FILED: NEW YORK COUNTY CLERK 11/30/2012

NYSCEF DOC. NO. 113

INDEX NO. 651760/2010 RECEIVED NYSCEF: 11/30/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------X Index No. 651 760/201 0 SANDRA CALDER DAVIDSON, MARY CALDER ROWER and SHAWN DAVIDSON, as Executors ofthe Estate of ALEXANDER CALDER, Deceased, Plaintiffs, -againstKATHERINE PERLS, individually, and as Executrix of the Estates of Amelia B. Perls and Klaus G. Perls, THE PERLS FOUNDATION, Jane Doe a/k/a MADAME ANDRE, and LENNART BRABERG, Defendants. AFFIDAVIT IN SUPPORT OF MOTION TO AMEND THE COMPLAINT MOTION SEQUENCE NO. 5

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) ) ss: COUNTY OF NEW YORK ) ALEXANDER S.C. ROWER, being duly sworn deposes and says: 1. I am Alexander Calder's ("AC") grandson and the son of plaintiff STATE OF NEW YORK

executrix Mary Calder Rower. My mother died on June 28, 2011 and I was appointed a successor executor in April, 2012 (Ex. 11). I am also the Chairman and President of The Calder Foundation ("CF") and a trustee of a trust created by AC's last Will and Testament and which holds AC's residuary estate. 2. I am personally familiar with the facts and circumstances herein and

submit this affidavit in support of plaintiffs' motion to amend the complaint (Ex. 1) to add five causes of action (fourth through eighth causes of action) for: breach of contract (Ex. 2 pars. 6169); breach of fiduciary duty (Ex. 2 pars. 70-74); an accounting (Ex. 2 pars. 75-85); trust and/or constructive trust (Ex. 2 pars. 86-90); and unjust enrichment (Ex. 2 pars. 91-93).

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The Proposed First Amended Complaint (Ex. 2)

3.

I have read the proposed First Amended Complaint (Ex. 2), and I concur

with the allegations and statements contained therein. Exhibit 3 is a redline comparing the original Complaint (Ex. 1) with the proposed First Amended Complaint (Ex. 2) demonstrating the additions and deletions in the proposed First Amended Complaint. 4. The original Complaint dated October 14, 2010 (Ex. 1) named Douglas

Mayhew ("DM") and Roberto Caballero ("RC") (collectively, the "Mayhew Defendants") as two of six defendants in this action. On or about April 29, 2011, this action was discontinued with prejudice against former Mayhew Defendants pursuant to a settlement agreement. 5. Pursuant to this Court's Order dated May 5, 2011 (Ex. 4), this Court

ordered, inter alia, that this action against the Mayhew Parties is severed, the case caption shall be amended accordingly to remove the Mayhew Parties names, and the action continues against the remaining defendants (the "Perls Defendants"). In furtherance ofthe Court's Order, the fifth through seventh causes of action against solely the Mayhew Defendants have been deleted in the proposed First Amended Complaint. 6. Additionally, the proposed First Amended Complaint is streamlined as it

consolidates certain causes of action against the Perls Defendants. The proposed First Amended Complaint consolidates the second and eighth causes of action for replevin which is now the second cause of action in the proposed First Amended Complaint, and consolidates the fourth and tenth causes of action for breach of bailment which is now the third cause of action in the proposed First Amended Complaint (Ex. 2). 7. I am advised that leave to amend a complaint should be freely granted on

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such terms as are just and that the law clearly favors amendment when the substantial rights of a party are not prejudiced. A review of the substance ofthe proposed First Amended Complaint and the underlying facts demonstrates that plaintiffs have not alleged any new facts which the defendants are not already aware of. Defendants cannot claim any prejudice or surprise. As explained below, some of the new facts in the proposed First Amended Complaint were not known to plaintiffs until discovery from the Mayhew Defendants and the Perls Defendants in this action.
Background

8.

