The new complaint, brought by Joel Silver, who produced the films The Matrix and Lethal Weapon, alleges that Gagosian failed to deliver Koons’s Balloon Venus Hohlen Fels, which Silver agreed to buy for $8 million in 2014. Silver says when he attempted to cancel the deal due to the lateness, the gallery told him that he would then have to forfeit the $3.2 million he had already paid, according to court documents.
Silver’s complaint, filed in Manhattan Supreme Court today, draws heavily on similar claims made by hedge-fund manager Steven Tananbaum in a suit filed against both the gallery and Koons on April 19. Tananbaum alleged that the artist failed to deliver three monumental sculptures, despite having paid millions of dollars for them.
“[Gagosian], which holds itself out as the preeminent contemporary art gallery and exhibition space in the world, took millions of dollars in periodic payments for Koons sculptures while extending estimated completion dates by years,” Silver’s complaint alleges. Koons is not named as a defendant in Silver’s suit.
“Koons has become a world-renowned artist because he approaches each piece with utmost integrity and attention to detail,” says a spokeswoman for Gagosian Gallery in a statement. “He produces large, complex pieces of art that require master craftsmanship and take time to execute. Because of the unusual process used to create his pieces, and his impeccable standards for completion, his contracts for sale specifically state that the delivery dates are only estimates. For more than 30 years Jeff Koons has been creating works of art and to our knowledge, without exception, has never failed to deliver these works and always to the enormous satisfaction of the collector. Progress is being made on the pieces at issue in these litigations, and as always they will be delivered upon completion.”
When Silver bought the Venus in February 2014, he expected it to be delivered in June 2017. But in January of that year, Gagosian reportedly notified Silver that the estimated completion date would be delayed by more than two years, to July 2019, allegedly citing “difficulties in completing a ‘digital model.’”
Silver, frustrated by the delay, requested a refund. Gagosian “refused, however, and threatened instead to forfeit the $3.2 million unless Silver agreed to continue making payments on a schedule revised to incorporate the delayed completion date.” Faced with this condition, Silver signed a modification agreement which gave a new estimated delivery date of December 2020 and required three payments of $1.6 million each on or before that date.
Then, in early 2018, Silver did not make the first of the remaining three payments. “The gallery made demands that again culminated in the threat to terminate the contract and forfeit the $3.2 million already paid.” Silver offered to pay the remaining $4.8 million “but in a manner designed to protect himself from fraud and to induce” Gagosian to deliver the sculpture in a timely manner. He offered to place $2.4 million in an escrow account, with the money to be released along with the balance owed “upon delivery and completion” of the work. The claim says that Gagosian rejected that offer and instead demanded the $1.6 million payment as previously scheduled.
Silver says Tananbaum’s suit revealed that the same “coercive tactics” had been used against them both. When Silver saw the Tananbaum case, it “reinforced Silver’s suspicions that the millions he had paid… in 2014 and 2015 had not been used to fabricate his sculpture and that there would be even further delays” in completing the work.
In 2016, Gagosian allegedly told Tananbaum that his Balloon Venus, purchased three years earlier, would be completed in June 2018. “At the exact moment, the Gallery was leaving Plaintiff Silver to believe that his Balloon Venus—purchased five months after Tanenbaum’s—would be completed in June 2017, a year earlier than Tananbaum’s.”
Silver made yet another escrow account offer that Gagosian Gallery also rejected.
Under the New York Arts and Cultural Affairs Law, Silver is seeking recovery of the $3.2 million he paid with interest accrued as well as attorneys’ fees. He is also seeking declaratory judgment that the purchase agreement be considered “void and unenforceable” to the extent that it permits Gagosian to forfeit the sums Silver already paid.
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