### Grosso v Cy Twombly Found. 2024 NY Slip Op 31905(U) June 2, 2024 Supreme Court, New York County Docket Number: Index No. 155762/2022 Judge: AndreaMasley Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 102



### SUPREMECOURT OF THE STATE OF NEWYORK COUNTY OFNEWYORK: COMMERCIALDIVISIONPART

### 48

-----------------------------------------------------------------------------------X

PIER FRANCO GROSSO, INDEX NO. Plaintiff, MOTION DATE

- V - INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

155762/2022

CYTWOMBLY FOUNDATION, DAVID BAUM, and NICOLA DEL ROSCIO, MOTION SEQ. NO. 002 003

Defendants.

-----------------------------------------------------------------------------------X HON. ANDREA MASLEY: DECISION+ORDERON MOTION

Thefollowing e-filed documents, listed by NYSCEF document number (Motion 002) 10, 11, 12, 13, 14, 15, 16, 17,29,40, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, 79, 85,92, 93, 94 were read on this motion to/for DISMISSAL
Thefollowing e-filed documents, listed by NYSCEF document number (Motion 003) 18, 19, 20, 21, 22, 30,41,51,52,53,54,55,56,57,58,59,60,80,86,90,91, 95 were read on this motion to/for DISMISSAL In motion sequence number002, defendants CyTwombly Foundation and David R. Baum move pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss the complaint in its entirety. In motion sequence number 003, defendant Nicola Del Roscio moves pursuant to CPLR3211 (a) (8) to dismiss the complaint against him in its entirety, but if the court finds it hasjurisdiction over Del Roscio, he also asks tojoin motion 002. Background Thefollowing facts are taken from the complaint and are accepted as true for the purposes ofthese motions to dismiss. Plaintiff Pier Franco Grosso inherited several ofthe late artist Cy Twombly's works from his father, Francesco Grosso including the Workwhich is the subject ofthis

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

1 of 23 Page 1 of23


### [* 1]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

action. (NYSCEF 38 1
, Complaint

# ,m 17-21.) Plaintiffwas a friend ofCyTwombly (Artist) who died in 2011. 

### (Id.

# ,m 3, 23.) Defendant CyTwombly Foundation is a private foundation formed in 2005 with the aim offostering the study and preservation ofCy Twombly's works. 

### (Id. 

### ,i 5; NYSCEF 90, Grosso's Memo of Law [mot. seq. no. 003] at 6.) In 2011, the defendant Foundation confirmed2 in writing (signed bythe Foundation's President defendant Del Roscio) "thatthe Workwould be included in a publication intended to be part ofa comprehensive catalogue ofthe Artist's works ofart (the "Catalogue Raisonne")." (NYSCEF 38, Complaint 

### ,i 7.) The Foundation or Del Roscio did not request an opportunityto viewthe Work priorto providing the Authentication. 

### (Id. 

### ,i 28.) They also did not indicate that the Artist had any issues with the authenticity ofthe Work. 

### (Id. 

### ,i 30.) Based on the information in its possession, plaintiff believes that at the time the Authentication was provided in 2011, the Foundation and Del Roscio did not have anywritten procedures for communicating information aboutthe Catalogue Raisonne with owners ofartworks attributed to the Artist and did not require "those seeking information about the inclusion ofawork in a Catalogue Raisonne to sign awritten agreementwith the Foundation or anyone else." 

### (Id. 

### ,i,i 31-32.) The Catalogue Raisonne was published in 2013 without including the Work. (NYSCEF 69, Baum's September 17, 2021 Email at pdf pg. 3.)

1 Since the summons and complaint filed as NYSCEF 1 is redacted, the court refers to the complaint as NYSCEF 38, which is sealed but unredacted. 2 Plaintiff refers to this writing as an 'authentication' as according to plaintiff in confirming that the Workwould be included in the Catalogue Raisonne, the Foundation effectivelyauthenticated the Work. (NYSCEF 38, Complaint 

### ,i 7.)

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Page 2 of23 Motion No. 002 003

2 of 23 

### [* 2]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

Plaintiffconsigned the Workto Phillips Auctioneers LLC (Phillips) and received a $ 1.5 million advance against proceeds from Phillips pursuantto written agreements. (NYSCEF 38, Complaint

### ,i 62.) In January2019, Phillips and plaintiffsigned an addendum to theAgreement reaffirming the terms ofthe sale and recording the accrual of interest as ofJanuary2019. (Id. 

### ,i 66.) Phillips scheduled the Workfor sale at an auction in 2019 and contacted the Foundation aboutthe Work priorto the sale. (Id. 

### ,i,i 67-68.)Plaintiffallegesthat defendants made false statements to Phillips aboutthe Work and plaintiff. (Id. 

### ,i 71.) Plaintiffeventuallydiscovered3 that defendants Del Roscio and the Foundation communicated to Phillips through defendant Baum that "therewas "no doubt" that the Workwas afake and Grossowas aware ofthis fact when he consigned the Workto Phillips." (Id. 

