their mother, defendant Veronique Bich (Ms. Bich), over money, property, art, and other assets. Plaintiffs allege that at Ms. Bich's direction, they spent approximately $3.5 million for numerous works of art by Diego Giacometti (brother of Alberto). Several years later, bitter family quarreling is alleged to have led Ms. Bich to deny the Bich Children access to these artworks for the better part of a year. When the works were finally returned to them, plaintiffs contend, the works proved to be "inauthentic." (NYSCEF No. 21 at ¶ 63 [amended complaint].)
See e.g. Bich v Bich, 2022 NY Slip Op 50079[U], at *4-10 [Sup Ct, NY County Feb. 9, 2022] [addressing another aspect of this dispute].) Another set of rulings by this court in that Bich v Bich action is being issued concurrently with this decision.
The Bich Children, acting individually and on behalf of several family trusts, brought this action against Ms. Bich, asserting that she is liable to them for harms resulting from the Giacometti artworks being fake-or, perhaps, from Ms. Bich's returning only copies of those artworks to plaintiffs, instead of the real thing.
Ms. Bich now moves to dismiss plaintiffs' action; and to strike the amended complaint for including prejudicial material. The motion to dismiss is granted; the motion to dismiss is denied as academic.
BACKGROUND
This action primarily concerns numerous works of sculpture and furniture that plaintiffs purchased, allegedly at Ms. Bich's advice and direction, in the belief that they were created by Diego Giacommetti. (See NYSCEF No. 21 at ¶¶ 21-28.) The amended complaint identifies 13 such works, purchased between July 2011 and May 2017, and states that those 13 are only some of the works at issue. (See id. at ¶¶ 23, 28.)
The amended complaint also references an unidentified "masterpiece painting" that Ms. Bich allegedly caused the BB Trust to buy without realizing that the painting had been stolen. (See NYSCEF No. 21 at ¶¶ 68, 100, 121, 132.)
The amended complaint alleges that, on February 2022 Euro/Dollar exchange rates, the 13 enumerated works were purchased for a total of approximately $3.07 million. (See NYSCEF No. 21 at ¶¶ 23, 28, and 9 n 1.) The amended complaint also alleges that the total spent by plaintiffs on works believed to be created by Giacometti was "more than $3,500,000." (Id. at ¶¶ 5, 12.) Plaintiffs do not identify the other $400,000 or so in purchased artworks, nor when they were purchased.
These artworks were originally displayed in apartments in Paris and New York, where Ms. Bich resided. (Id. at ¶ 30.) The amended complaint alleges that beginning in early 2020, in parallel to the "precipitous[] deteriorat[ion]" of the relationship between Ms. Bich and her late husband Bruno Bich (id. at ¶ 31), Ms. Bich began denying the Bich Children access to the various artworks at issue (or to the apartments in which those works were displayed), and refused for months to return them. (See id. at ¶ 31-37.) In late 2020, Ms. Bich apparently arranged for a contractor to remove and pack the works for their retrieval by plaintiffs. (Id. at 43-44.) Through counsel, she represented that she "has not retained any of the artwork" at issue and that "she is returning the exact pieces that were originally purchased." (Id. at ¶ 57; see also id. at ¶ 58-59.)
After the artworks' return, plaintiffs consigned some of these artworks for sale. (Id. at ¶¶ 61-62.) The consignee commissioned a recognized Giacometti expert to examine those works to determine their authenticity. That expert concluded the works were "inauthentic"-notwithstanding the authenticity certification that had been provided by the dealer who had sold them to plaintiffs. (Id. at 62-63.)
Plaintiffs then brought this action. As amended, the complaint asserts claims sounding in fraud, negligent misrepresentation, conversion, breach of fiduciary duty, and unjust enrichment. Ms. Bich moves under CPLR 3211 (a) (5) and (a) (7) to dismiss plaintiffs' amended complaint in its entirety as barred by the statute of limitations or for failing to state a cause of action. She also moves under CPLR 3024 (b) to strike the entire complaint as a sanction for the inclusion of several allegations that she contends constitute scandalous or prejudicial material. The motion to dismiss is granted; the motion to strike is denied as academic.
