Is it possible to win and lose a court case? Rulings made in New York Supreme Court last month on a long-running dispute over allegedly fake Russian Suprematist art seem to suggest so.
The lawsuit, which dates back to 2009, is between Gary Tatintsian, a Russian art dealer, and Lev Nussberg, an artist, art historian and collector, who was born in Russia and lives in Connecticut. It concerned non-payment and breach of contract over allegedly forged works by artists including Kazimir Malevich, Nikolai Suetin and Ilya Chashnik.
Judge calls case “ridiculous”
A New York jury decided last month that Nussberg had sold Tatintsian fake works under a contract dating back to 2006, covering the $3m sale of 95 works. Nussberg had claimed that these came from the artists’ heirs, mainly from the archive of Suetin’s partner, Anna Aleksandrovna Leporskaya. Nussberg said that the works Tatintsian had brought to court were not the same pieces as those he had originally sold, and that Tatintsian had swapped authentic works for fakes. But Tatintsian’s counsel used photographic matching analysis to argue successfully that the works brought to court were the same as those Nussberg had sold. The jury then decided that these were fakes, based on expert testimony.
Despite this victory, Tatintsian was awarded only nominal damages of $5. This was because Justice Shirley Kornreich, who had previously called the case “ridiculous” in court transcripts, excluded all of the evidence submitted by Tatintsian’s lawyers concerning the value of the forged works, and did not apply a contractual provision that stated that the entire purchase price must be refunded if the works were found to be inauthentic.
Furthermore, the judge severed her ruling on the 2006 contract from rulings on two additional contracts made between the two men for the consignment of 11 Malevich drawings for $752,000 in 2007, and for the $2.6m sale of a further 97 works in June 2009. Justice Kornreich decided that the 2007 and 2009 deals should be looked at separately and did not need to be heard by the jury. She ruled on the deals herself, determining that Tatintsian had breached his contractual duties by failing to pay Nussberg for the works. The judge awarded Nussberg damages of $3.6m, payable by Tatintsian. Her ruling on this did not allow for any decision on whether these works were authentic or fake.
The case is not yet over. In a post- verdict briefing that is due to be held at the trial court this month, both sides have been asked by Justice Kornreich to address the question of notice in the 2006 case, and whether Tatintsian relayed his concerns about the fake works to Nussberg in a timely fashion. If the judge finds that he did not, the jury’s decision could yet be thrown out.
Additionally, Nussberg has a pending appeal over the photographic matching analysis, and Tatintsian is expected to challenge the valuations of the works in the 2006 case, as well as the judgment concerning the 2007 and 2009 contracts.
• Originally appeared in The Art Newspaper with the headline "Heat but little light in fakes case"