DocketNumber: 15-cv-3927 (SAS)
Citation Numbers: 166 F. Supp. 3d 388
Judges: Scheindlin
Filed Date: 2/2/2016
Status: Precedential
Modified Date: 7/25/2022
OPINION AND ORDER
I. INTRODUCTION
On May 21, 2015, Stephanie Overton brought this diversity action against various defendants for their alleged participation in an art fraud perpetrated by non-party Timothy Sammons and his affiliated companies. Overton subsequently dismissed some defendants and added others, filing her First Amended Complaint on July 9, 2015. The current defendants in this action are one individual, Andrew Rose, and four corporate entities that Overton alleges are “extensions” of Rose: Art Finance Partners LLC (“AFP”), AF Funding LLC (“AFF”), Knickerbocker Funding LLC (“Knickerbocker”), and Cerulean Art LLC (“Cerulean”) (with Rose, the “defendants” and without Rose, the “corporate defendants”).
There are six artworks at issue, created by Marc Chagall (the “Chagall”), Raoul Dufy (the “Dufy”), Amedeo Modigliani (the “Modigliani”), Henry Moore (the “Moore”), Pablo Picasso (the “Picasso”), and Tom Wesselmann (the ‘Wesselmann”) (the Works”).
On November 16, 2015, the parties filed cross-motions for partial summary judgment.
(A) Declaring that the Chagall, Dufy, Modigliani, Moore, and Wesselmann Works are (i) owned solely by Overton and (ii) are not subject to any liens, encumbrances, or valid title claims by the defendants; and
(B) Awarding Overton compensatory and punitive damages for Rose’s conversion of the Works and her loss of the Picasso due to Rose aiding and abetting torts by Sammons.4
Although Overton does not specify the claims for which summary judgment is sought, she appears to be moving as to liability on her First, Second, Third, Fourth, Fifth, Sixth, and Seventh Claims.
For the following reasons, Overton’s motion is GRANTED in part and DENIED in part, and defendants’ motion is DENIED in full.
II. BACKGROUND
A. Overton’s Relationship with Sam-mons
During their marriage, Overton and her former husband, Sir Arthur Douglas Myers, acquired the following Works:
• Marc Chagall, Revene, gouache on paper, 79 x 58 cm;
• Raoul Dufy, Syracuse or Chateau sur La Cote, watercolor, pencil, and gouache on paper, 48 x 64 cm;
• Amedeo Modigliani, Cariátide Rouge Sur Fond Noir, pencil and gouache on paper, 62 x 42 cm;
• Henry Moore, Reclining Figure, bronze, 9 x 15 x 7 cm;
• Pablo Picasso, Buste de Femme or Tete de Femme or Buste en Femme, oil on canvas, 33 x 24 cm; and
• Tom Wesselmann, Collage for Study for the Mouth, no. 10, Liquitex on paper on board, 40 x 38 cm.
When their marriage ended in the 1980s, Overton received sole title to the Works.
In 2007 or 2008, Overton contemplated selling some of her artwork, and was referred to Timothy Sammons, an individual who operated United Kingdom-based Timothy Sammons Ltd. (“Sammons UK”) and Timothy Sammons Fine Art Agents (“TSFAA UK”) and New York-based Timothy Sammons, Inc. (“TSI NY”).
1. The Modigliani
In 2008, Overton delivered the Modigliani to Sammons, along with other artworks not at issue in this case.
2. The Dufy, Moore, and Wesselmann
Overton delivered the Moore to Sam-mons in July 2013,
Overton states that she delivered the Moore to Sammons UK (in London),
The following year, Overton also delivered the Chagall and Picasso to Sam-mons.
4. Recording of Overton’s Consignments to Sammons
During depositions, Overton testified that she “[did not] think she ... ever publicized” the fact that Sammons was holding her artwork, explaining that she chose not to “publicize her private life.”
B. Relationship Among the Defendants
Rose, whose former employers have included the Christie’s and Sotheby’s auction houses, is the sole member of each corporate defendant.
During depositions, Rose testified that Cerulean allows AFP to act as its agent for acquiring art, and that Cerulean is named as a loss payee on AFP’s insurance policy.
C. Relevant Transactions Involving Defendants and Sammons
Rose testified that he first encountered Sammons when he worked in the auction
1. Defendants’ Purchases of the Dufy, Moore, and Wesselmann
On approximately February 5, 2014, Rose and Sammons executed a bill of sale for five artworks — including the Dufy and Wesselmann — which reflected that the seller of these Works was TSFAA UK, reachable at TSI NY’s address.
Rose testified that his pre-transaction due diligence regarding Sammons’ ownership of the Dufy and Wesselmann involved: “checking] the UCC websites to be sure there were no liens against them,” “Googl[ing],” “checking] the Catalogue Raisonné”
Several days later, on approximately February 10, 2014, Rose and Sammons executed a bill of sale for the Moore, which similarly included representations regarding Sammons’ ability to transfer good title, provided that the seller was TSFAA UK, reachable at TSI NY’s address, and was accompanied by a separate agreement providing Sammons with the right to repur
2. Defendants’ Acceptance of the Modigliani, Chagall, and Picasso as Collateral
a. The Modigliani Loan
In July 2014, Knickerbocker entered into a loan agreement with TSI NY and Sammons.
Rose testified that, in connection with the signing of this loan agreement, Sam-mons “told [him] that he owned” the Modigliani.
b. The Picasso and Chagall Loan
On December 3, 2014, Knickerbocker entered into another loan agreement with TSI NY and Sammons.
Like the Modigliani agreement, this agreement provided that “the Borrowers” — defined as TSI NY and Sammons individually — furnished the collateral “free and clear of any lien, security interest, charge or encumbrance or interest of any other person (including, without limitation,
3. Sammons’ Sale of the Picasso to Skarstedt
On February 12, 2015, Rose emailed AFP’s warehouse requesting that it be kept open after hours, at Sammons’ expense, so that a representative from Skar-stedt Gallery could examine the Picasso.
On February 19, 2015, Skarstedt purchased the Picasso from Sammons for $1,600,000, wiring $1,550,000 of its payment to AFP on February 20, 2015.