DISCUSSION
I. The Branch of Ms. Bich's Motion Seeking Dismissal of the Complaint under CPLR 3211 (a) (5) and (a) (7)
On a motion to dismiss under CPLR 3211 (a) (7), the facts as alleged must be considered as true, and the court must accord a plaintiff the benefit of "every favorable inference." (Leon v. Martinez, 84 N.Y.2d 83, 87 [1994]). Where, as here, the court has considered evidentiary material submitted by the plaintiff, the question is "whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977].)
On a motion to dismiss under CPLR 3211 (a) (5), "a defendant must establish, prima facie, that the time within which to sue has expired." (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1085 [2d Dept 2016] [internal quotation marks omitted].) If the defendant makes out that showing, the plaintiff must then raise a "question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period." (Id. at 1086 [internal quotation marks omitted].)
This court's analysis of Ms. Bich's CPLR 3211 request for dismissal takes into account that plaintiffs rely in their amended complaint on two different, contradictory factual scenarios to support their claims-as they are entitled to do at the pleading stage. (See e.g. The Limited, Inc. v McCrory Corp., 169 A.D.2d 605, 606-607 [1st Dept 1991] [plaintiffs could simultaneously assert in support of their claims that their corporate predecessor both was, and was not, party to a contract]; Collins v Caldor of Kingston, Inc., 73 A.D.2d 708, 709 [3d Dept 1979] [defendant merchant could deny in its answer plaintiff's allegation that a pellet gun was unsafe and of unmerchantable quality while simultaneously alleging in a third-party complaint that the pellet gun was unsafe/unmerchantable]; cf. Rich v 125 W. 31st St. Assocs., 92 A.D.3d 433, 434-435 [1st Dept 2012] [explaining that a party may "plead inconsistent theories of recovery," but "must elect among inconsistent positions upon seeking expedited disposition"].)
That is, plaintiffs principally allege both that (i) Ms. Bich directed the purchase of "Giacometti" artworks that were inauthentic, and then returned to plaintiffs the same (fake) artworks that had been purchased; and (ii) Ms. Bich directed the purchase of authentic Giacometti artworks, but substituted copies of those works and returned only the copies to plaintiffs. These two scenarios require different analyses of the causes of action that they support, and are therefore treated separately.
As noted above, the amended complaint also alleges briefly that Ms. Bich caused plaintiff BB Trust to buy a stolen painting. That allegation is discussed in Section I.C, infra.
A. Factual Scenario 1: The Giacometti Artworks were Fake When Purchased
Of the seven causes of action asserted by plaintiffs, only three rely on the allegation that the artworks purchased by plaintiffs were fake: the third cause of action, for negligent misrepresentation; the fourth cause of action, for fraudulent concealment; and the fifth cause of action, for breach of fiduciary duty. Those three claims are discussed in this section; the other four are discussed in Section I.B, infra. The discussion in this section of the third, fourth, and fifth causes of action is in turn subdivided into four possible theories under which Ms. Bich could be held liable on these causes of action, in light of the allegations in the amended complaint.
In moving to dismiss these causes of action, Ms. Bich treats plaintiffs as having asserted claims based both on statements she allegedly made when plaintiffs acquired the various artworks at issue and on her alleged statements and conduct in 2020 and 2021. (See NYSCEF No. 31 at 8-9, 12, 13-14.) Plaintiffs, on the other hand, assert that Ms. Bich is "blatantly misconstru[ing] Plaintiffs' allegations by inventing strawman claims" related to alleged time-of- acquisition statements. (NYSCEF No. 35 at 6.) Plaintiffs contend that those statements "ha[ve] nothing to do with Plaintiffs' allegations." (Id.) Rather, the proper focus of the inquiry on this motion assertedly should be "the period in 2020 and 2021" in which Ms. Bich allegedly "lied to Plaintiffs regarding the authenticity of the Giacometti pieces." (Id.)
This court's understanding of the claims and allegations in the complaint is more consistent with Ms. Bich's reading of the complaint than that offered now by plaintiffs. That said, this court could opt to treat plaintiffs' representations on this motion as limiting the scope of their complaint (by effectively disavowing any causes of action based on pre-2020 statements/conduct). The court declines to take that course. Instead, in the interests of clarity and completeness, the court addresses each possible theory of liability presented by the allegations and causes of action in plaintiffs' amended complaint, as this court understands them.
