John McEnroe Sues Dealer over a Gorky

     MANHATTAN (CN) – John McEnroe and Morton Bender say art dealer Joseph Carroll refuses to give them Arshile Gorky’s 1943 painting, “Pirate II,” though McEnroe and Bender “are unequivocally the 100% owners of the painting.”

     According to the complaint in New York County Court, (nonparty) Lawrence Salander, managing member of Salander-O’Reilly Galleries, asked Bender in October 2004 if he wanted to buy a half-interest in Gorky’s Pirate I and II, then on sale at a Paris auction. Bender says the total purchase price for both paintings was $4.2 million. He says he bought the half-interest in the paintings, and loaned Salander another $2.15 million to buy the paintings.
     In October 2004, Bender says, Salander asked McEnroe if he wanted to buy a half-interest in both paintings for a little over $2 million. McEnroe agreed, and Salander agreed “not to sell Pirate II for less than $5 million without McEnroe’s prior consent,” according to the complaint. McEnroe wired Salander the money in November 2004, the complaint states.
     McEnroe says that in February 2007, he found that Salander had sold Pirate II without his consent. McEnroe says that “despite the fact that Bender owned a 50% interest in Pirate I, Salander falsely represented to McEnroe that he, on behalf of Salander Galleries, had the sole, exclusive and unencumbered right to sell of market Pirate I and to retain 100% of the proceeds relating to any sale of Pirate I.
     “Based upon Salander’s false representation that he had the sole, exclusive and unencumbered right to sell or market Pirate I, McEnroe agreed that he would transfer his 50% interest in Pirate II for a 100% interest in Pirate I. However, such a purported agreement is void and against public policy for lack of consideration since Salander did not have the ability or authority to provide McEnroe with a 100% interest in Pirate I due to the existence of Bender’s 50% interest.
     “Such a purported agreement is also void and illegal since its purpose and object was to perpetuate a fraud on McEnroe, as well as Bender, a third party.”
     To complicate things still further, “Instead of marketing and selling Pirate II, Salander Galleries entered into a series of improper transactions, without plaintiffs’ knowledge or consent, culminating in the subsequent sale of Pirate II to defendants. At all times, defendants concealed these transactions from plaintiffs.”
     McEnroe and Bender say Salander made a “sham transaction” and transferred the alleged ownership of Pirate II to “an alleged affiliated entity, The Seven Salander Children Group. … Thereafter, on Oct. 9, 2006, the Carroll Parties entered into an exchange/buy-back agreement with The Seven Salander Children Group for the transfer of Pirate II in exchange for two paintings of lesser value. As sophisticated and experienced art merchants, the Carroll Parties knew, or should have known, that the net consideration purportedly exchanged with The Seven Salander children Group for Pirate II was far below Pirate II’s fair market value. …
     “On March 6, 2009, Bender, through his counsel, sent defendants a letter confirming Bender’s ownership interest in Pirate II. Defendants are also aware that McEnroe claims an ownership interest in Pirate II. To date, the Carroll Parties have refused to return Pirate II to plaintiffs, nor do they acknowledge plaintiffs’ ownership interest in Pirate II.”
     McEnroe and Bender want the painting, and no less than $5 million in damages for conversion and unjust enrichment. They are represented by Joseph Cervini Jr. with Todtman, Nachamie and Spizz.
     Bender sued Carroll and Edelman Arts in March over ownership of Pirate II.

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