All of AC's property, including works of art, mobiles, stabiles, paintings

and sculptures, owned by AC at the time of his death, belong to the Estate of AC ("Estate") pursuant to AC's last Will and Testament, to be disposed of as directed in AC's will. AC died in 1976 and the CF was created by AC's family as a private operating foundation more than a decade later in 1987. All of the Correspondence 1 and AC's works of art, AC's property and AC's assets (collectively, "AC Property") belonged to AC prior to his death and since then have belonged to the Estate. 9. In short, this is a case of fraud, breach ofbailment and replevin, where

the defendants Katherine Perls ("KP") individually, and as Executrix ofthe Estates of Amelia "Dolly" B. Perls ("ABP") and Klaus G. Perls ("KGP), The Perls Foundation ("TPF"), Lennart Braberg ("LB") and/or Madam Andre ("MA") (collectively, the "Perls Defendants") came into possession of AC Property through The Perls Galleries ("PG") longtime position-over 20 years-as AC's exclusive American gallerist and dealer from 1954 until AC's death in 1976

"Correspondence" is defined in the Complaint (Ex. 1 footnote 2). -3-

(Ex. I par. 14).

After AC's Dealer Curt Valentin Died in 1954, AC's Property Was Transferred To His New Dealer PG
I 0. Until I954, AC's exclusive American dealer and gallerist was the Curt

Valentin Gallery ("CVG") owned and operated by Curt Valentin ("CV") (Ex. 1 par. 14). Until CV's death in 1954, CVG kept a large inventory of works on consignment from AC and many other personal items belonging to AC (Ex. 1 par. 14). After CV's death, AC selected PG in New York City as his American dealer and gallerist - a relationship that lasted until AC's death in 1976 (Ex. 1 par. 14). PG was owned and operated by KGP and his wife ABP (Ex. 1 par. 11). After CV's death, all of the AC Property in CV's possession was transferred to PG for safekeeping as AC's new American dealer (Ex. 1 par. 14). 11. Upon PG's dissolution in or about 1997 (Ex. I par. 12), PG's

principals, i.e. KGP and ABP, became the successor bailees, fiduciaries, and/or trustees of all AC Property in their respective possession. When KGP and ABP died, in, respectively, 2008 and 2002, their daughter defendant KP as the executrix of KGP and ABP' s estates together with the defendants TPF, LB and MA became the successor bailees, fiduciaries and trustees of all of AC Property in their respective possession. 12. In a letter dated April 12, 1996 from ABP to me (Ex. 5),2 ABP concedes

The date of Exhibit 5 is April 12, 1996 and not 1995. KGP and ABP visited CF in Woodstock, New York on December 4, 1995. I followed up with a letter to KGP and ABP the following day (Ex. 6). ABP then sent me Ex. 5 in the following April, i.e. April I996. As is clear from the face of Ex. 5 with many glaring typing mistakes, ABP was a bad typist and initially typed I994 and then typed I995 over it, but she got it wrong both times. It was 1996 and not I995.

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that PG "took over" from CV after his death and "there's all kinds of things that we've been hanging onto since we took over after poor Curt [Valentin] died .... they sent us piles of Sandy's [AC's] things on these kind of sleds 3 and we slowly sorted it all out" (Ex. 5).

Unknown To The Estate, At The Time Of AC's Death in 1976, PG Possessed Many Items Of AC Property Which Were Never Inventoried 13. ABP confirmed in her 1996 Jetter (Ex. 5) that PG possessed many items

of AC Property, including without limitation personal property belonging to AC, such as AC's original letters, viz., the Correspondence, certain early works on paper, and a large stock of AC Property from the artist's former dealer CV, i.e. "piles of Sandy's [AC's] things on these kind of sleds" (Ex. 5). Such AC Property was never intended for sale by AC and were never a part of the PG inventory of AC works for sale- see Ex. 5 in which ABP states "we never bothered to even inventory them." ABP's statements clearly do not indicate the subject AC Property belonged at any time to anyone other than AC. 14. Pursuant to ABP' s April, 1996 letter (Ex. 5), ABP "promised" she is

"going to gather up what all we have from Sandy [AC] for your files" (Ex. 5). ABP expressed her promise ofthe AC Property in her Aprill996letter (Ex. 5) and promised to deliver such AC Property at a later date. Although plaintiffs and the Estate respect ABP's and KGP's belated "generosity," it is the plaintiffs' position that all such AC Property legally belongs to the Estate.

The word "sleds" appears to be a mistake and should be "skids."

