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The law of gifts was set forth in the classic case of Gruen
v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496
N.E.2d 869 (1986), a case concerning the gifting of a
painting by Gustav Klimt, the Austrian modernist.
reiterated in Gruen that the elements
of a valid inter vivos gift are intent on the part of the donor to make a
present transfer, actual or constructive delivery to the donee, and acceptance
by the donee (68 N.Y.2d at 53).
In a recent
v. Mott, 2010 NY Slip Op 4525; 2010 N.Y. App.
Div. LEXIS 4442 (1st Dep't May 27, 2010), the Appellate
Division, First Department had occasion to expand on the concept of
constructive deliver of another art object.
In the Mirvish case, the gift
of a sculpture by the noted artist, Jacques Lipschitz, called The Cry a/k/a The Couple was in
issue. The sculpture was a 1,100 pound
bronze and the gift was allegedly made by a family member of the artist. A writing on the back of a photograph of the
sculpture stated, "I gave this sculpture, "The Cry" to my good friend, Bion
Fury in appreciation for all he did for me during my long illness. With love and my warm wishes ... Yula
Lipschitz/, October 2, 1997, New York".
Fury testified in his deposition that Yula Lipschitz, the decedent gave
him the writing in October 1997 and the sculpture was stored in a warehouse
thereafter at his expense until Yula's son, the respondent Hanno Mott removed
it to the Marlborough Gallery. Yula
Lipschitz died on July 20, 2003. After
her death Fury claimed ownership of the piece.
held that the requirement of delivery may be met by physical delivery of the
gift itself or by a constructive or symbolic delivery such as by an instrument
sufficient to divest the donor of dominion and control. What is sufficient to constitute delivery
must depend on the circumstances. In
this case the Court held that a gift instrument such as the one alleged in that
case would be an appropriate vehicle for the symbolic deliver of a gift such as
a substantial physical work of art such as The
The Mirvish Court reversed the Surrogate's
grant of summary judgment to the petitioner who was the assignee of Fury's
rights to The Cry. The Court held that evidence from Fury of
delivery of the symbolic instrument is barred by CPLR
4519, the dead man's statute.
The evidence was inadmissible because Fury was the assignor of the
petitioner and Fury's transaction with the decedent cannot be used to support
summary judgment. Since there was no
admissible evidence of the delivery of the gift instrument, it was error on the
Surrogate to grant petitioner's motion for summary judgment.
of these cases is that proof of delivery of a gift should include a proper gift
instrument executed before a third party.