Indeed, if plaintiffs' claims are not based on time-of-purchase representations, it is unclear why plaintiffs would say that they are "bring[ing] this action to recover the more than $3,500,00.00 they were misled into spending on the Fake Giacometti Pieces." (NYSCEF No. 21 at ¶ 12 [emphasis added].)
Theory of Liability 1. One can construe the complaint to allege that Ms. Bich acted wrongly by recommending that plaintiffs purchase artworks that Ms. Bich should have realized were not genuine. On this theory, Ms. Bich returned to plaintiffs in 2020 the same fake pieces she had previously told them to purchase. A claim resting on this theory would sound in negligent misrepresentation and breach of fiduciary duty. Ms. Bich argues that such a claim would be time-barred. This court agrees.
Plaintiffs' fraudulent-concealment claim also contends that Ms. Bich should have known that the works were worthless copies, and therefore acted wrongly in failing to disclose that fact. (See NYSCEF No. 21 at ¶ 103.) But with respect to alleged misrepresentations or material omissions made at or before purchase, that branch of plaintiffs' fraudulent concealment claim in substance duplicates their negligent misrepresentation claim, and is subject to dismissal on that basis.
The theory underlying this claim would be, in essence, different forms of negligent wrongdoing, for which the remedy would be damages suffered as a result of the alleged negligence. (See NYSCEF No. 21 at 4 ¶ 12, 24.) Negligent-misrepresentation claims, and fiduciary-duty claims that (i) seek primarily money damages and (ii) are not grounded in fraud, are both subject to three-year limitations periods with no discovery rule. (See Colon v Banco Popular N. Am., 59 A.D.3d 300, 301 [1st Dept 2009] [three-year negligent-misrepresentation limitations period]; Kaufman v Cohen, 307 A.D.2d 113, 118 [1st Dept 2003] [three-year limitations period for breach-of-fiduciary-duty claims seeking primarily money damages]; Kaszirer v Kaszirer, 286 A.D.2d 598, 598-599 [1st Dept 2001] [three-year limitations period for breach-of-fiduciary-duty claim that does not allege fraud]; Powers Mercantile Corp. v Feinberg, 109 A.D.2d 117, 119-120 [1st Dept 1985] [discovery rule inapplicable to claims not reliant on allegations of fraud].)
These kinds of claims are thus governed by a different limitations period from fraud claims, which must be brought either six years from accrual or two years from when the fraud was or reasonably could have been discovered. (See CPLR 213 [8].)
Plaintiffs' fiduciary-duty claim accrues when the wrong constituting the breach occurred- i.e., when Ms. Bich is alleged to have negligently recommended to plaintiffs that they purchase the artworks at issue. (See Central Gen. Hosp. v Bramex Ltd., 174 A.D.2d 556, 556-557 [2d Dept 1991] [holding that breach-of-fiduciary-duty claims "accrued... at the time of the defendants' alleged breach rather than... when... plaintiffs consequently began to incur pecuniary losses"].) Similarly, the negligent-misrepresentation claim accrued "on the date of the alleged misrepresentation which is relied upon by the plaintiff." (Fandy Corp. v Chen, 262 A.D.2d 352, 353 [2d Dept 1999].) Ms. Bich contends-and plaintiffs do not dispute-that all the art at issue was acquired before December 2018, outside the statute of limitations. (NYSCEF No. 31 at 18.)
To the extent that plaintiffs' negligent-misrepresentation and fiduciary-duty claims are based on Ms. Bich's alleged statements and conduct made before the artworks at issue were purchased, those claims are subject to dismissal as untimely.
Theory of Liability 2. Plaintiffs' amended complaint passingly suggests, in support of their fiduciary-duty claim, that Ms. Bich might have "kn[own] all along the works peddled by [the art dealer] were fakes," yet "recommended them to Plaintiffs" anyway. (NYSCEF No. 21 at ¶ 76; see also id. at ¶ 120 [same].)
These allegations appear to sound in fraudulent concealment and in breach of fiduciary duty. Because these causes of action would rest ultimately on a theory of fraud-by-material-omission, they would be subject to a six-year statute of limitations, rather than a three-year limitations period. (See Kaufman, 307 A.D.3d at 119-120, 121.) The claims on this theory would therefore be timely as to any artwork purchased on or after December 29, 2015-including at least four works enumerated in the amended complaint. (See NYSCEF No. 21 at 7-8.)