4. Sammons’ Sale of the Chagall to Rose
On February 20, 2015, Rose and Sam-mons executed a bill of sale for the Chagall, designating a purchase price of $600,000 with no sales tax due.
D. Sammons Investigation
Rose first learned of a criminal investigation of Sammons on January 30, 2015, when AFP received a grand jury subpoena.
Summary judgment is appropriate where, “viewing the record in the light most favorable to the non-moving party ... ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact.”
“ ‘The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.’ ”
IV. APPLICABLE LAW
A. The Merchant Entrustment Rule
1. Generally
“Sales of artwork are governed by [New York’s version of] the Uniform Commercial Code [ (“UCC”) ], which provides that a purchaser generally acquires only the title which a seller had.”
This is codified in Section 2-403(2) of the UCC, which provides that “[a]ny entrusting of ... goods to a merchant who deals in goods of that kind gives [the merchant] power to transfer all rights of the entrustor to a buyer in the ordinary course of business.”
The purpose of the merchant en-trustment rule is to “ ‘enhance the reliability of commercial sales by merchants who deal in the kind of goods sold by shifting the risk of resale to one who leaves his property with [a] merchant.’ ”
2. UCC Definitions of “Merchant” and “Buyer in the Ordinary Course of Business”
The UCC defines “merchant” as:
a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.95
Further, the UCC defines “buyer in the ordinary course of business” as “a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind.”
3. Heightened Duty of Merchant-Purchasers
Although the UCC generally defines “good faith” as “honesty in fact in the transaction or conduct concerned,”
Given their knowledge of the practices of their trade, merchants or dealers, when acting as purchasers, are held to this ‘heightened standard’ of commercial reasonableness in part to prevent them from shielding their purchase of stolen or misappropriated goods behind the assertion that they acted in good faith.101
Accordingly, in applying the merchant entrustment rule, “New York courts have held that ... a merchant purchaser may have a duty to inquire into the provenance or ownership of the merchandise [being sold] where there are ‘warning signs’ or ‘red flags’ indicating problems with the sale.”
(1) whether the sale price is obviously below market, (2) whether the negotiations or procedure of the sale differed from previous transactions between buyer and seller, (3) whether the buyer was aware of the seller’s financial difficulties, or (4) whether the buyer would have reason to doubt the seller’s ownership of the artwork.104
C. Rights of Creditors to Consigned Goods
“The law of consignments is governed by the ... UCC.”
“Consignment” means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale; and ... the merchant: (i) deals in goods of that kind under a name other than the name of the person making delivery; (ii) is not an auctioneer; and (iii) is not generally known by its creditors to be substantially engaged in selling the goods of others.108
“[I]n the Second Circuit, the burden of proof falls on the party claiming applicability of § 9-102(a)(20) to show that each element of the definition is satisfied.”
D. Conversion
Under New York law, “‘[a] conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.’ ”
E. Aiding and Abetting Fraud and Breach of Fiduciary Duty
To prevail on a claim for aiding and abetting fraud, a plaintiff must prove: “(1) the existence of an underlying fraud; (2) knowledge of this fraud on the part of the aider and abettor; and (3) substantial assistance by the aider and abettor in achievement of the fraud.”
Relatedly, the elements of a New York state law claim for aiding and abetting a breach of fiduciary duty are: “ ‘(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.’ ”
F. Unjust Enrichment
“The basic elements of an unjust enrichment claim in New York require proof that (1) defendant was enriched, (2) at plaintiffs expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover.”
Under Delaware law,
[Wjhether the corporation was adequately capitalized for the corporate undertaking; whether the corporation was solvent; whether dividends were paid, corporate records kept, officers and directors functioned properly, and other corporate formalities were observed; whether the dominant shareholder siphoned corporate funds; and whether, in general, the corporation simply functioned as a facade for the dominant shareholder.130
With respect to the second requirement, the “injustice must consist of more than merely the tort or breach of contract that is the basis of the plaintiffs lawsuit.”
y. DISCUSSION
A. Overton’s Motion
1. Declaratory Judgment Regarding the Chagall, Dufy, Moore, and Wesselmann
Overton seeks a declaratory judgment that the Chagall, Dufy, Moore, and Wes-selmann are “owned solely by Overton.”
a. A Fact Dispute Exists as to Whether the Chagall and Moore Were Entrusted to TSI NY
With respect to the Chagall and Moore only — which Overton maintains were delivered to Sammons UK and/or TSFAA UK in London — Overton argues that the merchant entrustment rule cannot protect Cerulean’s purchases because she did not entrust these Works to their seller, TSI NY.
While TSI NY (and subsequently, Cerulean) could not have acquired good title to converted works,
Moreover, the record contains evidence — applicable to one or both Works— that could support the conclusion that the transfer of the Chagall and Moore to TSI NY was not a conversion. This evidence includes: Overton’s consignment agreement, which covers “Timothy Sammons Inc. and any affiliated company”
Regarding the Chagall, Dufy, Moore, and Wesselmann, Overton also argues that defendants cannot benefit from the merchant entrustment rule because they were not buyers in the ordinary course of business. Although this issue is an affirmative defense for which defendants bear the burden of proof at trial,
i. UCC Section l-201(b)(9)
Overton first contends that defendants “cannot rely on [the merchant entrustment rule] as a basis for obtaining the Works addressed in this Section” because defendants acquired them ‘“in total or partial satisfaction of a money debt.’ ”
In advancing their respective positions, each side selectively cites helpful portions of the record. To characterize defendants as lenders, Overton argues that defendants (1) did not pay sales tax on the relevant transactions; (2) in purchasing six works for $510,000, paid approximately forty percent of the $1,250,000 value “ascribed by Sammons” in pre-purchase emails to defendants, which falls within Rose’s described loan-to-value ratio; (3) identified the Moore as “collateral” in an email to a sub-lender; and (4) acquired the Chagall in satisfaction of a loan that had been extended to Sammons.
Defendants offer competing evidence and arguments against Overton’s characterization. First, as to their non-payment of sales tax, defendants explain that the Works were to be delivered in Delaware, a tax-free state — an explanation that is supported by record evidence including that the purported buyer, Cerulean, is incorporated in Delaware and that its principal, Rose, maintains a residence in the state.
