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Simon v. Taub

June 24, 2010


On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-122-06.

Per curiam.


Submitted April 28, 2010

Judges Graves and Sabatino.

This appeal concerns a protracted dispute between two former brothers-in-law over the ownership and control of a framed oil painting. The full title of the painting, which was created by the British portrait artist Benjamin Marshall (1768- 1835), is "Bembo, Favourite Hunter of Charles Shuttlesworth, Esquire." The painting is otherwise identified at times in the record as "A Horse Named Bembo," or simply as "Bembo." The painting depicts a black horse standing in profile, in the midst of a landscape of open country and beneath a threatening gray-green sky.

The painting was purchased as an investment jointly by plaintiff, Jeffrey M. Simon, and defendant, Warren J. Taub, in 1984 for $16,800. At the time of the purchase, plaintiff was married to defendant's sister. Plaintiff allowed defendant to retain possession of the painting throughout the period of their joint ownership and defendant claims to have spent approximately $4000 over that same period to restore it.

Eventually the brothers-in-law had a falling out. Consequently, in March 2006, plaintiff filed a verified complaint in the Chancery Division, seeking to force a sale of the painting and obtain his one-half financial interest from the sale proceeds. The case was thereafter transferred to the Law Division and plaintiff amended his complaint to seek monetary damages in the amount of one-half the "present value of the painting." Defendant answered, admitting his continued possession of the painting but otherwise denying all other aspects of an investment partnership with plaintiff.

In January 2007 the painting was examined, photographed and valued by a professional art appraiser, Mary Rabbitt. The examination took place at defendant's residence. In her appraisal report, dated January 29, 2007, Rabbitt opined that the painting's fair market value at that time was $46,000.

Rabbitt noted that the subject artwork is one of 281 catalogued paintings by Marshall. According to Rabbitt, Marshall's works between 1798 and 1818 are ranked "with that of the great artists of animal painting and sporting art of the English School." Characterizing the Bembo painting as "a straightforward example of a Ben Marshall painting with a single subject horse," Rabbitt indicated that, by comparison, some of the artist's "more complex" paintings "have sold at auction in the high five figures and into the six figures over the last ten years[.]" Her report listed six comparable sales of Marshall paintings by various auction houses, including Sotheby's and Christie's, for sale prices as high as $58,674.

Rabbitt's appraisal described the condition of the Bembo painting, at the time she inspected it in January 2007, as "very good," with "some evidence of craquelure*fn1 as [is] consistent with [the] age of [the] painting."

After a non-binding arbitration failed to resolve the dispute, both parties moved for summary judgment.

On September 20, 2007, the trial court granted summary judgment to plaintiff, declaring that the parties had an equal ownership interest in the painting. The order provided that defendant, who was then in possession of the painting, either could: (1) list the painting for sale within thirty days with a reputable auction house, and, if the painting were sold at such an auction, evenly divide the proceeds with plaintiff, again with a $4000 credit to defendant for the prior restoration costs; or, alternatively, (2) pay plaintiff one-half of its appraisal value (a net sum of $21,000, factoring in defendant's $4000 prior outlay for restoration costs) and keep the painting.

For reasons that are not divulged to us, defense counsel concedes that he did not tell his client promptly about the September 20, 2007 order. Consequently, defendant failed to list the painting with an auction house by the court's thirty-day deadline.

After the summary judgment in plaintiff's favor was recorded as a lien against defendant, plaintiff obtained a writ of execution for seizure of the painting in February 2008. Thereafter employees of the Hunterdon County Sheriff's Office seized the painting from defendant's residence. At an ensuing Sheriff's sale on April 10, 2008, plaintiff was the highest bidder, obtaining the painting for a below-market sum of $2100. Plaintiff then took possession of the painting, and took it immediately to his home in Connecticut. According to plaintiff's subsequent certification, the painting was hung ...

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