The New York Law Journal today has a decision ($) from the Southern District of New York denying a motion for partial summary judgment by the estate of artist Al Loving in a lawsuit against his longtime dealer, George N'Namdi.
The estate sought three things. First, it asked for an order directing the gallery to account for all works delivered to it by Loving. The Court pointed out that to get an accounting you have to first show a breach of fiduciary duty -- and since pretrial discovery hadn't even begun, no such showing had been made here. (The Court did note that the estate could get essentially the same thing through the discovery process itself; the process is really the remedy.)
Next, the estate asked for an order directing the gallery to return all of Loving's unsold work. The Court again found the request premature: the dealer claimed to have already returned everything or agreed to make it available for pick-up at the gallery. Given that discovery hadn't yet started, there were "no facts from which to conclude that the defendant is withholding any of Loving's works." (The estate argued that the order was necessary "because of the defendant's past recalcitrance," but the Court felt that begged the question: the past recalcitrance had to be established during discovery, not simply asserted.)
Last, the estate asked for an order compelling the gallery to pay fifty percent of any sales of Loving's artwork not already paid. Here again, since the pertinent facts (including precisely how much the estate was owed) had not yet been developed in discovery, the request was denied as premature.
It's not clear why exactly the estate bothered moving for summary judgment at this stage. The gist of the Court's decision seems to be, "You can get everything you're asking for through discovery -- why are you bothering me?"
Loving, who died last year of lung cancer, was the first black artist to receive a solo show at the Whitney (1969). You can read a brief obituary here (scroll down). He has a stained-glass piece in the Broadway/East New York subway station in Brooklyn, which you can see here.