Second, defendants contend that Over-ton’s argument that the purchase price comports with Rose’s typical loan-to-value ratio is a red herring because it is based on Sammons’ “wish” price for each piece, not actual appraisal values.
Third, defendants assert that the email reference to “collateral” was “quick and easy nomenclature for'Mr. Rose to use in the context of speaking with a lender about [a] potential loan against a different piece,”
The record also contains.other evidence which could support the conclusion that defendants did not acquire these four Works in a lending capacity, including that these acquisitions were memorialized by bills of sale — which are markedly different from the loan agreements that are also in the record.
ii. Red Flags
Alternatively, Overton argues that defendants were not buyers in the ordinary course because, as art merchants, they disregarded warning signs about the defects in Sammons’ sales and thus, failed to meet their heightened duty of good faith.
Defendants respond that they neither qualify as merchants under the UCC nor encountered warning signs that would have required further investigation into the validity of Sammons’ sales. Even assuming that defendants do qualify as merchants — thus triggering a heightened duty of good faith — summary judgment is inappropriate because, properly viewing the evidence in favor of the non-moving party, a reasonable juror could conclude that defendants nevertheless met that duty.
First, the purchase prices cannot be considered red flags at this stage because the record does not contain sufficient evidence of the Works’ true market value. While this factor can serve as a “critically important red flag,”
Second, there is a genuine factual dispute as to whether such agreements “were unusual with respect to ordinary dealings in the art business and [defendants’] prior dealings with [Sammons].”
Third, a reasonable juror could find that defendants did not know that Sammons was acting as Overton’s agent in connection with the Works. Although Overton again attempts, inter alia, to analogize to Davis, that case is distinguishable because defendants in Davis had not obtained any representations from the seller regarding his authority to sell.
Fourth, it is not beyond dispute that defendants knew about Sammons’ financial difficulties. Overton cites to emails in which Sammons expresses time-sensitive needs for liquidity, but defendants aver that they perceived those communications as being “consistent with dealers who often buy work for their account, only to turn and sell it to another party at a profit[,] ... [a] type of activity [that] requires cash which a dealer may not have until' the second part of the transaction is consummated.”
b. Declaratory Judgment Regarding the Modigliani
Overton also seeks a declaratory judgment that she owns the Modigliani free and clear of any liens or encumbrances by defendants. Unlike the Works just discussed, defendants do not claim to have purchased the Modigliani. Rather, they maintain that, due to the loan agreement between Knickerbocker and Sam-mons, Section 9-319(a) of the UCC gives Knickerbocker a security interest that is superior to Overton’s claim to the Work.
The determination of whether Knickerbocker has priority depends on whether Overton’s transfer of the Modigliani to Sammons constituted a consignment under Section 9-102(a)(20). In order for the transfer to qualify as a consignment, the UCC requires, inter alia, that Sammons not have been “generally known by its creditors to be substantially engaged in selling the goods of others.”
Accordingly, Overton argues that the transfer was not a Section 9-102(a)(20) consignment because Sammons’ creditors, including defendants, knew that Sammons’ business was “one of agency”
TSFAA was founded to address a growing demand among sellers of art for truly impartial advice and representations in their dealings with auction hous*410 es, private treaty sales, and tax authorities. Having worked primarily with the owners and sellers of art, the company has expanded to provide similarly impartial advice to buyers.180
Such undisputed facts suggest that Sam-mons was known within the art world— even to those who did not know him well— as someone who transacted as a fíne art agent. Thus, it stands to reason that fíne art creditors would be aware of the nature of Sammons’ business.
Defendants do not offer any evidence that would place this conclusion in dispute. Rather, they deny “that they believed Sammons acted only as an agent or was substantially engaged in selling the goods of others,” cite “a case where Sammons bought for his own account,”
2. Claims for Damages
a. Conversion
Overton also seeks summary judgment on her conversion claim as it relates to the Chagall, Dufy, Modigliani, Moore, and Wesselmann.
b. Aiding and Abetting Breach of Fiduciary Duty and Fraud
Overton also includes a cursory request to hold defendants’ liable for aiding and abetting Sammons’ torts against her. The parties do not appear to dispute the existence of the underlying torts — ie., that Sammons committed a fraud against, and breached his fiduciary duty to, Over-ton. The only relevant issue is whether defendants’ actions constituted unlawful aiding and abetting of these actions. To do so, defendants must have (1) known of Sammons’ breaches and (2) provided substantial assistance to his misconduct.
As to the first prong, defendants’ knowledge of Sammons’ breaches may be the most fundamental disagreement in this case. As discussed earlier in Section V(A)(l)(b)(ii), Overton argues that defendants were aware that Sammons lacked authority to sell the Works, whereas defendants contend that they had no reason — ie., “red flags” — to suspect that Sammons was peddling works to which he lacked good title.
Further, with respect to the second prong, Overton cites only to the fact that defendants required “a warehouse to stay open late so that a dealer could — and did— purchase Overton’s Picasso at an unreasonably low price [which was] just enough to pay off the loan [Sammons owed] to Defendants so that they would release the Picasso to the buyer.”
3. Alter Ego Liability
Overton also urges that Rose and the corporaté defendants be held liable, as alter egos, for one another’s conduct. Piercing the corporate veil is a fact-intensive inquiry, requiring both that the corporate defendants operated as a single economic entity and that there be an overall element of injustice.
With respect to the single economic entity requirement, Overton cites, inter alia, to the facts that Rose is the sole member
Even assuming that defendants do function as a single economic entity, Overton offers very little to prove overall injustice. For the most part, she conflates this second requirement with the first. She also improperly suggests that the misconduct alleged in this case may, without more, serve as the requisite evidence of unfairness.
B. Defendants’ Motion
1. Claims Relating Only to the Picasso
Overton brings four Picasso-related claims against defendants, seeking damages for conversion (Second Claim), aiding and abetting breach of fiduciary duty (Third Claim), aiding and abetting fraud (Fourth Claim), and unjust enrichment (Eighth Claim).