### ,i 6.) Defendant Baum also informed Phillips that "the Foundation had been shown this work before, and that there is a specific reason why the work is not in the catalogue raisonne." (NYSCEF 16, Dolan's email dated July 8, 2019.) Defendant Baum was deposed during the Phillips Action wherein he asserted that "Cy Twombly himselfdeclared the workto befake." (NYSCEF 17, Baum Deposition Tr 190:8-12.) Plaintiffallegesthatthe Foundation claimed that the Work is a fake because a 'Gian Piero Grosso' believed to be plaintiff'sfather, submitted the Work for authentication (Submission) through aVienna gallery and theArtist reviewed the Work and declared it to be inauthentic. (NYSCEF 38, Complaint

### ,i 15.) The Foundation

3 Plaintiffonly became aware ofthe nature of Baum's communications with Phillips during discovery in the action filed by Phillips against plaintiff. (PhillipsAuctioneers LLC vPierFranco Grosso, Index No. 651782/2020) (Phillips Action) (NYSCEF 38, Complaint

### ,i 11.)

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Page 3 of23 Motion No. 002 003

3 of 23 

### [* 3]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

also had in its possession an envelope4 (in which the Submission was kept) which had the handwritten inscription "falso dice Cy" which translates in English to "false says Cy". 

### (Id. 

### ,i 15; NYSCEF 69, Baum's September 17, 2021 Email.) The Foundation believed this to be proofthat CyTwombly himself reviewed5 the Submission and declared the Workto be inauthentic. (NYSCEF 69, Baum's September 17, 2021 Email.) Plaintiffchallenges these claims and alleges that the Foundation's statements to Phillips were demonstrablyfalse because 'Gian Piero Grosso' was not plaintiff's father, the handwriting on the envelope is ofan unknown person and not the Artist and the Artist sawthe Work in-person at Grosso's residence and nevercommunicated that the Work is afake or in any indicated that he was not the creator ofthe Work. (NYSCEF 38, Complaint 

### ,i,i 22, 25-26, 48.) Plaintiffalleges that through their actions and false statements, defendants "intended to convince Phillips thatthe Workwas not authentic, sought to impermissibly interfere with Mr. Grosso's business relationship and Agreementwith Phillips and induced Phillips into withdrawing the Workfrom sale." 

### (Id. 

### ,i 72.) Plaintifffurther contends that defendants procured a criminal record evidencing a conviction ofa 'Pier Franco Grosso' in Italy and shared it with Phillips6 claiming it to be a criminal record for Grosso. 

### (Id. 

### ,i,i 50-55.)

4 These documentswere produced by the Foundation in response to subpoenas issued by Grosso in the Phillips Action. (NYSCEF 69, Baum's September 17, 2021 Email.) 5 The Foundation also claims that the Artist inscribed a photograph ofthe Workwith the words "FAKE Cy" and this photograph has since gone missing coincidentwith a breakin at the Foundation's offices. (NYSCEF 38, Complaint 

### ,i 15; NYSCEF 69, Baum's September 17, 2021 Email.) 6 The record was shared with both Phillips and counsel for Grosso in response to subpoenas issued in the PhillipsAction. (NYSCEF 71, Baum's September21, 2021 Email.)

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Page4 of23 Motion No. 002 003

4 of 23 

### [* 4]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

Plaintiffclaims that due to defendants' false statements and actions, the Work
was notsold and plaintiff in March 2020 was publicly branded as having owned and fraudulently consigned a fake artworkto Phillips. (Id. 

### ,i 73.) Phillips eventually also filed
a complaint against plaintiffentitled PhillipsAuctioneers LLC vPierFranco Grosso, Index No. 651782/2020 (PhillipsAction) alleging among otherthings, breach ofcontract and fraud arising out ofplaintiff's consignment ofthe Workto Phillips. (Id. 

### ,i 3.) Plaintifffiled this action against defendants on July 11, 2022, alleging the following causes ofaction: (i) Tortious interference with business relationships (Count I); (ii) defamation (Count 

### 11); (iii) prima facie tort (Count 

### 111); (iv) fraud (Count IV); (v) Injurious Falsehood (CountV); (vi) Product Disparagement (CountVI); and (vii) Negligent Misrepresentation (against the Foundation in the alternative) (CountVII). (Id.) DISCUSSION Legal Standard On a motion to dismiss pursuant to CPLR 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit ofevery possible favorable inference, and determine onlywhetherthe facts as alleged fit within any cognizable legal theory." (Leon vMartinez, 84 NY2d 83, 87-88[1994] [citation omitted].) To prevail on a CPLR 3211 (a)(1) motion to dismiss, the movant has the "burden ofshowing thatthe relied-upon documentary evidence resolves all factual issues as a matter oflaw, and conclusively disposes ofthe plaintiff's claim." (Fortis Fin. Servs. v FimatFutures USA, 290 AD2d 383, 383 [1st Dept 2002] [internal quotation marks and citation omitted].) "A cause ofaction may be dismissed under CPLR 3211 (a)(1) only where the documentary evidence utterly refutes [the] plaintiff's factual allegations,

