Is it, or is it not, a Warhol? The primary issue presented in this action is whether the artwork entitled the "315 Johns" was created in 1971 by the late Andy Warhol or by on his studio assistant Gerard Malanga? In this action, in effect, for replevin and to recover damages for conversion, defendant John Chamberlain ("Chamberlain") moves for summary judgment dismissing the amended complaint.

Plaintiff, Gerard Malanga ("Malanga"), is an artist, poet and film maker. Between 1963 and 1970, Malanga was an assistant to Andy Warhol, the iconic artist, who died in 1987. Malanga, who is widely [*2]considered to have been Warhol's right-hand man, was, among other things, involved in creating Warhol's iconic silkscreened paintings at the New York City studio known as the Factory. Chamberlain, a world-renowned sculptor, was a friend and colleague of Warhol's.

The artwork known as the"315 Johns" consists of 315 eight inch square canvas silkscreen panels depicting Chamberlain's face. Malanga avers that in 1971, he, along with fellow artists Jim Jacobs ("Jacobs") and the late Irene Harris, created the silkscreen paintings that were later incorporated into the "315 Johns". Malanga also alleges that he and his colleagues created in excess of 320 of the Chamberlain portraits. The portraits were allegedly done in the style of Andy Warhol, but without his knowledge or supervision.

Jacobs avers that the portraits were created at Jacobs' home in Great Barrington, Massachusetts. Jacobs claims that in 1975 or 1976 he moved the portraits to his loft in Manhattan. When Jacobs vacated his loft in 1977, he moved the portraits, along with other possessions, to the Chamberlain's loft where Chamberlain allegedly agreed to store them without charge. Marilyn Chamberlain, Chamberlain's ex-wife, avers that the portraits were moved to the Connecticut home that she shared with her then-husband, Chamberlain. Marilyn Chamberlain believed that the portraits became her property upon her divorce in 1983 and took possession of them. In 1988, Marilyn Chamberlain visited her former husband at his studio in Florida and left the portraits with him.

Malanga maintains that he gave no further thought to the portraits until he ran into Chamberlain at an exhibition on February 18, 2004. Malanga alleges that, at the exhibition, Chamberlain told him that he had sold the portraits for $5,000,000. Malanga was given the impression that Chamberlain had depicted the artwork as a genuine Warhol and had sold it as such. Malanga demanded the return of the artwork on October 11, 2005 and, when it was not returned, commenced this action for replevin and conversion on December 23, 2005.

Chamberlain argues in his affidavits that Andy Warhol created 324 silkscreen portraits of defendant, 315 of which make up the artwork the "315 Johns." Warhol allegedly created the portraits with the intention that they be incorporated into a large artwork. Chamberlain avers that these portraits were delivered to him by Warhol, in exchange for artwork that he had created. Chamberlain then allegedly had the portraits assembled into the artwork the "315 Johns." In 1999, Chamberlain submitted the "315 [*3]Johns" to the Andy Warhol Art Authentication Board (the "Authentication Board"). On June 26, 2000, the Authentication Board issued an opinion stating that the "315 Johns" was created by Andy Warhol. Chamberlain asserts that he sold the artwork later in July, 2000.

By Order dated August 13, 2008, defendant's prior motion for summary judgment was denied by this Court without prejudice to renew and plaintiff's cross motion for leave to amend the complaint to add causes of action was granted. The Order was affirmed by the Appellate Division, Second Department on March 2, 2010 (Malanga v. Chamberlain, 71 AD3d 644 [2010]). Defendant now moves again for summary judgment after the completion of all discovery.

This action is scheduled for trial on January 7, 2011.

The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (CPLR Section 3212(b); Alverez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Megafu v. Tower Ins. Co. of New York, 73 AD3d 713 [2d Dept 2010]). However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra ) "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]).

Chamberlain's first ground for summary judgment is that there is no evidence to support the cause of action alleging an express or implied bailment. In Martin v. Briggs the First Department explained that:

"A "[b]ailment does not necessarily and always, though generally, depend upon a contractual relation. It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not." (Foulke v New York Consolidated R. R. Co., 228 NY 269, [*4]275.) A bailment "may arise from the bare fact of the thing coming into the actual possession and control of a person fortuitously, or by mistake as to the duty or ability of the recipient to effect the purpose contemplated by the absolute owner." (Phelps v People, 72 NY 334, 358.) A bailment "may be created by operation of law. It is the element of lawful possession, and the duty to account for the thing as the property of another, that creates the bailment, whether such possession results from contract or is otherwise lawfully obtained. It makes no difference whether the thing be intrusted to a person by the owner or by another. Taking lawful possession without present intent to appropriate creates a bailment. " (Seaboard Sand & Gravel Corp. v Moran Towing Corp., 154 F2d 399, 402 [2d Cir. 1946]; see, Mack v Davidson, 55 AD2d 1027; 391 NYS2d 497.)"

Chamberlain's second claim for summary judgment is that the third cause of action for breach of an implied or explicit bailment is barred because Malanga unreasonably delayed making a demand for the return of the artwork.

"An owner of property who has knowledge of its location cannot unreasonably delay making demand upon the person possessing the property" (Martin, supra , at 198). Malanga alleges that he first learned that Chamberlain had appropriated the artwork on February 18, 2004 and demanded its return on October 11, 2005. This is not an unreasonable delay.

Chamberlain's third argument is that he has established that he is or was the owner of the artwork as a matter of law. Chamberlain's affidavit avers that he received the artwork from Warhol in exchange for a sculpture, is sufficient to meet his prima facie burden. The opposition affidavits, however, paint an entirely different picture and are more than sufficient to create a triable issue of fact.

Chamberlain's fourth argument is that the entire amended complaint is barred by the three year statute of limitations set forth in CPLR § 214. "The controlling three-year statute of limitations for conversion and replevin runs from the earlier of the time when a defendant refuses to return the property after a demand, or the time when the defendant disposes of the [*5]property (Malanga v. Chamberlain, supra (citations omitted)). The action was timely if judged from the time of the demand. Chamberlain has not conclusively established when, or even if, a sale took place. Thus, this cause of action cannot be dismissed on statute of limitations grounds.

Chamberlain seeks to dismiss the replevin cause of action on the grounds that he no longer has possession of the artwork. Chamberlain has failed to meet his prima facie burden of establishing that he sold the artwork and this cause of action cannot be dismissed on this ground.

Chamberlain's final argument is that the amended complaint should be dismissed on the grounds of laches.

"The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought. Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay"

The parties are urged to expeditiously proceed to trial as this action has been pending for five years.

In sum, the defendant's motion for summary judgment is denied.

This shall constitute the Decision and Order of the Court.

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J.S.C.