Defendants seek summary judgment in their favor on all Picasso-related claims, arguing that “Plaintiff seeks damages based upon her purported inability to recover the Picasso from [a] third-party” and that “there is no direct causal connection between the Defendants’ alleged conduct and this loss.”
Defendants argue that they cannot be liable for conversion because Over-ton has not alleged, let alone proven, that the Picasso was harmed during the few months' that it was held by AFP. Overton responds that defendants have distorted her requested relief, as she is not seeking recovery for the period during which the Picasso was in AFP’s custody. Rather, Overton explains, she aims to hold defendants jointly and severally liable for the damages resulting from “the wrongful taking, detention, and subsequent transfer of the Picasso (from Skarstedt) to a good faith purchaser.”
Overton correctly asserts that joint and several liability is available, as a matter of law, for intentional torts such as conversion.
b. Aiding and Abetting Breach of Fiduciary Duty and Fraud
Defendants’ sole argument against the aiding and abetting claims is that they cannot be liable because they “did not proximately cause the damages Plaintiff allegedly suffered due to the Skarstedt sale[] of the Picasso.”
2. Unjust Enrichment Claim
Defendants also argue that they cannot be liable for unjust enrichment with respect to any of the six Works because they have no direct substantive relationship with Overton. I note that a claim for unjust enrichment does not require contractual privity or other direct dealings between the parties. Rather, there simply must be “a relationship or connection between the parties that is not too attenuated.”
Alternatively, with respect to the Picasso only, defendants argue that this claim must be dismissed because no reasonable juror could find that they were unjustly enriched at Overton’s expense. In so arguing, defendants maintain that their sole financial benefit from the Picasso sale was the repayment of their loan to Sammons— ie., money that they were owed. Overton, however, proffers facts that contradict defendants’ characterization, including that “of the $2,000,000 that Sammons was ... purportedly ‘loaned,’ only $789,000 was wired directly to Sammons” (with the remainder retained by defendants for, inter alia, “prepaid interest,” “fees,” and “expenses”).
VI. CONCLUSION
For the foregoing reasons, Overton’s motion is GRANTED in part and DENIED in part, and defendants’ motion is DENIED in full. The Clerk of the Court is directed to close these motions (Dkt. Nos. 64 and 69). A conference is scheduled for February 10, 2016 at 3:30 PM, and trial will commence on March 1, 2016.
SO ORDERED:
. First Amended Complaint at 11. Accord Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment ("PI. Mem.") at 22.
. The original and First Amended Complaints also contain allegations relating to works by Lucio Fontana (the "Fontana”) and Rene Magritte (the "Magritte”). No Magritte-related claims were ever asserted against defendants, and Overton has dismissed all Fontana-related claims. Since September 2015, the Chagall, Dufy, Modigliani, and Wesselmann have been in the custody of law enforcement, in connection with an ongoing criminal investigation.
. Although certain of Overton's claims are asserted against one defendant only, the five defendants submitted joint briefing.
. PL Mem. at 3.
. Overton does not make any arguments regarding her Eighth Claim for unjust enrichment.
. The following facts are drawn from the parties’ Rule 56.1 Statements and responses, as well as from other supporting documentation submitted in connection with the summary judgment briefing. Additional facts are described, as relevant, .in the discussion section of this Opinion.
. See Plaintiff's Rule 56.1 Statement of Material Facts in Support of Plaintiff’s Motion for Summary Judgment ("PI. 56.1”) ¶¶ 1-2.
. See id. ¶ 3.
. See id. ¶¶ 4-5; Declaration of Stephanie Overton ("Overton Dec!.”) ¶ 5.
. 2/5/08 Letter from Sammons to Overton ("2/5/08 Sammons-Overton Letter”), Ex. B to Overton Decl., at 2, 4. Accord Pl. 56.1 ¶¶ 6-7.
. SeePl. 56.1 ¶8.
. See id.; Defendants' Joint Responses to Plaintiffs Rule 56.1 Statement (“Defs. Responses to Pl. 56.1”) ¶ 8.
. Pl. 56.1 ¶ 8 (quoting 4/4/08 Letter from Sammons to Overton ("4/4/08 Sammons-Overton Letter”), Ex. B to Overton Decl., at 6).
. See 4/4/08 Sammons-Overton Letter at 5.
. See Pl. 56.1 ¶ 10; 7/18/13 TSFAA UK Receipt, Ex. B to Overton Decl., at 12.
. See Pl. 56.1 ¶ 10; 8/21/13 TSFAA UK Shipping Invoice, Ex. F to Declaration of Defendants' Attorney, Christopher Greeley ("Greeley Decl.”), at 394.
. See Pl. 56.1 ¶ 10; Defs. Responses to Pl. 56.1 ¶ 10 (citing 11/22/13 Agreement Between Stephanie Overton and Timothy Sammons ("11/22/13 Overton-TSFAA UK Agreement”), Ex. B to Overton Decl., at 8-9).
. See Pl. 56.1 ¶ 10; Overton Decl. ¶ 13.
. See 7/18/13 TSFAA UK Receipt at 12.
. See 8/21/13 TSFAA UK Shipping Invoice, Ex. F to Greeley Decl., at 394.
. See Plaintiff's Response to Defendants’ Rule 56.1 Statement ("Pl. Response to Defs. 56.1”) ¶ 12.
. 11/22/13 Overton-TSFAA UK Agreement at 8-9. Overton's November 16, 2015 declaration describes this document as her consignment agreement with Sammons as to the Chagall, Dufy, and Wesselmann — an assertion that defendants do not seem to dispute. See Overton Decl. at 3. However, the executed signature page of this agreement is dated April 29, 2014 (rather than November 22, 2013). See 11/22/13 Overton-TSFAA UK Agreement at 10. Given that neither party has identified or provided an explanation for this discrepancy, the Court disregards the April 29, 2014 signature page for purposes of this Opinion.
. See Pl. 56.1 V 11; Overton Decl. ¶¶ 15-16.
. See Pl. 56.1 ¶ 11; Overton Decl. ¶¶ 15-16.
. See 12/2/14 TSFAA UK Receipt, Ex. B to Overton Decl., at 13.