The theory of fraud underlying these causes of action is wholly unsupported, however. The amended complaint itself alleges, at most, a" possibility that [Ms. Bich] knew all along" that the works were fraudulent copies. (Id. at ¶ 76 [emphasis added.].) The only other allegation based on this theory is a conclusory statement in the alternative, in the causes-of-action section of the amended complaint, that Ms. Bich breached her asserted fiduciary duty by "recommending that the Bich Children purchase fake art while knowing and failing to disclose that the art was fake." (Id. at ¶ 120.) These allegations, without more, are insufficient to establish that plaintiffs have a cause of action. (See Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d 785, 787-788 [2d Dept 2021] [granting motion to dismiss where complaint's allegations "are devoid of a factual basis and are vague and conclusory"].)
Theory of Liability 3. Plaintiffs also allege that Ms. Bich "knew or should have known the artwork[s] she had Plaintiffs purchase are not authentic Giacometti pieces," but that notwithstanding this knowledge, "[a]t no point" in 2020 or 2021 "did [Ms. Bich] ever inform Plaintiffs the works are fake" in 2020 or 2021. (NYSCEF No. 21 at ¶¶ 103-107.) This claim, sounding in fraudulent concealment, would be timely. But the amended complaint's allegations are insufficient to support a theory that Ms. Bich learned at some point before 2020 that the artworks at issue were copies. (See Houbigant, Inc. v Deloitte & Touche LLP, 303 A.D.2d 92, 97 [1st Dept 2003] [holding that CPLR 3016 requires a "particularized factual assertion which supports the inference of scienter"].)
Plaintiffs suggest that they can show scienter based on their allegations about Ms. Bich's refusal to return the artworks during her increasingly acrimonious negotiation (through counsel) with the late Mr. Bich and the Bich Children over the course of 2020, and also her refusal to execute plaintiffs' counsel's proffered certifications of authenticity. (See NYSCEF No. 35 at 16.) This court is unpersuaded. But even if plaintiffs could establish scienter through these allegations, Ms. Bich's alleged conduct should itself have put plaintiffs on their guard and "cause[d] them to question [Ms. Bich's] representations"-thereby foreclosing reasonable reliance on those representations. (See Frame v Maynard, 83 A.D.3d 599, 603 [1st Dept 2011]; Shea v Hambros PLC, 244 A.D.2d 39, 47 [1st Dept 1998] [holding that plaintiffs' "allegation of trust and reliance is... fatally undermined" by plaintiffs' own statements indicating that the agreements at issue "were reached in a climate of discord and dissension among parties with legal counsel"].)
Theory of Liability 4. Plaintiffs further allege that Ms. Bich acted wrongfully by "represent[ing] that she returned to Plaintiffs the exact works of art that [they] originally purchased, which were certified as authentic," and yet proved to be inauthentic. (NYSCEF No. 21 at ¶¶ 54, 57, 63, 94-95, 105.) These allegations sound in negligent misrepresentation and fraudulent concealment. The claims, accruing at most a year before the filing of the action, are timely. Nevertheless, plaintiffs' allegations fail to establish a cause of action for pleading purposes.
To begin with, plaintiffs have not alleged that Ms. Bich falsely represented in 2020 or 2021 that the purchased pieces were authentic when they were not. Rather, according to plaintiffs, Ms. Bich, through counsel, disclaimed an ability to definitively authenticate the artworks-that she could only "represent that it's the same piece that it was when they got it." (Id. at ¶ 54; see also NYSCEF No. 10 at 2 [reproducing counsel's email].) Similarly, in November 2020, Ms. Bich, through counsel, "certified that she 'has not retained any of the artwork [the Bich Children] claim as theirs and she is returning the exact pieces that were originally purchased.'" (NYSCEF No. 21 at ¶ 57, quoting NYSCEF No. 6 at 2 [alteration in original]; see also id. at ¶ 59.) Under the works-fake-when-purchased scenario, these representations are accurate, not false. The certificates of authenticity referenced in ¶¶ 94 and 105 of the amended complaint were not provided by Ms. Bich when she returned the pieces, but rather by the seller of the artworks at the time of sale. (See id. at ¶¶ 3, 49, 63.) Those certificates cannot support a fraud/negligent misrepresentation claim against Ms. Bich.
