13565. THE DOROTHY G. BENDER FOUNDATION, INC. plf-res, v. JOSEPH P. CARROLL def-ap — HON. JOSEPH P. CARROLL, COUNTERCLAIM THIRD-PARTY plf-ap, v. MORTON A. BENDER Counterclaim def-res, THE DOROTHY G. BENDER FOUNDATION, INC., Third-Party def-res — Schlam Stone & Dolan LLP, New York (Michael C. Marcus of counsel), for ap — Cooter, Mangold, Deckelbaum & Karas, LLP, Corning (Dale A. Cooter of counsel), for res — Order and Judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September 16, 2013, which, to the extent appealed from as limited by the briefs, after a nonjury trial, awarded plaintiffs judgment on their causes of action for replevin and declaratory relief, declared that plaintiffs are the sole and true owners of all right, title and interest in and to the subject artwork, and that defendants do not have any right, title, or interest in or to the subject artwork, dismissed defendants’ counterclaim for declaratory relief, and directed defendants to permit plaintiffs or their agents to retrieve and take possession of the subject artwork, unanimously affirmed, without costs.
In this action for replevin and declaratory relief, plaintiffs, acting separately and with mutual ignorance of the other’s involvement, both entered into partnerships with nonparty Salander-O’Reilly Galleries, LLC (SOG) to purchase two Arshile Gorky paintings, Pirate I and Pirate II. After SOG purchased the paintings, defendant Carroll, an art dealer, entered into an agreement to exchange his artwork for Pirate II; however, the agreement he entered into was with The Seven Salander Children Group (The Group), not with SOG. After SOG’s owner and operator, Lawrence Salander, was convicted of grand larceny and incarcerated, plaintiffs settled their claims against each other and brought this action against defendants seeking the return of Pirate II and a declaration that they are the true owners of the work. The court properly determined that plaintiffs, not defendants, own Pirate II. The court properly rejected defendants’ claim that plaintiffs, who were partners with SOG, were bound by The Group’s sale of Pirate II to Carroll under New York Partnership Law. Without any evidence that SOG conveyed title to The Group, Carroll could not have received good title from The Group, which, defendants concede, was a nonexistent entity. In any event, the sham conveyance was not in the ordinary course of the partnership’s business (see Partnership Law 20[1]), nor did Salander or SOG have apparent authority to bind plaintiffs (see Standard Funding Corp. v. Lewitt, 89 NY2d 546, 551 [1997]).