. 6/18/15 Deposition of Stephanie Overton, Ex. L to Greeley Decl., at 105:9-10, 105:18.
. Id. at 105:8. Accord id. at 104:17-106:2.
. See Pl. 56.1 ¶¶ 41, 46-47.
. See Defendants’ Joint Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Opp. Mem.”) at 22.
. See Pl. 56.1 ¶ 187.
. See id. ¶ 196.
. See 6/10/15 Deposition of Andrew Rose ("6/10/15 Rose Dep.”), Ex. C to Declaration of Plaintiff’s Attorney, John Cahill (“Cahill Decl.”), at 20:9-10, 31:14-32:6.
. Id. at 39:4-11.
. See id. at 33:7-21.
. See id. at 50:17-51:3.
. Id. at 140:12-14.
. Id. at 48:19-21.
. See id. at 92:9-11.
. See PI. 56.1 ¶ 18. See also 2/5/14 Bill of Sale from TSFAA UK to AFP LLC as Agent ("2/5/14 Bill of Sale”), Ex. F to Cahill Dec!., at 3.
. See PL 56.1 ¶ 18.
. See id. ¶¶ 19-24.
. Defs. Response to Pi. 56.1 ¶ 23.
. See id. ¶¶ 19-24; PL 56.1 ¶¶ 19-24.
. See Pl. 56.1 ¶ 24; Defs. Response to PL 56.1 ¶ 24.
. The website of the International Foundation for Art Research ("IFAR”) explains that “[Catalogues raisonnés — scholarly compilations of an artist’s body of work — are critical tools for researching the provenance and attribution of artwork.” IFAR, Catalogues Rai-sonnés, https://www.ifar.orgAat_rais.php. Additionally, the website provides the following background about the organization:
IFAR was established in 1969 to fill a need for an impartial and scholarly body to educate the public about problems and issues in the art world and to research the attribution and authenticity of works of art. In the 1970s, IFAR's purview expanded to include art theft and looting. ... In 1991, the IFAR helped create the "Art Loss Register” ... [and now] works closely with the [Art Loss Register] to prepare the "Stolen Art Alert” section of the IFAR Journal. IFAR, About IFAR, https://www.ifar.org/about.php.
. 6/10/15 Rose Dep., Ex. N to Greeley Decl., at 215:3-216:14.
. Id. at 216:2-4, 216:21-22.
. See Pl. 56.1 ¶ 25; 2/10/14 Bill of Sale from TSFAA UK to AFP LLC as Agent ("2/10/14 Bill of Sale”), Ex. F to Cahill Decl.
. See Pl. 56.1 ¶ 27; Defs. Response to Pl. 56.1 ¶¶ 20, 26, 29.
. Pl. 56.1 ¶ 28 (quoting 2/10/14 Bill of Sale at 6).
. See Defs. Response to Pl. 56.1 ¶ 28.
. See id. ¶ 151.
. See id.) Pl. 56.1 ¶¶ 131, 146, 150.
. 7/1/14 Loan and Security Agreement, Ex. M to Cahill Decl., at 4.
.See Pl. 56.1 ¶ 154.
. 9/16/15 Deposition of Andrew Rose, Ex. O to Greeley Decl., at 70:14-18.
. Id. at 82:11-15.
. See Defendants’ Joint Statement of Undisputed Facts in Support of Its Motion for Partial Summary Judgment ("Defs. 56.1”) ¶ 1.
. See id. ¶ 2.
. See Pl. Response to Defs. 56.1 ¶ 1; Plaintiff's Rule 56.1 Statement of Additional Material Facts ("Pl. Supp. 56.1”) ¶¶ 100-101; 12/8/14 Net Loan Proceeds Schedule Between AFP and Timothy Sammons ("12/8/14 Net Loan Proceeds Schedule”), Ex. L to Cahill Decl., at 6.
. 12/3/14 Loan and Security Agreement, Ex. L to Cahill Decl., at 4.
. See PL 56.1 ¶ 171; Defs. 56.1 ¶ 4.
. See PI. 56.1 ¶ 181.
. See 1/15/15 Email from "bona@skarstedt. com” to "timothy@timothy-sammons.co.uk,” Ex. D to 12/16/15 Declaration of Andrew Rose (“12/16/15 Rose Decl.”).
. See PL 56.1 ¶ 182; Defs. 56.1 ¶ 6.
. . See Defs. Responses to PL 56.1 ¶ 182.
. Pl. Supp. 56.1 ¶61.
. See Defs. 56.1 ¶ 10.
. See id. ¶ 12.
. See PL 56.1 ¶ 93; Defs. Response to PL 56.1 ¶ 94 (citing 2/20/15 Bill of Sale from TSFAA UK to AFP LLC as Agent ("2/20/15 Bill of Sale”), Ex. L to Cahill Decl., at 7).
. 2/20/15 Bill of Sale at 7.
. PL 56.1 II94 (quoting 2/25/15 Bank of America Receipt, Ex. L to Cahill Decl., at 9).
. See id. ¶ 96; Defs. Response to Pl. 56.1 ¶ 96.
. See Pl. 56.1V 108.
. See Defs. Response to Pl. 56.1 V108; Thomas C. Danzinger & Georges G. Lederman, "New York DA Launches Secret Art Sales Tax Investigation,” ArtNet News, Jan. 22, 2015 ("1/22/15 ArtNet News Article”), Ex. B to Greeley Decl.
. See PL 56.1 ¶¶ 86, 143.
. Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir.2015) (quoting Fed. R. Civ. P. 56(a)) (quotation marks and citation omitted).
. Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir.2015) (quotation marks and citation omitted).
. Windsor v. United States, 699 F.3d 169, 192 (2d Cir.2012), aff’d, — U.S. —, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (quotation marks, citation, and alterations omitted).
. Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
. Robinson, 781 F.3d at 44 (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011)).
. Chen v. New Trend Apparel, 8 F.Supp.3d 406, 430 (S.D.N.Y.2014) (citing Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (further citations omitted)).
. Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir.2015) (quoting Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.2010)).