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The Mayhew v Perls Action 4

15.

In 2005, DM sued PG, KGP, KP, MA and LB (Ex. 6), i.e. the Mayhew v

Perls action. The Mayhew v Perls action settled in June 2006 (Ex. 7). Significantly, the defendants in their Answer in this action (Ex. 8 pars. 22-24) deny possession ofthe Correspondence and other AC Property. However, it was not until discovery in this action when the settlement agreement (Ex. 7 bates stamped DMRC 00001-00015i was produced by the Mayhew Parties in 2011, that plaintiffs first became aware that the defendants allowed the Mayhew Parties, without the knowledge, consent or approval of the plaintiffs, to unlawfully place the Correspondence and other AC Property in escrow pursuant to the Mayhew v Perls settlement agreement (Ex. 7 par. 9). Pursuant to that settlement agreement, the Correspondence and other AC Property were released from escrow into PG's possession, custody and control in 2011 (Ex. 7 par. 9), after this action had commenced. 16. Moreover, it was not until the Mayhew v Perls settlement agreement was

produced in this action that the level of deception perpetrated against the Estate by the Perls Defendants was realized. Ex. 9 contains three letters from me to KP dated August 18, 2008, September 9, 2008 and May 19,2009. Each ofthose letters requests assistance from KP to retrieve the AC Property promised by her mother ABP. In the September 9, 2008 letter (Ex. 9) I memorialized KP's representations to me that she would "be looking out for those letters and documents in your [KP's] father's house." I further stated in that letter that "I believe there may be more material in Klaus's [KGP] house that properly belongs to my grandfather's estate ... "

"Mayhew v Perls action" is defined in paragraph 2 ofthe Complaint (Ex. 1 par. 2). "DMRC" is an acronym for former defendants Douglas Mayhew and Roberto Caballero.

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(Ex. 9). KP's representations to me were unequivocally false as she was aware all along that the CoJTespondence and other AC Property was being held in escrow pursuant to a June 2006 settlement agreement (Ex. 7 par. 9) and would be (and was) released to KP in 2011. PG's Inventory Ledger And The Need For An Accounting 17. Prior to this lawsuit, KP had repeatedly represented to me that there was

no PG inventory ledger concerning AC's works of art that were consigned to PG by AC. I understand that after this action commenced, the Perls Defendants' counsel Steven Wolfe, Esquire made the same representations to plaintiffs' counsel Aaron Richard Golub, Esquire. Notwithstanding that KP and her counsel had previously and repeatedly denied the existence of such a KP ledger or inventory, on March 14, 2012, the PG inventory ledger miraculously appeared. The Perls Defendants, by their counsel, produced only a redacted portion of the left hand side ofPG's inventory ledger (Ex. I 0) as part of discovery in this action. The right hand side of the ledger was not produced. 18. Upon examination of the incomplete PG inventory ledger, and subject to

further discovery, there appears to be approximately 679 AC works of art, which do not appear in PG's inventory ledger, notwithstanding that other AC records indicate PG being listed as part of the provenance history of the approximately 679 AC works of art. Moreover, of the approximately 679 AC works of art which do not appear on PG's inventory ledger, subject to further discovery, approximately 529 of such AC works not only have PG listed in the provenance, but the PG inventory numbers assigned to such AC works are known and original PG inventory photographs of such AC works of art exist. PG inventory photographs are photographs that PG took of items from their inventory along with notes on the back of the

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photographs and a rubber stamp on the back bearing the gallery's name. This begs the question as to why these hundreds of AC works do not appear in PG's inventory ledger. This discovery warrants, among other things, a full, accurate and detailed accounting with respect to all of PG, KGP and ABP's transaction history and business activities concerning AC and the proceeds generated therefrom and all amounts owed by the Perls Defendants to plaintiffs.

WHEREFORE, it is respectfully requested that plaintiffs' motion be granted in full, together with such other and further relief as to this Court seems ju

ALEXANDER S. C. ROWER Sworn to before me this 30th day ofNovember 2012

Kana S. SoDD Notary Publk. State of New York .. No.I# 02806135695 QaalifkciJa WesCebester ~ 1'~- _.,..........,. 6,

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