News About Auctions That Will Affect All Of Us

[RichardSimon]

Star Trek Fan Bought Memorabilia 'As Is,' Panel Says in Rejecting Claim Against Christie's
By Noeleen G. Walder
December 23, 2009

A Star Trek fan who claims he was humiliated after spending more than $24,000 on fake props at a Christie's auction has had his $7 million suit against the auction house zapped by an appellate court.
Among the items Ted Moustakis bought at the 2006 auction to commemorate the 40th anniversary of the Star Trek franchise was a visor he believed was worn by "Data," an android character played by actor Brent Spiner in "Star Trek: The Next Generation," a sequel to the original TV show.
But when Mr. Moustakis attended a Star Trek convention and asked Mr. Spiner to autograph the visor, the actor allegedly told him the visor was not real. Mr. Spiner then warned other fans to be careful not to purchase fake memorabilia, "like the guy who paid 12 Grand for a phony visor from Christie's."
Calling the entire experience "embarrassing and emotionally disturbing," Mr. Moustakis sued Christie's Inc. and CBS Paramount Television, producers of the show, for more than $7 million and accused the auction house of "willfully and in bad faith" failing to deliver authentic merchandise.
Yesterday, a unanimous panel of the Appellate Division, First Department, dismissed the fan's suit, holding in the unsigned ruling of Moustakis v. Christie's Inc., 1847, that the conditions of sale, which described the merchandise as "as is," precluded Mr. Moustakis from recovering damages.

The First Department decision will be published Thursday.
Mr. Moustakis bid for and won three items at the October 2006 auction, which according to his papers, Christie's billed as a "historic pop culture event" featuring a "rare and unique collection" of Star Trek memorabilia.
In addition to the visor, which he bought for $6,000, Mr. Moustakis spent $11,400 on a Data Starfleet Uniform and $6,600 for a poker table that he claims was identified by Christie's as having been "used in the Ten Forward lounge of the Starship Enterprise."
The character Lieutenant Commander Data was portrayed as a sentient android born in the Ornicron Theta science colony with advanced mathematical and programming abilities. He served as the second officer and chief operations officer aboard the starships USS Enterprise-D and USS Enterprise-E.
In 2007, Mr. Moustakis traveled to a Las Vegas Star Trek convention where he asked Mr. Spiner to autograph the visor. It was then that Richard Arnold, a Star Trek expert, told Mr. Moustakis the visor was not the real thing.
Mr. Spiner confirmed this. Later, Mr. Moustakis allegedly found out that a uniform identical to the one he had purchased at the auction was available on eBay for less than half of what he paid and noticed the poker table did not have a distinctive black border like the one on the Enterprise.
Claiming Christie's and Paramount had misled him about the authenticity of the items, Mr. Moustakis sued for negligent misrepresentation, fraud and violations of the General Business Law and demanded millions of dollars in punitive damages.
According to Mr. Moustakis, Christie's "had knowledge of hundreds, if not thousands of character duplicate uniforms that Paramount was warehousing."
He claimed the art house's promotional statements, along with the description of the uniform in the catalogue, led him to reasonably believe that the item was one of a kind.
And Mr. Moustakis alleged that Mr. Spiner had informed Christie's the visor was not authentic before the auction.
Items Sold 'As Is'
In October 2008, Manhattan Supreme Court Justice Joan A. Madden (See Profile) dismissed Mr. Moustakis' complaint.
Yesterday, in a four-paragraph ruling, the First Department affirmed Justice Madden's ruling.
"Contrary to plaintiff's contention that defendant Christie's had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalog," the panel wrote.
Moreover, the conditions of sale, which Mr. Moustakis accepted, expressly stated that "all property is sold 'as is' without any representation or warranty of any kind by Christie's or the seller," the court noted.
The panel held that the fraud and negligent misrepresentation claims were duplicative of the breach of contract claims and concluded that Mr. Moustakis had not sufficiently stated a violation of General Business Law §§349 or 350.
"Finally, the misconduct alleged here, which arises out of a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally, so as to warrant the imposition of punitive damages," the panel held.


=

[RichardSimon]

Plaintiff had $24,000 in damages and was suing for 7 million.


Court below said:


The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

[Leon]

Originally Posted by RichardSimon

Plaintiff had $24,000 in damages and was suing for 7 million.


Court below said:


The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

He should have only asked for 6 million . Seriously, I could see a refund, and a little bit for your troubles, but it's probably a good thing this guy didn't win 7 million. Just my opinion....

[Rob D.]

Unless sometime in the future I plan to sue for punitive damages that are nearly 300 times the amount of money I feel I was cheated out of, I'm not sure how this affects me.

[D. Bergin]

I wouldn't mind being emotionally disturbed and embarrassed by Bret Spiner for a cool $7 Mill.

[mr2686]

Doesn't this end up being a wording issue? I mean, if the auction house says that they believe this was used in the show but is being sold as is, well then the buyer beware. But if they say it was used on the show and is being sold as is, doesn't the as is indicate the condition of the item?