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

5 of 23 Page 5of23


### [* 5]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024
conclusively establishing a defense as a matterof law." (ArtandFashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014] [internal quotation marks and citation omitted].) For evidenceto be considered documentary, it "must be unambiguous and of undisputed authenticity." (Fontanetta vJohn Doe 1, 73 AD3d 78, 86 [2nd Dept201

### O].) Affidavits and deposition testimony do not constitute "the type of documentary evidence that may be considered on a motion pursuant to CPLR 3211 (a) (1)." (Correa v Orient-Express Hotels, Inc., 84 AD3d 651, 651 [1st Dept 2011] [citations omitted].) "On a motion to dismiss a cause ofaction pursuantto CPLR 3211 (a) (5) as barred bythe applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiffto raise a question offact as to whetherthe statute of limitations has been tolled, an exception to the limitations period is applicable, orthe plaintiffactually commenced the action within the applicable limitations period." (Flintlock Constr. Servs., LLC vRubin, Fiorella 

### & Friedman, LLP, 188 AD3d 530, 531 [1st Dept 2020] [citations omitted].) CPLR 3211 (a) (8) authorizes dismissal of"one or more causes ofaction asserted

... on the ground that

... the court has notjurisdiction ofthe person ofthe defendant." "On a motion pursuant to CPLR 3211 (a) (8) to dismissfor lack of personal jurisdiction, the party assertingjurisdiction has the burden ofdemonstrating 'satisfaction ofstatutory and due process prerequisites."' (MatterofJames viFinexInc., 185 AD3d 22, 28-29 [1st Dept 2020] [citation omitted].) A plaintiff meets this burden by presenting

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

6 of 23 Page 6of23


### [* 6]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

affidavits and relevant documents. (See Coast to CoastEnergy, Inc. v Gasarch, 149 AD3d 485,486 [1st Dept 2017].) Mot. Seq. No. 003 Personal Jurisdiction NewYork courts may exercise generaljurisdiction over a defendant underthe United States Constitution or under CPLR 301 ifthe defendant is domiciled in the state
or has "continuous and systematic" contactswith NewYorkwhich are substantial enough to render the defendant at home in NewYork. (DaimlerAG vBauman, 571 U.S. 117, 126, 134, 139; IMAXCorp. vEssel Group, 154 AD3d 464, 465-466 [1st Dept 2017].) Activities undertaken by an individual defendant in the state on behalfofa corporate entity do not confer personaljurisdiction overthe individual defendant. (IMAX Corp., 154 AD3d at 466 [internal citation omitted].) Courts mayalso exercisejurisdiction over a non-domiciliary if it has long-arm jurisdiction overthe defendant under CPLR 302 and the exercise ofsuch jurisdiction comports with due process. 

### (0 

### & R Glob. Selections, S.L. vBodega Olegario Falcon Pineiro, 29 NY3d 292 [2017].) In mot. seq. no. 003, defendant Del Roscio moves pursuant to CPLR 3211 (a) (8) to dismissthe compliant against him for lackofpersonaljurisdiction. Del Roscio, an Italian citizen and resident, contends that the court does not have generaljurisdiction
over him because he is not domiciled in NewYork and does not have "continuous and systematic contactswith NewYorksufficient to render him essentially at home in New York." (NYSCEF 19, Del Roscio's Memo of Law at 6.) Del Roscio further contends that

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

7 of 23 Page 7 of23


### [* 7]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

the court also does not have specificjurisdiction over him under CPLR 302 as the only interaction alleged between him and plaintiffoccurred in Italyover a decade ago. (Id.) General Jurisdiction Roscio disputes the assertion in the complaint7that "on information and belief, Defendant Nicola Del Roscio is an individual who has a residence and a workplace in the State and County of NewYork." (Id. at 7.) He claims that he resides and works in Italy and does not regularly conduct business on behalfofthe Foundation in NewYork. (NYSCEF 22, Del Roscio aff

### ,i,i 2-6.) He claims that he has not conducted any personal
or non-Foundation business in NewYork. (Id. 

### ,i 6.) Plaintiffcontends that the Foundation's general presence in the forum is sufficientto confer generaljurisdiction over Del Roscio. (NYSCEF 90, Grosso's Memo of Law [mot. seq. 003] at 11.) Plaintiff relies on the alter-ego theoryto contend that "where a court has personaljurisdiction overa defendant, the court also hasjurisdiction
overthe defendant's alterego, and suchjurisdiction overthe alterego does not offend due process." (Id.) Plaintiffalso contends that Del Roscio is estopped from claiming that he is not domiciled in Italy because he "holds himselfas residing in NewYorkfor tax purposes." (Id. at 13.)8 Del Roscio is not domiciled in NewYork and does not have continuous or systematic contactswith NewYorkwhich would render him at home in NewYork. He