Additionally, as discussed above, plaintiffs have not shown that any reliance by them on Ms. Bich's representations-made in communications between the parties' counsel-was reasonable under the circumstances. Absent allegations of reasonable reliance, the complaint fails to show that plaintiffs have a cause of action on these claims. (See Gristede's Foods, Inc. v Madison Capital Holdings LLC, 174 A.D.3d 455, 456 [1st Dept 2019].)
Further, plaintiffs have not alleged how they were damaged by their alleged reliance on the representations at issue. The amended complaint identifies only two changes in position: (i) after the return of the artworks in November and December 2020, the parties to a Delaware state-court action about the art discontinued that action (id. at ¶ 45); and (ii) upon receiving the artworks back from Ms. Bich, plaintiffs consigned some of the works for sale, whereupon they were examined by an expert who concluded that they were "inauthentic" (id. at ¶¶ 61-63).
This court does not see-and plaintiffs' amended complaint does not say-how plaintiffs were harmed by discontinuing the Delaware action after they received the artworks back, given that the allegations and relief in that action focused on plaintiffs' entitlement to recover those works. (See NYSCEF No. 3 at 16 [prayer for relief].) And plaintiffs do not allege that dropping that action prejudiced their litigating position in any of the other actions involving them and Ms. Bich.
With respect to the consignment of the art for sale, the amended complaint is silent about what harm, if any, plaintiff suffered as a result of the Giacometti expert's conclusion that the works he examined were inauthentic. Plaintiffs' failure "to allege with specificity an inducement which caused a change in [their] position and injury which was sustained as a consequence" forecloses their negligent-misrepresentation and fraudulent-concealment claims against Ms. Bich based on her 2020/2021 representations-at least in the scenario in which the artworks were fake all along. (See Mariani v Dyer, 193 A.D.2d 456, 457 [1st Dept 1993] [emphasis added; internal quotation marks omitted].)
To the extent plaintiffs are arguing that Ms. Bich's 2020/2021 statements about the artwork otherwise deprived them "of the opportunity to enjoy, appraise, and sell the pieces they purchased and have owned for years" (NYSCEF No. 35 at 18, quoting NYSCEF No. 21 at ¶ 66), the amended complaint does not explain why this deprivation resulted from Ms. Bich's statements, as opposed to plaintiffs' evaluator's alleged conclusion that the pieces were inauthentic.
Plaintiffs also point to their request for "damages relating to 'diminution in value associated with the timing of the return of the authentic pieces.'" (NYSCEF No. 35 at 18, quoting NYSCEF No. 21 at ¶ 12.) That claimed harm would not support causes of action grounded in the assumption that the artworks were fake when purchased.
In opposing the motion to dismiss, plaintiffs quote the Court of Appeals's decision in Pludeman v Northern Leasing Systems, Inc. (10 N.Y.3d 486, 392 [2008]) to emphasize that CPLR 3016 (b) does not require "unassailable proof of fraud" at the pleading stage. (NYSCEF No. 35 at 18.) But this language from Pludeman concerns the extent of a plaintiff's obligation under CPLR 3016 (b) to "sufficiently detail the allegedly fraudulent conduct"-not the plaintiff's resulting injuries. (10 N.Y.3d at 492.) Regardless, that there are limits to the degree of detail required in a complaint's allegations of injury does not excuse a plaintiff from the need to allege injury in the first place. Plaintiffs have not done so here.
B. Factual Scenario 2: Ms. Bich Returned Copies of Giacometti Artworks that were Authentic When Purchased
As discussed above, the amended complaint's third through fifth causes of action rely on the premise that the artworks at issue were fraudulent copies when purchased. The first and second causes of action (for actual and constructive fraud, respectively), the sixth cause of action (for conversion), and the seventh cause of action (for unjust enrichment) are based on the more sensationalist allegation that Ms. Bich returned "worthless fakes" to plaintiffs in 2020, "in contrast to the certifiably authentic pieces purchased" from the seller. (NYSCEF No. 21 at ¶ 126.)
