Jeff Koons’s Gazing Ball sculpture at centre of legal tussle between art dealers

In new court filings, Fabrizio Moretti reveals the work he says David Zwirner has failed to deliver—and is now seeking $6m in damages

by Dan Duray  |  18 August 2016
Jeff Koons’s Gazing Ball sculpture at centre of legal tussle between art dealers
An edition of Jeff Koons's Gazing Ball (Centaur and Lapith Maiden) (2013) was offered for sale at Sotheby's in May 2015 with an estimate of $1.5m to $2.5m—and was bought in
Lawyers for Blue Art Limited, the London-based company owned by the Italian Renaissance dealer Fabrizio Moretti, filed an amended complaint Wednesday night (17 August) against the New York art dealer David Zwirner and his gallery, which Moretti says failed to deliver a work of art he bought for $2m. The new complaint comes after Zwirner’s motion to dismiss named the previously anonymous purchaser and called the lawsuit “a case of buyer’s remorse”. In response, Moretti’s recent court filings reveal the work at the heart of the case—Jeff Koons’s Gazing Ball (Centaur and Lapith Maiden) (2013), from the gallery’s show that year. And while he previously asked for the original purchase price for the work plus fees, Moretti’s updated suit seeks $6m in total damages.

In the new filing, Moretti’s lawyers say Zwirner and the gallery played “a kind of ‘three card monte’ in which the numbered casts of the sculpture”—an edition of three, plus an artist’s proof—“were distributed to their buyers willy-nilly”.

On 24 June 2014, according to the complaint, Moretti made a purchase agreement and soon put down a deposit of $400,000 on edition 2 of 3, his lawyers say. By early 2015, the gallery told Moretti that the sculpture was nearly complete and the collector started paying off what he owed. In April 2015, the work was ready but instead of being delivered to Moretti, it was labelled as edition 3 of 3 and taken to the Contemporary Art Evening Auction at Sotheby’s in May, where it carried an estimate of $1.5m to $2.5m—and failed to sell.

On 29 June 2015, the court papers say, Moretti paid the final $200,000 he owed and around that time, another sculpture was completed. This one, however, was labelled edition 1 of 3 and went to another buyer, who still owed the gallery $1.6m. Moretti, faced with a bad art market and a sculpture from a series that had now been unsold at auction, says he still had not received his piece by the time he filed his lawsuit on 4 August this year.

Further complicating matters is the fact that the editions that were made are not the same as the one shown at the Gazing Ball show at David Zwirner Gallery in May 2013, the complaint says. That is now classified as a “prototype” and the dimensions of the sculpture ready for collection by Moretti are different from the object he purchased, the collector says.

“It’s a shocking level of indifference to customers that is frankly surprising for a dealer who has a buyer who paid $2m,” Moretti’s laywer John Cahill told The Art Newspaper. “The idea not only that [a gallery] can deliver the work to you whenever they want, they don’t even have to tell you what work you’re getting, what size it is, or any information that a specific law requires.”

Moretti’s amended suit alleges that Zwirner’s dealings violate the New York Arts and Cultural Affairs Law, updated in 1991 to “augment the laws protecting art purchasers from the slippery practices of some art dealers”, according to the court papers, and to outline the information that must be provided to the buyer of a sculpture. Moretti is seeking additional damages because Zwirner violated the law in the vagueness of the purchase agreement and in the editioning, the court documents state. The complaint also accuses the dealer and gallery of breach of contract and fraud, among other charges.

“The lawsuit is entirely meritless,” a spokeswoman for David Zwirner says. “The gallery had already moved to dismiss the case and the recent amended allegations are also absolutely baseless. The client has declined delivery of the artwork, which is completed and ready for pick up. Unfortunately he has been attempting to use the court system as a negotiating tactic.”

In the motion to dismiss, Zwirner’s lawyers said there was no breach of contract since Blue Art “did not specify a date or deadline for delivery” and instead tried “simply to walk away from a deal in which it had ‘lost interest’”, quoting an email from Moretti to Zwirner about the sculpture. They also described the fraud claim as “specious”, adding that in its “blunderbuss pleading, Blue Art does not attribute even one alleged misrepresentation to Zwirner—nor can it—revealing that its suit against him personally is no more than harassment”.

“I do not know why David has chosen to treat me in this manner,” Moretti says in a statement on behalf of Blue Art. “It is also unfair to the artist, whom I like and admire. It is no secret that I helped to bring the work of Jeff Koons to the Palazzo Vecchio in 2015. It is my hope that I can receive justice in a New York court.”

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