7 Plaintifffurther contends in the complaint that Roscio's address is listed as "19 East 82nd Street, NewYork, NY 10028 on the Foundation's most recent taxfiling." (NYSCEF 38, Complaint 

### ,i 59.) 8 The Foundation's most recent taxfiling (Form 990) lists the defendant Del Roscio's address as "19 East 82nd Street, NewYork, NY 10028which is the Foundation's New York address. (NYSCEF 38, Complaint 

### ,i,i 57, 59.)

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Page 8 of23 Motion No. 002 003

8 of 23 

### [* 8]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

does not regularly conduct business on behalfofthe Foundation from NewYorkand in any event, activities undertaken on behalfofthe Foundation would not confer personal jurisdiction over Del Roscio. Plaintiff's contention that this court acquires general jurisdiction over Del Roscio by virtue ofthe Foundation's general presence in NewYork is contraryto prevailing law. (See IMAXCorp., 154AD3d at 466 [internal citation omitted]. The court also rejects plaintiff's reliance on an alter-ego theory. A corporate veil will be pierced to exercisejurisdiction over an alter-ego ifthere is complete domination to commit fraud orawrong against plaintiff. (MatterofMorris vNew York State Dept. of Taxation andFin., 82 NY2d 135 [1993] "Factors to be considered include the disregard ofcorporate formalities; inadequate capitalization; intermingling offunds; overlap in ownership, officers, directors and personnel; common office space ortelephone numbers; the degree ofdiscretion demonstrated bythe allegedly dominated corporation; whether dealings between the entities are at arm's length; whetherthe corporations are treated as independent profit centers; and the payment orguaranty ofthe corporation's debts bythe dominating entity. No one factor is dispositive." (Fantazia Intern. Corp. v CPL Furs New York, Inc., 67 AD3d 511, 512 [1st Dept 2009].) None ofthese factors exist here. Plaintiff's conclusory assertions that Del Roscio is the "key decision maker", "an integral part ofthe day-to-day activities ofthe Foundation", "the primary individual associated with the Foundation orArtistwho provides information aboutwhetheran artwork attributed to the Artistwill be included in any ofthe Artist's catalogues raisonne" (NYSCEF 90, Grosso's Memo of Law [mot. seq. 003] at 12) do not provide a sufficient basis for this court to find that Del Roscio is the Foundation's alterego. Further, plaintiff has failed to allege much less demonstrate that Del Roscio used the Foundation's corporate form to perpetuatefraud on plaintiff. Plaintiff's reliance on

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

9 of 23 Page 9 of23


### [* 9]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

the Foundation's Form 990 taxfiling to allege "judicial estoppel" is misconceived. Del Roscio putting down a NewYork address atwhich he can be contacted9 is not tantamount to him claiming a NewYork residence. Del Roscio is correct in contending that "the form lists the same address for all ofthe Foundation's officers, so it clearly is not Del Roscio's residence" (NYSCEF 19, Del Roscio's Memo of Law [September 16, 2022] at 10, fn 3) and was likelythe only NewYork address he could provide, being an Italian resident. The courtfinds that it does not have generaljurisdiction over Del Roscio. SpecificJurisdiction The defendant Del Roscio contends that the court does not have specific jurisdiction over him under CPLR 302 (a) as the acts in the complaint attributed to Del Roscio all occurred outside of NewYork. In the complaint, plaintiffalleges that Del Roscio on behalfofthe Foundation agreed in writing to include the Work in the Catalogue Raisonne (NYSCEF 38, Complaint 

### ,i 7) and at some point "Roscio grew hostile to Mr. Grosso and eventuallystopped communicating with Mr. Grosso altogether." 

### (Id. 

### ,i 42.) Del Roscio explains in his affidavit that he had signed the back ofa photograph ofthe Work (which plaintiff refers to as the signed writing in 

### ,i 7 ofthe complaint) during a meeting with plaintiffwhich took place in Rome, Italy (NYSCEF 22,

9 According to Del Roscio, "The IRS website makes clearthat corporate officers do not haveto puttheir home address on Form 990". See Exempt Organizations Annual Reporting Requirements - Form 990, Parts 

### 1-V: Home Addresses Need Not Be Reported. The IRS website states that an organization may list business addresses at which these persons can be contacted, rather than their home address." (NYSCEF 95, Del Roscio's Memo of Law [November21, 2022] at 12; NYSCEF 19, Del Roscio's Memo ofLaw [September 16, 2022] at 10, fn 3.)

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Page 10of23 Motion No. 002 003

10 of 23 

### [* 10]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

Roscio aff

### ,i 7) and he last visited NewYork in 2020 for purposes wholly unrelated to plaintiff, the Work, orthe issues in dispute in this litigation. (Id. 

