NEW YORK—A breach-of-contract lawsuit brought by Manhattan art dealer Will Ameringer against Florida dealer Arij Gasiunasen in March, has been settled.
Ameringer, director of Ameringer & Yohe Fine Art, claimed that Gasiunasen had backed out of his agreement to buy a Helen Frankenthaler painting. Gasiunasen will now buy the painting at the $500,000 price he initially agreed to in February, reports John Koegel, the attorney representing Ameringer.
The $500,000 suit, filed in the District Court of the Southern District of New York, alleged that in February, Gasiunasen, owner of the Gasiunasen Gallery, Palm Beach, had visited Ameringer’s booth at the Art Dealers Association of America’s Art Show in Manhattan, where he saw and negotiated to buy the 1974 Frankenthaler painting Barbuda.
According to the claim, the work was listed at $650,000, but Ameringer agreed to discount it to $500,000 after Gasiunasen stated that he intended to acquire the work for his “‘private inventory’”— which Ameringer [and his gallery director Miles McEnery] believed to mean he wanted it for his private collection, not for immediate resale.”
The gentleman’s agreement, brokered verbally and sealed with a handshake, was concluded on the first day of the fair, with Gasiunasen’s promise to remit the full amount by the last day, the suit stated. On Feb. 22, it noted, McEnery faxed an invoice to Gasiunasen and sent, via Federal Express, a written invoice to the Florida gallery, which was received the next morning.
The lawsuit alleged that Gasiunasen had not paid the agreed amount or any portion of it; nor had he communicated his decision to back out of the purchase. However, Ameringer, considering the deal firm, “withdrew the work from sale” for the duration of the fair, “and all viewers of the painting thereafter were on notice that the work was no longer for sale,” the complaint said.
That invoice, although never signed or initialed by Gasiunasen, represented the contract that was breached, Koegel contended. “It doesn’t have to be signed to be binding; it is a confirmation of an oral contract—an offer and an acceptance—that is binding,” Koegel told ARTnewsletter.
He said there are standard methods in the art trade to make an agreement conditional—such as placing a “hold” on an artwork or putting it “on reserve”—but maintains that the arrangement between Ameringer and Gasiunasen contained none of these caveats.
Koegel pointed out that, under the law, a buyer assumes the obligation to complete a purchase if that person “says he will buy it and confirms that,” adding that the confirmation is the invoice. “The law allows you 10 days to object to the invoice.” Gasiunasen stated no objection to the invoice and only ignored it, Koegel said.
Differing Points of View
Gasiunasen, contacted at his gallery, contested the claim that he had failed to tell Ameringer the sale was off. “I made the offer on Thursday, the 22nd [of February], on behalf of a client, but there were contingencies,” he told ARTnewsletter. “The piece didn’t meet the contingencies, so I called Miles [McEnery] on Saturday [Feb. 24] to cancel the sale.”
Gasiunasen added that, during the call, he had apologized for the inconvenience and told McEnery to “put the painting back on the market.” The suit made no reference to any such phone call, which Gasiunasen has described as “irritating.”
But McEnery recalls events differently. “He never called me,” McEnery told ARTnewsletter.
Under the law, New York attorney Ralph Lerner, a leading art expert and author of Art Law, told ARTnewsletter, “there is no cooling-off period in which you can back out of an agreement, if there is an agreement.”
The contingencies appeared to involve the condition of the painting, which Koegel claimed was good at the time of the fair and remained good. “The collector wanted to see the piece, which is fine with us,” Koegel told ARTnewsletter. “He could only complain if the piece were not in the condition that it was at the fair.”