

Heather James, LLC v Day & Meyer, Murray & Young Corp. (2016 NY Slip Op 06110)





Heather James, LLC v Day & Meyer, Murray & Young Corp.


2016 NY Slip Op 06110


Decided on September 22, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 22, 2016

Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels, Kahn, JJ.


1255 651226/14

[*1]Heather James, LLC, et al., Plaintiffs-Respondents,
vDay & Meyer, Murray & Young Corp., et al., Defendant-Appellant.


George W. Wright & Associates, LLC, New York (George W. Wright of counsel), for appellant.
William M. Pinzler, New York, for respondents.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered September 21, 2015, which, to the extent appealed from, denied defendant's motion for summary judgment limiting its liability to the damages specified in the parties' contracts, unanimously affirmed, without costs.
Plaintiff Heather James Jackson, LLC, the owner of an art gallery in Wyoming, facilitated for a client the purchase of 10 original framed Marilyn Monroe silk-screen prints created by Andy Warhol. Included in the collection, and making it unique, was the box that Warhol himself had selected and labeled to sell the prints in. Defendant, which specializes in storing and shipping rare fine art, was to receive the collection from Sotheby's and ship it to the Wyoming gallery. In an email notifying defendant that the collection would be arriving the next day, an employee of plaintiff advised that the prints were to be shipped to Wyoming, "along with the original box the prints came in." However, the prints arrived in Wyoming without the original box.
Contrary to the motion court's conclusion that gross negligence on defendant's part would deprive defendant of the benefit of the contractual limitation on its liability, the only circumstance that would render the contractual limitation inapplicable in this case is defendant's conversion of the original box (see  former UCC 7-204[2], now 7-204[b]; I.C.C. Metals v Municipal Warehouse Co. , 50 NY2d 657 [1980]). Although defendant proffered a non-conversion explanation for its failure to return the box to plaintiff, the evidence it submitted fails to demonstrate the truth of that explanation for summary judgment purposes (see I.C.C. Metals , 50 NY2d 657).
We have considered defendant's remaining arguments and find them unavailing.
The Decision and Order of this Court entered herein on June 16, 2016 is hereby recalled and vacated (see  M-3393 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 22, 2016
CLERK