### ,i 8.) Plaintiffcontends that "CPLR 302 (a) (1) does not require that every element of the cause ofaction pleaded must be related to the NewYork contacts; rather, where at least one element arises from the NewYork contacts, the relationship between the business transaction and the claim asserted supports specificjurisdiction underthe statute." (NYSCEF 90, Grosso's Memo of Law [mot. seq. 003] at 14.) Plaintiffalso contends that the court can find specificjurisdiction over Del Roscio because he repeatedly projected himself into thejurisdiction (via telephone oremail) through Baum. (Id. at 15-16.) Plaintiffalso claims that personaljurisdiction can be exercised over Del Roscio under CPL 302 (a) (3) because he spread falsehoods (through Baum) to Phillips about plaintiffand the Work and facilitated the procurement and distribution ofthe False Criminal Record to further defame plaintiff. (Id. at 16-18.) In the alternative, Grosso requests leave to replead his allegations and conductjurisdictional discovery. (Id. at 19.) Fora court to exercisejurisdiction under CPLR 302 (a) (1), the "attachmentto NewYork must be (1) purposeful; and (2) there must be a substantial relationship between the NewYorktransaction ofbusiness and the claim asserted." (Silverman v Minify, LLC, 2016 NY Slip Op 30046 [U] *5 [Sup Ct, NY Cty2016].) "Purposeful activities are defined as those with which a defendant, through volitional acts, avails itselfofthe privilege ofconducting activities within the forum State, thus invoking the benefits and protections of its laws." (C. Mahendra (N. Y), LLC vNat'/Gold

### & Diamond Ctr., Inc., 125AD3d 454,457 [1st Dept 2015] [internal quotations and citations omitted]). A court can exercisejurisdiction even in the absence of physical presence if

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

11 of 23 Page 11 of23


### [* 11]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

the "the defendant on his [or her] own initiative

... project[s] himself[or herselfj into this state to engage in asustained and substantial transaction ofbusiness." (Silverman, 2016 NY Slip Op 30046 [U] *, 8 [internal quotations and citations omitted]). The court does not havejurisdiction over Del Roscio under CPLR 302 (a) (1) because the Authentication which is the onlyact by Del Roscio which has a substantial relationship with the claims in this action was performed in Italy. Grosso's argument that Del Roscio projected himself into the State through telephone calls and emailswith Baum and other employees ofthe Foundation is similarly unavailing. "To establish that
a defendant acted through an agent, a plaintiff must convince the court that [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit ofand with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the NewYork actors]." (Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485, 486-487 [1st Dept 2017] [internal quotation marks and citation omitted].) Grosso has failed to profferspecific facts to showthat Del Roscio exercised control over Baum in relation to the specific matter in question. Conclusory assertions about telephone calls and emails between Del Roscio and Baum
are insufficientto make such a showing. A court may exercise personaljurisdiction under CPLR 302 (a) (3) ifa defendant commits a tortious act outside the state which causes injuryto person or property in the state, otherthan a cause ofaction for defamation ofcharacter arising from the act, ifhe "(i) regularly does or solicits business, orengages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed orservices rendered, in the state, or (ii) expects orshould reasonably expect the act to have

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

12 of 23 Page 12of23


### [* 12]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

consequences in the state and derives substantial revenue from interstate or international commerce." The acts attributed to Del Roscio by Grosso are expressly excluded as a basis of jurisdiction under CPLR 302 (a) (3). In any event, Grosso also fails to satisfythe other requirements forthe application ofCPLR 302 (a) (3). Del Roscio does not regularly conduct business orsolicit business (on his own account) orderive substantial revenue from good used or consumed or services rendered in NewYork. Del Roscio's business contacts with NewYork are limited to his role as the President ofthe Foundation. The court holds that it does not have personal specificjurisdiction over Del Roscio under CPLR 302 (a). The court rejects Grosso's request to replead his allegations forthe reasons stated above. The court also rejects Grosso's request to conductjurisdictional discovery as Grosso has failed to make a sufficient start to establish that Del Roscio
was engaged in purposeful activity in NewYork State such thatjurisdictional discovery should be ordered. (See Mannooch vAvon Prods., Inc., 2023 NY Slip Op 33355[U] * (Sup Ct, NY Cty] [the court declined to orderjurisdictional discovery as plaintiff "failed to make a sufficient startto establish that defendantwas engaged in purposeful activity in NewYork State such thatjurisdictional discovery should be ordered"].) Mot. Seq. No. 002 In mot. seq. no. 002, defendants CyTwombly Foundation and Baum (Movants) seek a dismissal ofthe complaint pursuant to CPLR 3211 (a) (1), (5) and (7).

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

13 of 23 Page 13of23


### [* 13]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

Grosso's Fraud (Count IV) and Negligent Misrepresentation (CountVII) Claims The Movants assert that Grosso'sfraud and negligent misrepresentation claims, premised on Del Roscio's alleged 2011 promise that the Workwould appear in the Catalogue Raisonne, are time-barred. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 14.) According to the Movants, Grosso'sfraud and negligent misrepresentation claims accrued in 2013 when the Catalogue Raisonne was published withoutthe inclusion ofthe Work, nine years before Grosso initiated this action and are now beyond the period of limitations. 