This claim is timely, and the alleged damages are obvious. But the amended complaint does not provide factual support for this claim.
Plaintiffs do not allege facts that might show that the artworks they received back from Ms. Bich in 2020 were fraudulent reproductions made at Ms. Bich's own direction. The amended complaint does not, for example, describe an expert's examination of details of those works that would support a recent-copies theory, allege reasons to believe that Ms. Bich had hired artisans to make copies, quote statements by individuals who had seen the original works still in Ms. Bich's possession, or otherwise include information about the returned pieces that would support plaintiffs' theory that those pieces were fresh copies of authentic originals.
Plaintiffs also do not allege facts supporting a conclusion that the artworks were authentic when purchased. Plaintiffs do not, for example, contend that expert authenticators or appraisers had been retained to evaluate the works before they were purchased, or between the time of purchase and 2020, and concluded that the works were genuine. Nor do plaintiffs allege that they investigated the provenances claimed for the artworks at issue and found that those provenances hold up (thereby suggesting that the purchased artworks were genuine). To the contrary, the one provenance-related fact given by plaintiffs is an allegation that the art dealer who sold plaintiffs the asserted Giacometti pieces had given a provenance for one of those pieces that was readily found to be inaccurate. (See NYSCEF No. 21 at ¶ 75.)
Instead of relying on allegations about the artworks themselves, plaintiffs rely only on unsustainably thin inferences about the circumstances of the artworks' return in 2020. (See NYSCEF No. 35 at 20, citing NYSCEF No. 21 at ¶¶ 30-45.) The cited allegations of the amended complaint boil down to two propositions. First, Ms. Bich maintained possession of the artworks, and refused to permit the Bich Children to see them, during a period in 2020 in which she was hotly contesting ownership and control of the pieces (and the apartments in which they were displayed) with her late husband and the Bich Children themselves-and in which a pandemic was wreaking worldwide havoc. Second, Ms. Bich ultimately organized and carried out a unilateral return of the pieces, without involving the Bich Children or permitting them access to Ms. Bich's residences.
To the extent plaintiffs also rely on their allegation that "they consistently asked [Ms. Bich] to certify the authenticity of the Giacometti Pieces and she consistently refused to give a straight answer" (NYSCEF No. 35 at 15, citing NYSCEF No. 21 at ¶¶ 49-60), plaintiffs overlook that Ms. Bich expressly certified (through counsel) that she was returning to plaintiffs the same pieces that they had originally purchased. (See NYSCEF No. 21 at ¶¶ 54, 57, 59.)
Neither the amended complaint nor plaintiffs' opposition to the motion to dismiss explain, however, why Ms. Bich's restricting access to artworks while they were the subject of litigation would suggest she was engaged in making copies of those works to pawn off on her children. Plaintiffs describe the process by which Ms. Bich returned the artworks to plaintiffs as "secretive." (Id. at 20.) But they do not provide reasons to believe that Ms. Bich's denying the Bich Children access to the works during the return process would have been necessary, or even helpful, to carrying out her putative scheme to return copies of works that were authentic when purchased. One would think it would have been just as easy for Ms. Bich-had she, in fact, planned to return only copies-to provide the Bich Children access to the copies for packing purposes to allay their suspicions, while hiding away the originals.
This assessment is, of course speculative. But that is the point. The amended complaint does not provide anything beyond speculation to support plaintiffs' claim that Ms. Bich defrauded them by returning only copies of genuine originals. Speculation, without more, is not enough to support a cause of action. (See Guidance Endodontics, LLC v Olshan Grundman, Frome Rosensweig & Wolosky, LLP, 157 A.D.3d 508, 509 [1st Dept 2018]; Sonkin v Sonkin, 157 A.D.3d 414, 415 [1st Dept 2018]; accord O'Neill v Wilder, 204 A.D.3d 823, 824 [2d Dept 2022].)
C. The Purchase of a "Masterpiece Painting" that Had Allegedly Been Stolen
Plaintiffs' negligent-misrepresentation and fiduciary-duty claims (the third and fifth causes of action) also include an allegation that Ms. Bich acted wrongly in causing plaintiff BB Trust to purchase an unnamed "masterpiece painting" that had previously been stolen from its rightful owner. (See NYSCEF No. 21 at ¶¶ 100, 121.) Plaintiffs do not have a cause of action relating to this painting, either.