. Crawford, 758 F.3d at 486 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
. "[BJecause this is a diversity action,” the Court applies the law of "the forum in which [it] sits” — here, New York. Ash v. Richards, 572 Fed.Appx. 52, 53 (2d Cir.2014). Further, the parties appear to concede the applicability of the UCC and other New York law throughout their briefs. See Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir.2000) (holding that parties’ briefing, which assumed the applicability of New York law, constituted implied consent to New York law) (quotation marks and citation omitted).
. Dorothy G. Bender Found., Inc. v. Carroll, 40 Misc.3d 1231(A), 975 N.Y.S.2d 708, 2013 WL 4487458 at *6 (Sup.Ct.N.Y.Cty.2013) (citing N.Y. U.C.C. § 2-403(1)).
. See, e.g., Bakalar v. Vavra, 619 F.3d 136, 140 (2d Cir.2010).
. Zaretsky v. William Goldberg Diamond Corp., 69 F.Supp.3d 386, 389-90 (S.D.N.Y.2014) (quoting Interested Lloyd’s Underwriters v. Larry Ross, No. 04 Civ. 4381, 2005 WL 2840330, at *5 (S.D.N.Y. Oct. 28, 2005)) (emphasis added).
. "Merchant” and “buyer in the ordinary course of business” are terms of art used within the UCC. The definitions of these terms are discussed infra at Section IV(A)(2).
. N.Y. U.C.C. § 2-403(3). Accord Graffman v. Espel, No. 96 Civ. 8247, 1998 WL 55371, at *3 (S.D.N.Y. Feb. 11, 1998) ("Even where an agent has violated [a principal's] instructions, Section 2-403 may operate to bind the principal such that the purchaser acquires good title from the principal’s agent.”) aff’d sub nom. Graffman v. Doe, 201 F.3d 431 (2d Cir.1999).
. Id. § 2-403(1).
. Zaretsky, 69 F.Supp.3d at 389 (quoting Graffman, 1998 WL 55371, at *3).
. N.Y. U.C.C. § 2-104(9).
. Zaretsky, 69 F.Supp.3d at 390 (alteration in original) (quoting Porter v. Wertz, 53 N.Y.2d 696, 698, 439 N.Y.S.2d 105, 421 N.E.2d 500 (1981)).
. N.Y. U.C.C. § 2-104(1).
. Id. § 2-104(9).
. Id. § 1 — 201 (b)(9).
. Chen, 8 F.Supp.3d at 453.
. N.Y. U.C.C. § 1 — 201(b)(20).
. Id. § 2-103(l)(b). Accord Dorothy G. Bender, 975 N.Y.S.2d at *6.
. Dorothy G. Bender, 975 N.Y.S.2d at *6. Accord Davis v. Carroll, 937 F.Supp.2d 390, 423 (S.D.N.Y.2013) (“Merchants are thus held to a higher standard of good faith.’”) (quoting Brown v. Mitchell-Innes & Nash, Inc., No. 06 Civ. 7871, 2009 WL 1108526, at *5 (S.D.N.Y. Apr. 24, 2009)) (further quotation marks omitted).
. Dorothy G. Bender, 975 N.Y.S.2d at *7 (citing Davis, 937 F.Supp.2d at 423; Carroll v. Baker, 889 F.Supp.2d 593, 604 (S.D.N.Y. 2012)) (further citations omitted).
. Id. Accord Davis, 937 F.Supp.2d at 423 (explaining that permitting “ commercial indifference to ownership or the right to sell ... facilitates traffic in stolen works of art’ ”) (quoting Porter v. Wertz, 68 A.D.2d 141, 416 N.Y.S.2d 254, 257 (1st Dep’t 1979)).
. Davis, 937 F.Supp.2d at 425-26 (citing Baker, 889 F.Supp.2d at 604). Accord Kozar v. Christie’s, Inc., 31 Misc.3d 1228(A), 929 N.Y.S.2d 200, 2011 WL 1886585 at *8 (Sup.Ct.Westchester Co. May 18, 2011) (“While the precise parameters of the obligation owed by a dealer in art have not been fully defined, it appears to be generally accepted that, as a minimum requirement, a merchant dealing in art work would be under a duty to make a further inquiry as to a painting’s ownership in the event there are suspicious circumstances underlying the transaction, such as a bargain basement price.”) (citation omitted).
. In re Morgansen’s LTD, 302 B.R. 784, 787 (E.D.N.Y.2003).
. See N.Y. U.C.C. § 9-319.
. In re Salander-O’Reilly Galleries, LLC, 475 B.R. 9, 24 (S.D.N.Y.2012).
. N.Y. U.C.C. § 9-102(a)(20).
. In re Salander-O’Reilly Galleries, LLC, 506 B.R. 600, 608-09 (S.D.N.Y.2014).
. In re Morgansen’s, 302 B.R. at 787 n. 4 (quoting In re Valley Media, Inc., 279 B.R. 105, 121 (D.Del.2002)).
. Okyere v. Palisades Collection, LLC, 961 F.Supp.2d 522, 534 (S.D.N.Y.2013) (quoting Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006)).
. Wells Fargo Bank, N.A. v. National Gasoline, Inc., 577 Fed.Appx. 58, 59 (2d Cir.2014).
. Id. at 60 (further quotation marks and citations omitted).
. PG 1044 Madison Assocs. v. Sirene One, L.L.C., 369 F.Supp.2d 512, 517 (S.D.N.Y.2005).
. Ritchie Capital Mgmt., L.L.C. v. General Elec. Capital Corp., 121 F.Supp.3d 321, 338 (S.D.N.Y.2015) (quotation marks and citation omitted).
. Id. (alterations in original) (quoting JP Morgan Chase Bank v. Winnick, 406 F.Supp.2d 247, 256 (S.D.N.Y.2005)) (further citation omitted).
. Id. (emphasis in original) (quoting In re WorldCom, Inc. Secs. Litig., 382 F.Supp.2d 549, 560-61 (S.D.N.Y.2005)) (further quotation marks omitted). Accord IP Morgan Chase, 406 F.Supp.2d at 256 (“Essentially, [t]he substantial assistance element has been construed as a causation concept, requiring that the ... acts of the aider and abettor [have] proximately caused the harm upon which the primary liability is predicated.”) (alteration in original) '(quotation marks and citation omitted).