### (Id. at 15.) On the contrary, Grosso contends that his fraud and negligent misrepresentation claims are timely because the 2013 publication ofthe Catalogue Raisonne did not put him on inquiry notice because he believed that the Catalogue Raisonne could be supplemented in the future. (NYSCEF 93, Grosso's Memo of Law [mot. seq. no. 002] at 12-13.) Grosso claims thatthe catalogue raisonnes forTwombly have been supplemented in the past and it was his understanding that the 2013 Catalogue Raisonnewould be supplemented in the future to include the Work. 

### (Id. at 15.) In the alternative, Grosso claims that he only discovered during the discovery in the Phillips Action that defendants had informed Phillips thatthey "believed in 2011 that the Artwork
was inauthentic." 

### (Id. at 23.) Therefore, Grosso claims that his fraud claim is timely because he only discovered the fraud regarding the certification ofthe Work during the Philips Action. 

### (Id.) An action based upon fraud [or negligent misrepresentation] must be commenced within the greaterofsixyears from the date ofthe fraud [or misrepresentation] orwithin two years from the time plaintiffs discovered, orwith

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

14 of 23 Page 14of23


### [* 14]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

reasonable diligence, could have discovered the fraud [or misrepresentation]. 

### (MB/ Intern. Holdings Inc. vBarclays BankPLC, 151 AD3d 108, 114 [1st Dept 2017], Iv denied, 31 NY3d 902 [2018]; Demian v Calmenson, 156 AD3d 422,423 [1st Dept 2017] [fraud and negligent misrepresentation].) Grosso does not and cannot contest the Movants' assertion that its fraud and negligent misrepresentation claims are subjectto the greater ofthe six-year limitation orthe two-year discovery rule. (NYSCEF 93, Grosso's Memo of Law [mot. seq. no. 002] at 23.) Grosso also does not contest the fact that it knewthat the Catalogue Raisonne was published in 2013 without including the Work. Even ifGrosso believed thatthe Catalogue Raisonne could be supplemented in due course, it was incumbent upon him to exercise reasonable diligence and inquire of the Foundation when the Catalogue Raisonne would be supplemented to include the Work. (See MB/Intern. Holdings Inc., 151 AD3d T 117 [internal citation and quotation omitted] ["[W]here the circumstances are such as to suggest to a person ofordinary intelligence the probabilitythat he [or she] has been defrauded, a duty of inquiry arises, and if he [orshe]

... shuts his [or her] eyes to the facts which call for investigation, knowledge ofthe fraud will be imputed to him [or her]"].) Despite his knowledge ofthe significance of being included in a Catalogue Raisonnefor an artwork's authenticity and consequently marketability, Grosso made no effort to contact the Foundation and inquire about the inclusion ofthe Work in anyforthcoming ofTwombly's forthcoming catalogue raisonnes. Grosso'S alternate argument that he onlydiscovered the fraud regarding the Authentication during the discovery in the Phillips Action is also without merit as actual knowledge offraud is not required to triggerthe limitation period and

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

15 of 23 Page 15of23


### [* 15]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

such period began to run from the time Grosso could have with reasonable diligence discovered the fraud or misrepresentation. The courtfinds that Grosso was on inquiry notice in 2013 when the Catalogue Raisonnewas published without inclusion ofthe Work and his fraud and negligent misrepresentation claims are time-barred. The court does not address the Movants arguments on dismissal ofthe fraud and negligent misrepresentation claims pursuantto 3211 (a) (1) and (7) since the court has already determined that these claims are untimely. Tortious Interferencewith Business Relationships (Count I) Grosso contends that its tortious interference claim arose in 2019 when the "defendants first communicated to Phillips that therewas no doubtthat the Artworkwas fake, and that Grosso knew it." (NYSCEF 93, Grosso's Memo of Law [mot. seq. no. 002] at 14-15.) The Movants contend that Grosso's tortious interference claim is subject to a three-yearstatue of limitations and is time-barred as it accrued in 2013 when the Catalogue Raisonne was published without including the Work. (NYSCEF 12, Movants' Memo ofLaw [September 16, 2022] at 18.) Relying on Thome vAlexander

### & Louisa CalderFoundation, 70 AD3d 88, 108 [1st Dept] [2009]), Movants contend that atortious interference claim arising out ofafoundation's refusal to include awork in a catalogue raisonne accuses when the catalogue raisonne is published even ifthe claim is based entirely on the assertion that defendants' action (or inaction) has a negative effect on subsequent contractual relationships. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 19; NYSCEF 94, Movants' Memo of Law [November21, 2022]

