Rothko Historian Can’t Shake Forgery Lawsuit

MANHATTAN (CN) - A renowned Mark Rothko historian who staked his reputation on the provenance of an untitled $7.2 million artwork whose real painter is under indictment failed to prune civil claims against him, a federal judge ruled.

The case is one of many tied to the December 2011 collapse of the 165-year old Knoedler Gallery, as federal lawsuits poured in accusing the once-elite gallery of serial forgeries attributed to the likes of Jackson Pollock and Willem de Kooning.

Federal prosecutors indicted the alleged forger, Chinese-born Queens resident Pei Shen Qian, and accused money launderers, brothers Jose Carlos Bergantinos Diaz and Jesus Angel Bergantinos Diaz, in April 2014.

That same month, ultimate fighting entrepreneur Frank Fertitta entered the legal fray over the Qian forgery he allegedly bought from Knoedler: "Untitled (Orange, Red, and Blue)," a purported 1959 Rothko.

U.S. District Judge Paul Oetken refused to dismiss Fertitta's allegations against art historian Oliver Wick and two other defendants on Thursday.

"Wick, a world-renowned Rothko expert, advised Fertitta on the provenance of the painting, confirming that 'all is perfectly fine,'" Oetken wrote in a 23-page opinion. "For this Wick 'st[ood] with [his] name as a Rothko scholar.' ... That turned out to be a mistake." (Brackets in original)

Oetken upheld rescission, breach of warranty, and indemnification counts against Wick on Thursday.

Approached for comment Friday, Wick's attorney, David Baum of the firm Dentons US LLP, emphasized the preliminary stage of the case.

"The court merely decided that the case can proceed beyond the initial stage," Baum said in an email. "We are very confident that things will ultimately resolve in our favor. Like many other people caught up in this mess, Wick reasonably believed the work was genuine."

Urs Kraft, whom Fertitta says coordinated the sale on behalf of a mysterious "Mr. X" and his son, "Mr. X, Jr.," also failed to throw out the lawsuit.

Summarizing the allegations of the lawsuit, Oetken said "there is no Mr. X."

Kraft must now face breach of warranty, breach of contract, fraud, fraudulent concealment, aiding and abetting fraud, indemnification, and rescission claims, Oetken ruled.

Kraft's lawyer declined to comment.

Ex-Knoedler employee Jaime Andrade faces the heaviest charges of the three, including violating federal anti-racketeering law and a RICO conspiracy charge.

Andrade allegedly introduced Knoedler's director, Ann Freedman, to Long Island gallerist Glafira Rosales, who sold the Rothko at issue in this case before pleading guilty to an $80 million fraud in 2013.

Andrade's attorney, Silvia Serpe of Serpe Ryan LLP, cast her client as an unknowing party in Knoedler scandal.

"Mr. Andrade never knew that the gallery where he worked sold fake art," Serpe said in an email. "He was a very low-level employee. It is a tragedy that this man, who is in his 80s, has been caught up in this."

Fertitta's attorney did not respond to a request for comment.

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