. McDaniel v. Bear Stearns & Co., 196 F.Supp.2d 343, 353 (S.D.N.Y.2003).
. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 294 (2d Cir.2006) (quoting Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 169 (1st Dep’t 2003)) (further citations omitted).
. Id. (alteration in original) (quoting Kaufman, 760 N.Y.S.2d at 170).
. In re Agape Litig., 681 F.Supp.2d 352, 366-67 (E.D.N.Y.2010).
. Grynberg v. ENI, 503 Fed.Appx. 42, 44 (2d Cir.2012) (quotation marks and citation omitted).
. In re LIBOR-Based Fin. Instruments Antitrust Litig., 935 F.Supp.2d 666, 737 (S.D.N.Y.2013). Accord Grynberg, 503 Fed.Appx. at 44 (affirming grant of summary judgment where “[t]he district court determined that [plaintiff’s] claim failed because he could not show any relationship, or even any communication, between himself and [defendant]”).
. Cohen v. BMW Invs. L.P., No. 15 Civ. 3154, 144 F.Supp.3d 492, 501, 2015 WL 6619958, at *7 (S.D.N.Y. Oct. 30, 2015) (quoting Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 (2012)).
. Chen, 8 F.Supp.3d at 465 (citing Georgia Malone, 19 N.Y.3d at 517, 950 N.Y.S.2d 333, 973 N.E.2d 743).
. "It is well-settled that New York’s choice-of-law rules dictate that the law of the state of incorporation determines when the corporate form will be disregarded.” Jonas v. Estate of Leven, 116 F.Supp.3d 314, 330 (S.D.N.Y. 2015) (collecting cases) (quotation marks and further citations omitted).
. De Sole v. Knoedler Gallery, LLC, 139 F.Supp.3d 618, 665, 2015 WL 5918458, at *37 (S.D.N.Y.2015) (quotation marks and citation omitted).
. Id. (alterations in original) (quotations marks and citation omitted).
. Id. (quotation marks and citation omitted).
. Id. at 665, at *38 (quotation marks and citation omitted).
. NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 183 (2d Cir.2008).
. Dumont v. Litton Loan Servicing, No. 12 Civ. 2677, 2014 WL 815244, at *21 (S.D.N.Y. Mar. 3, 2014).
. Stahlex-Interhandel Trustee v. Western Union Fin. Servs. E. Europe Ltd., No. 99 Civ. 2246, 2002 WL 31359011, at *5 (S.D.N.Y. Oct. 21, 2002) (quoting American Protein Corp. v. AB Volvo, 844 F.2d 56, 59 (2d Cir.1988)) (further citation omitted).
. Pl. Mem. at 3.
. See N.Y. U.C.C. § 2-403.
. See Pl. Mem. at 6.
. Id. at 6-7.
. See, e.g., Bakalar, 619 F.3d at 140. See also Kozar v. Christie’s Inc., 109 A.D.3d 967, 971 N.Y.S.2d 555, 557 (2d Dep’t 2013) (holding that UCC § 2-403(2) applies only to purchases from "the merchant to whom the property was entrusted") (quotation marks and citation omitted).
. See Pl. 56.1 ¶¶ 10-11.
. See Defs. Responses to Pl. 56.1 ¶¶ 10-11.
. See Pl. 56.1 ¶¶ 10-11; 11/22/13 Overton-TSFAA UK Agreement at 8-14.
. Pl. Mem. at 6.
. N.Y. U.C.C. 2-403(3).
. 11/22/13 Overton-TSFAA UK Agreement at 9.
. See id. at 8-9.
. See, e.g., 12/2/14 TSFAA UK Receipt.
. See 2/5/08 Sammons-Overton Letter at 4.
. See Chen, 8 F.Supp.3d at 453.
. Pl. Mem. at 7 (quoting N.Y. U.C.C. § 1-201(b)(9)).
. Id. at 8-9 (citing, inter alia, Pl. 56.1 ¶¶ 18, 31, 35-37, 96). See also Pl. 56.1 ¶ 20.
. See Opp. Mem. at 22; PL 56.1 ¶ 187.
. Opp. Mem. at 8.
. See, e.g., Pl. 56.1 ¶¶ 104-106.
. Opp. Mem. at 6.
. Id. (quoting 2/8/14 Email from Andrew Rose to Jason Riley, Ex. C to Greeley Dec!., at 2722). Overton also argues that the Court should disregard Rose’s explanation of his reference to Moore as “collateral” because it is drawn from " ‘a self-serving, contradictory affidavit” that "conflicts with documentary
. See Defs. Response to Pl. 56.1 ¶ 94 (citing 2/20/15 Bill of Sale).
. Compare, e.g., 215/14 Bill of Sale with 7/1/14 Loan and Security Agreement.
. See N.Y. U.C.C. § 2-103(l)(b); Davis, 937 F.Supp.2d at 426-27.
. See Pl. Mem. at 9-10 (stating that “Cerulean is clearly a merchant in art, since it has no business other than the purchase or sale of art,” "Rose clearly holds himself out as an art merchant, as does AFP, which acts as an agent for the buying and selling of art,” and "Rose and Cerulean are legally one and the same”).
. 937 F.Supp.2d at 426 (citation omitted).
. Pl. Mem. at 14. Accord id. at 14-18.
. Davis, 937 F.Supp.2d at 432.
. See id. at 402-407. However, the parties Joint Pre-Trial Statement indicates that they plan to present expert testimony on this issue
. Davis, 937 F.Supp.2d at 407.
. See id.
. See id. at 394.
. See Cerulean Declaration V 36.
. See 937 F.Supp.2d at 429 (“[N]one of the documentation associated with the transfer of these works listed [the seller] as the owner and [the seller] never told [defendant] that he ... did, in fact, own the works. [Defendant] has not pointed to any document that listed [the seller] as the owner. To the contrary, the documents all listed "Estate of the Artist" as the provenance.”).
. See, e.g., 2/20/15 Bill of Sale (“The seller hereby confirms that ... all rights, title and interest to the work are hereby transferred free and clear. ... ”).