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

16 of 23 Page 16of23


### [* 16]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

at 13-14.) The Movantsfurther contend that Grosso's tortious interference claim is time-barred even if it accrued in 2019 when defendants made the alleged statements to Phillips as a tortious interference claims based on alleged defamation is subjectto a one-yearstatute oflimitations. (NYSCEF 94, Movants' Memo of Law [November21, 2022] at 14.) Fora tortious interference claim, the time to file begins to run when the "defendant performs the action (or inaction) that constitutes the alleged interference. It does not commence anew each time plaintiff is unable to enter into a contract, unless the defendanttakes somefurther step." (Thome, 70 AD3d 88, 108.) The First Department in Thome dismissed plaintiff's tortious inference claim for being time-barred
as the claim accrued when the "Foundation failed to issue the numbersforthe catalogue raisonne, thus purportedly injuring plaintiff in his abilityto sell the Work." (Id.) Grosso's claim fortortious interference arises out ofthe Foundation's failure to include the Work in the Catalogue Raisonne which impaired Grosso's ability to sell the Workto Phillips. The claim first accrued in 2013 when the Catalogue Raisonnewas published without including the Work. The claim did not commence anewwhen Grosso was unableto sell the Workto Phillips; however, the claim did commence anew in 2019 when defendants [Foundation and Baum] allegedly communicated to Phillips that they believed thatWorkwas fake. Movants' reliance on Thome to contend that the cause of action for tortious inference accrues when the catalogue raisonne is published is unavailing as unlike defendants in Thome, defendants here did take "somefurther step." The tortious interference claim accruing in 2019 is premised on defendants' [Foundation and Baum] alleged defamatorystatements to Phillips and is subject to a one-year

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

17 of 23 Page 17of23


### [* 17]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

statute of limitations. (CPLR 215 (3).) As Grosso has asserted this claim in 2022, well beyond the one-year period prescribed by the statute of limitations, it too is barred. Accordingly, the court does not address Movants' arguments seeking its dismissal pursuant to 3211 (a) (1) and (7). Prima Facie Tort (Count Ill) Grosso alleges a prima facie tort claim based on the Foundation acting with "disinterested malevolence and with the sole intentto inflict harm on Mr. Grosso" in "(a) not including the Work in the Catalogue Raisonne, and (b) obtaining and distributing the False Criminal Record." (NYSCEF 38, Complaint

### ,i 99.) The Movants contend that prima facie tort claim accrued in 2013 when the Catalogue Raisonne was published and expired in 2016 as prima facie tort claims are subjectto a three-year statute of limitationsthat runs from the date ofthe alleged tort and are not subject to the discovery rule. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 18.) The claim is dismissed in the absence ofopposition to defendants' statute of limitations argument. Injurious Falsehood (CountV) The Movants contend that Grosso has not adequately pied his injurious falsehood claim against the Foundation and Baum. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 21.) The Movants contend that Grosso has failed to allege the particularfalsehoods uttered by defendants and has only proffered vague allegations thatthe "Defendants made statements to Phillips that led Phillips to wrongly conclude thatthe Work is afake, and which undermined Mr. Grosso's probity, without specifying whatwas said, when, by and to whom." (Id.) To the extent that Grosso's claim for injurious falsehood is based on Baum's July 2019 conversation with Phillips,

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

18 of 23 Page 18of23


### [* 18]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024

the Movants contend thatthis statement is not actionable as Baum had good reason to believe the truth. (Id.) Further, Movants contend these communications do not give rise to individual liability against Baum as he was acting solelywithin the scope of his role as a lawyerforthe Foundation when making these statements. (Id. at 22.) "The elements ofa cause ofaction for injurious falsehood are (1) afalse and misleading statement harmful to the interests ofanother, (2) uttered or published maliciouslyand with intent to harm another, ordone recklessly and without regard to its consequences, and (3) a reasonably prudent person would orshould anticipate that damage to anotherwould naturallyflowtherefrom. In addition, the injured party must plead with specificitythat it suffered special damages as a result ofthe false and disparaging statement." (Fulton QualityFoods LLC vArcon Constr. Group Inc., 2014 NY Slip Op 31618[U] * [Sup Ct, NY Cty].) [internal citation and quotation marks omitted].) An injuriousfalsehood claim must "specifywith particularity the alleged falsehood uttered." (See BCRE230 Riverside LLC vFuchs, 59 AD3d 282, 283 [1st Dept 2009] [internal citation and quotation marks omitted].) The courtfinds that Grosso has failed to plead with particularitythe alleged falsehood uttered by defendants. To the extent that the claim for injurious falsehood is based on Baum's 2019 conversation with Phillips, the defendant and Baum had good
reason to believe that the statements were true and such communication would therefore not be actionable. (See Id. [the court found a failure to plead injurious falsehood as the "plaintiff's representatives had good reason to believe" in the truth of the statement in issue].) Further, Grosso has also failed to plead with particularitythe