Plaintiffs also include a reference to the "masterpiece painting" in their unjust-enrichment claim (the seventh cause of action). But it is entirely unclear-and plaintiffs do not clarify-how Ms. Bich would have been unjustly enriched by causing the purchase of a painting that was not properly for sale. This omission is particularly telling, given that the remainder of the unjust-enrichment allegations relate to plaintiffs' theory that Ms. Bich had returned copies of the Giacometti artworks while retaining the originals. Plaintiffs do not suggest that Ms. Bich made or retained a copy of the masterpiece painting at issue.
The body of the amended complaint does not provide any information about the painting, when it was purchased, the circumstances of the purchase, how Ms. Bich caused that purchase, or why Ms. Bich could or should have realized that the painting had previously been stolen. Absent any of those details, plaintiffs have not alleged a basis to conclude that Ms. Bich acted negligently or otherwise breached any fiduciary duty that she might owe.
For that matter, the only basis alleged for the existence of a fiduciary duty running from Ms. Bich to the BB Trust with respect to this painting is "her superior knowledge regarding the authenticity of the art referenced herein and her superior expertise in fine art." (Id. at ¶ 116.) But superior knowledge and expertise, standing alone, does not give rise to a fiduciary duty. (Thome v Alexander & Louisa Calder Found., 70 A.D.3d 88, 108-109 [1st Dept 2009], citing Granat v Center Art Galleries-Hawaii, Inc., 1993 WL 403977, at *6 [SD NY Oct. 6, 1993]; see also Batas v Prudential Ins. Co. of Am., 281 A.D.2d 260, 264-265 [1st Dept 2001], citing Gaidon v. Guardian Life Ins. Co., 255 A.D.2d 101, 102 [1st Dept 1998], mod on other grounds 94 N.Y.2d 330 [1999].) Nor does the amended complaint allege that the BB Trust otherwise lacked access to information it would have needed to evaluate Ms. Bich's recommendation about the painting (whatever that recommendation consisted of). In these circumstances, plaintiffs have not established that Ms. Bich owed the BB Trust a fiduciary duty about this painting in the first place.
II. The Branch of Ms. Bich's Motion to Strike the Amended Complaint under CPLR 3024
Ms. Bich also moves to strike the amended complaint in its entirety for containing unnecessary "scandalous or prejudicial matter." (CPLR 3024 [b].) This branch of Ms. Bich's motion is denied in part and otherwise denied as academic.
The court does not mean, by its denial of the request to strike, to express approval of all the allegations in the amended complaint. This court agrees with Ms. Bich that parts of the complaint such as the assertion that Ms. Bich's alleged errors with respect to the Giacometti pieces are only the "tip of the iceberg" (NYSCEF No. 21 at ¶ 65), gratuitously assert wrongs that have nothing to do with the parties or claims to this action. And some of the allegations in the complaint appear to serve merely as mocking jibes, rather than factual assertions supporting the claimed causes of action and requests for relief. (See e.g. id. at ¶¶ 60, 72-73.)
But Ms. Bich provides no authority for the proposition that the presence of isolated instances of improper material in a lengthy complaint should be grounds to strike the complaint in its entirety, as she requests. (See NYSCEF No. 31 at 20.) The decision in Ciccolo v Chicago Research & Trading Group, Ltd. (161 A.D.2d 364, 365 [1st Dept 1990]) cited in Ms. Bich's reply papers (see NYSCEF No. 37 at 10), affirmed trial-court orders striking particular paragraphs within a complaint and within an amended complaint-not striking those pleadings as a whole. Given that this court is granting dismissal of the amended complaint in its entirety, the court concludes that Ms. Bich's motion is academic as to the particular allegations discussed above.
Accordingly, it is
ORDERED that the branch of Ms. Bich's motion seeking dismissal of the amended complaint under CPLR 3211 (a) (5) and (a) (7) is granted, and the action is dismissed, with costs and disbursements to be taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the branch of Ms. Bich's motion seeking to strike the amended complaint under CPLR 3024 (b) is denied in part and otherwise denied as academic; and it is further
ORDERED that Ms. Bich serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.