. See 8/3/07 Hambleden-TSI NY Option Agreement.
. Opp. Mem. at 12.
. On January 29, 2016 — over one month after summary judgment briefing was complete — Overton submitted a letter summarizing "evidence that has recently come to light
. See Pl. Mem. at 17-18.
. See 1/22/15 ArtNet News Article.
. 937 F.Supp.2d at 432.
. N.Y. U.C.C. Section 9-102(a)(2)(iii).
. Pl. Mem. at 20.
. N.Y. U.C.C. § 9-102(a)(20).
. 9/30/15 Deposition of David Tunick, Ex. Q to 12/4/15 Declaration of John Cahill, at 137:7-14.
. Printouts from TSFAA UK Website, Ex. J to Cahill Decl., at 8-10.
. Opp. Mem. at 19 (citing 12/4/15 Declaration of Andrew Rose ("12/4/15 Rose Decl.”) ¶ 7; 8/13/07 Option Agreement Between William Henry Fourth Viscount Hambleden and TSI NY ("8/3/07 Hambleden-TSI NY Option Agreement”), Ex. G to Greeley Decl., at 2-14).
. See Defs. Response to Pl. 56.1 ¶ 34.
. N.Y. U.C.C. § 9-102(a)(20) (emphasis added). Defendants also suggest that "Knickerbocker has priority” because “Knickerbocker filed a UCC Financing Statement on the Modigliani and Plaintiff (wanting confidentiality) did not.” Opp. Mem. at 18. This argument is a red herring. Any failure by Overton to perfect her interest is irrelevant because UCC Section 9-319(a) governs the rights of creditors when the owner's interest was not perfected.
. Having held that defendants’ asserted interest in the Modigliani is invalid under the UCC, I do not address Overton's alternative arguments regarding her ownership of this Work.
. Defendants also suggest that their interest is protected by UCC Section 2-326. This view appears to be based on an outdated version of that code section, which no longer applies to consignments. See N.Y. U.C.C. § 2-326 cmt. 4 ("Certain true consignment transactions were dealt with in former Sections 2-326(3) and 9-114. These provisions have been deleted and have been replaced by new provisions in Article 9. See, e.g., Sections 9-109(a)(4); 9-103(b); 9-319.”).
. It is unclear whether Overton also seeks summary judgment on her conversion claim as it relates to the Picasso. See PI. Mem. at 3 (requesting "compensatory and punitive damages for Rose's conversion of the Works”— defined earlier as “the Chagall, Dufy, Modigliani, Moore, and Wesselmann Works”— "and her loss of the Picasso due to Rose aiding and abetting torts by Sammons”). Because Overton's motion appears to distinguish the Picasso from the other Works at issue, I have construed it as excluding the Picasso from the request for conversion damages. As discussed infra at Section V(B), however, defendants seek summary judgment on all claims relating to the Picasso, including the
. Okyere, 961 F.Supp.2d at 534 (quotation marks and citation omitted).
. This is a ruling on liability only. Although Overton requests "compensatory and punitive damages,” I make no judgment regarding the amount of compensatory and/or punitive damages to be awarded. Pl. Mem. at 3. I also note that the parties have not provided briefing on the extent, if any, to which defendants’ asserted security interest in the Modigliani interfered with Overton’s right of possession.
. See Ritchie, 121 F.Supp.3d at 338-39; Lerner, 459 F.3d at 294.
. Pl. Mem. at 22 (citing Pl. 56.1 ¶¶ 171, 178, 181-184).
. See De Sole, 139 F.Supp.3d at 664-66, 2015 WL 5918458, at *37-38.
. See Opp. Mem. at 24 (citing 12/4/15 Rose Decl. ¶¶ 32, 34, 35).
. See NetJets Aviation, 537 F.3d at 183 (“[The] injustice must consist of more than merely the tort or breach of contract that is the basis of the plaintiff’s lawsuit.”).
. Opp. Mem. at 25 (citing 12/4/15 Rose Decl. ¶¶ 30-34).
. I address defendants' request for summary judgment on the Eighth Claim infra at Section V(B)(2), as this aspect of defendants’ motion relates to all of the Works, including the Picasso.
. Defendants' Joint Memorandum of Law in Support of Motion for Partial Summary Judgment ("Defs. Mem.”) at 5.
. Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment (“Pl. Opp.”) at 2.
. Id. at 14.
. See Wells Fargo, 577 Fed.Appx. at 59-60 (explaining that joint and several liability may apply where plaintiff demonstrates, inter alia, that defendants engaged in an “an express or tacit agreement to participate in a common plan or design to commit a tortious act”).
. See Def. Mem. at 7-8 (citing 11/16/15 Rose Decl. ¶¶ 5-7, 13); Defendants’ Joint Memorandum of Law in Further Support of Motion for Summary Judgment (“Defs. Reply”) at 9 (citing 12/16/15 Rose Decl. ¶¶ 22, 24, 26; 1/15/15 Email from "bona@skarstedt. com” to "timothy@timothy-sammons.co.uk”).
. Pl. Opp. at 12. Accord Pl. Supp. 56.1 ¶ 55.
. See Pl. Opp. at 10. Accord Pl. Supp. 56.1 ¶ 54.
. Defs. Reply at 2. I do not address the "actual knowledge” prong of the aiding and abetting standard as defendants do not contest it in their motion.
. See JP Morgan Chase, 406 F.Supp.2d at 256.
. See McDaniel, 196 F.Supp.2d at 353.
. Cohen, 144 F.Supp.3d at 501, 2015 WL 6619958, at *7 (emphasis added) (quotation marks and citation omitted). Accord Chen, 8 F.Supp.3d at 465 (“[T]he [New York] Court of Appeals has suggested ... that a defendant’s awareness of the plaintiff and of the potential negative impact of its own conduct on the plaintiff may serve as further indication of the required closeness between [the] parties.” (citation omitted)).
. PI. Opp. at 16-17 (citing PL Supp. 56.1 ¶¶ 100-101; 12/8/14 Net Loan Proceeds Schedule at 6).
. See Pl. Supp. 56.1 V 55.