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

19 of 23 Page 19of23


### [* 19]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024
special damages incurred as a result ofthe alleged falsehood. Grosso's injurious falsehood claim is dismissed. Product Disparagement (CountVI) The Movants contend that Grosso's product disparagement claim is subjectto a one-year period of limitations and is time barred. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 18.) Grosso does not dispute the Movants' argumentthat the claim for product disparagement is time-barred. Claims for product disparagement are subjectto a one-yearstatute oflimitations. (CPLR 215 [3].) Grosso's claim for product disparagement is based on Baum's 2019 communication to Phillips. (NYSCEF 38, Complaint

# ,m 127-132.) This claim is timebarred and is dismissed pursuantto CPLR 3211 (a) (5). Defamation (Count 11) Grosso's claim for defamation is based on the (i) Foundation's communication (through defendant Baum) to Phillips on September21, 2021 sharing a criminal record which the Foundation believed to be relating to Grosso; and (ii) Baum's deposition testimony in the Phillips Action where he described Grosso as "someone who is fraudulently peddling works," "a dishonest person", "a fraud", and "a criminal". (NYSCEF 38, Complaint

## ,-I,J 77-86.) The Movants move to dismiss Grosso's defamation claim because the claim is barred by absolute litigation privilege as it is based on allegedly defamatorystatements made or produced during non-party discovery in the Phillips Action. (NYSCEF 12, Movants' Memo of Law [September 16, 2022] at 23.) The Movants also claim that Grosso has failed to plead a cause ofaction for its defamation claim as the allegedly

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

20 of 23 Page 20 of23


### [* 20]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024
defamatorystatements in question were not statements offact. (NYSCEF 94, Movants' Memo ofLaw [November 21, 2022] at 19.) Grosso contends that defendants cannot claim immunityfrom liabilityfor defamation because the defamatory statements in question were not 'material and pertinent to the questions involved' and would not be subject to the absolute litigation privilege. (NYSCEF 93, Grosso's Memo of Law [mot. seq. no. 002] at 21.) "Absolute immunityfrom liabilityfor defamation exists for oral and written statements made

....in connection with a proceeding before a courtwhen such words
are material and pertinent to the questions involved. The litigation privilege, being absolute, confers immunityfrom liability regardless of motive." (Gottwald vSebert, 40 NY3d 240, 253.) [internal quotation marks and citation omitted].) The defamatorystatements in question were made in a deposition and in response to a subpoena request and are evidentlystatements made in connection with
a legal proceeding (the Philips Action). Grosso alleges that the statements concerning him were "out ofcontext" and not material and pertinentto the questions involved. The Phillips action involves claims ofbreach ofcontract and fraud arising out ofGrosso's consignment ofthe Work. According to plaintiff, Phillips publicly branded him as having owned and fraudulently consigned a fake artwork." (NYSCEF 38, Complaint

### ,i 73.) Therefore, (1) the authenticity ofthe Work, (2) whether Grosso was aware that it was a fake, (3) defendants' reasons for believing that the Workwas fake, and (4) Grosso knowingly assigned the purportedlyfake Workto Phillips were all issues material and pertinent to the Phillips Action. Defendants' statements about Grosso were therefore

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

21 of 23 Page 21 of23


### [* 21]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024
pertinent and material to the Phillips Action and protected bythe absolute litigation privilege. In any event, the defamatorystatements identified by Grosso convey an opinion and are not statements offact. A statement of "pure opinion" cannotform the basis for
a defamation claim. (See Davis vBoeheim, 24 NY3d 262, 269 ["A defamatory statement offact is in contrastto "pure opinion" which under our laws is not actionable because [e]xpressions ofopinion, as opposed to assertions offact, are deemed privileged and, no matter howoffensive, cannot be the subject ofan action for defamation"] [internal citation and quotation marks omitted].) Grosso's claim for defamation is dismissed pursuantto CPLR 3211 (a) (1) and (7). Accordingly, it is ORDERED that defendants Foundation and Baum's motion to dismiss the complaint is granted; and it is further**ORDER □**  that defendant Del Roscio's motion to dismiss the complaint is granted; and it is further ORDERED that the complaint is dismissed with costs and disbursements to defendants as taxed bythe Clerk and the clerk is directed to enterjudgment accordingly; and it is further

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ET AL Motion No. 002 003

22 of 23 Page 22 of23


### [* 22]NYSCEF DOC. NO. 102 INDEX NO. 155762/2022 RECEIVED NYSCEF: 06/02/2024



### ORDERED that such service upon the Clerk of the Court shall be made in accordancewith the procedures setforth in the Protocolon Courthouse andCountyClerk Procedures forElectronicallyFiledCases 

### (accessible atthe "E-Filing" page on the court's website)].

6/2/2024

DATE ANDREA MASLEY, J.S.C. CHECKONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMITORDER FIDUCIARYAPPOINTMENT

155762/2022 GROSSO, PIER FRANCO vs. CYTWOMBLY FOUNDATION ETAL Motion No. 002 003

23 of 23

### □ OTHER**□** REFERENCE

Page 23 of23


### [* 23]