Legal Document: Edward Tyler Nahem Fine Art, L.L.C., Edward Tyler Nahem v. Lea Lee, Elisabeth Royer Grimblat

On August 17, 2023 a MEMORANDUM OF LAW (Motion #001) - Memorandum of law in support of Cross-Motion and in opposition to Motion was filed involving a dispute between Edward Tyler Nahem, Edward Tyler Nahem Fine Art, L.L.C., and Elisabeth Royer Grimblat, Lea Lee, for Commercial - UCC in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/12/2023 03:59 PM INDEX NO. 653982/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/12/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

EDWARD TYLER NAHEM FINE ART,
L.L.C. and EDWARD TYLER NAHEM,
Plaintiffs,
-against- Index No. 653982/2023

LEA LEE and ELISABETH ROYER
GRIMBLAT,

Defendants.

MEMORANDUM OF LAW OF PLAINTIFF
IN OPPOSITION TO MOTION OF ELISABETH ROYER
GRIMBLAT AND IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION

Plaintiﬀs Edward Tyler Nahem Fine Art, L.L.C. (the “Gallery”) and

Edward Tyler Nahem (“Mr. Nahem”) respectfully submit this Memorandum of

Law (a) in opposition to the Motion of Defendant Elisabeth Royer Grimblat

(“Royer”) to dismiss the Complaint based on purportedly improper service of

process, and (b) in support of Plaintiﬀs’ cross-motion for an Order (i) pursuant to

CPLR 308(5) determining nunc pro tunc that the service of process on Royer was

suﬃcient, and (ii) granting Plaintiﬀs the costs of this motion pursuant to 22

NYCRR Part 130.

PRELIMINARY STATEMENT

As clearly noted in Royer’s notice of motion, (Dkt. No. 8) the sole basis for

her assertion under CPLR 3211(a)(8) that this Court lacks personal jurisdiction
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over her is that service of process was insuﬃcient. She does not assert that this

Court could not exercise long-arm jurisdiction over her. In fact, she and her

attorney (the same one that represented her previously) participated fully in a

now-disposed related action, bearing Index No. 100047/2023 (the “Prior Action”),

including the submission of a successful motion to dismiss the Prior Action on the

merits.

However, Royer’s assertion that she was not properly served in this action

is baseless. As detailed in the accompanying Aﬃdavit of Karina Shreefer

(“Shreefer Aﬀ.”), the service of process on Royer in Paris was fully compliant with

French law, and thus with the terms of the Hague Convention of 15 November 1965

on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial

Matters (the “Hague Service Convention”), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638,

to which both France and the United States are members. Because service on

Royer was fully compliant with the governing law, the motion to dismiss should

be denied.

As the filing of the motion to dismiss clearly demonstrates, there is no

question that Royer had timely actual notice of this action. In fact, the numerous

steps she took to dodge service, including falsely denying that the address where

she continues to live and work is valid, would not have been possible had she

been unaware of the Verified Complaint (Dkt. No. 1). Even if service was

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technically defective, CPLR 308(f) elevates substance over form, and gives this

Court discretion to determine that a method of service not specified in Rule 308 is

valid as long as the recipient receives actual notice of the case, which, as noted,

Royer received. Accordingly, Plaintiffs are cross-moving for a determination that

service on Royer was sufficient in light of the fact that she received timely actual

notice of the Summons and Verified Complaint, notwithstanding any claimed

technical defects in the service of those papers.

The fact that service on Royer clearly was fully compliant with French law

makes the motion to dismiss not only meritless, but frivolous. It requires the

Plaintiffs to bear the costs of opposing the frivolous motion. Plaintiffs’ cross-

motion, therefore, also seeks the imposition of costs, in an amount to be

determined, necessitated by the need to prepare and file papers in response to the

motion.

STATEMENT OF FACTS

A. Background

The principal subject matter of this action, as well as the Prior Action, was

an artwork by Alexander Calder. The Gallery agreed to purchase the Work

through Royer in December 2017, who represented herself to be the agent for its

then-owner (the “Owner”). (Verified Complaint ¶ 1.) 1

1 Because it was duly verified by Mr. Nahem on behalf of both Plaintiffs, the Verified Complaint may be
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Not long after that agreement Defendant Lea Lee (“Lee”), one of the

Owner’s three adult daughters, began claiming that the Owner had not agreed to

sell the Work and that Royer and the Owner’s other two daughters had conspired

to “steal” the Work. (Verified Complaint ¶ 2.) Royer repeatedly assured Plaintiffs

over the following years that Lee was lying, unstable, and not serious. The Gallery

relied on Royer’s assurances, including of good title, and held the Work in its

inventory, awaiting the right time to sell it. (Id. ¶¶ 3-4.)

However, Lee reappeared and publicly asserted detailed, albeit false

accusations, including that Plaintiffs “stole” the Work and acted criminally in

concert with Royer and Lee’s two sisters. On 2023-January-12, Lee commenced

the Prior Action against Mr. Nahem, the Gallery, Royer, and Lee’s two sisters

(Rose Louisa Groën and Julie Renee Groën), alleging the same crimes and

conspiracies that she has espoused in public places. (Id. ¶¶ 7-8.)

Following a motion to dismiss brought by Royer and Lee’s two sisters, the

Court dismissed the Prior Action. (Id. ¶ 12-13.) 2 However, because the Court in

the Prior Action did not explicitly state or address Lee’s claims against the Gallery

or declare that the Gallery has undisputed title to the Work, and because there are

used as an affidavit. CPLR 105(u) (“A ‘verified pleading’ may be utilized as an affidavit whenever the
latter is required.”).
2 Lee has appealed the Court’s order of dismissal and continues to claim that the Work is stolen, cannot be

sold by the Gallery, and is the subject of criminal and civil proceedings in France. (Id. ¶ 14.)
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civil and criminal proceedings in France concerning the Work, Royer, Lee, and

her sisters, the Gallery continues to be unable to sell the Work. (Id. ¶ 15 3.)

Accordingly, it was necessary for Plaintiffs to bring this action to (a) secure

an explicit declaration pursuant to CPLR 3001 of the Gallery’s title that will be

recognized here, internationally and—most importantly—in the art market, so

that the Work can be sold for its full value; (b) to enjoin Lee from continuing to act

tortiously and outrageously towards Plaintiff and to obtain resulting damages

arising out of her multiple tortious actions to date, including reputational

damage; and (c) to recover damages from Royer arising out of her breaches of her

agreement (including her failure to indemnify Plaintiffs against Lee’s claims), as

well as her fraudulent misrepresentations and omissions. (Id. ¶ 17.)

B. Service on the Defendants

Defendant Lee was duly served with the Summons and Verified

Complaint at her New York City home and has filed an Answer (Dkt. No. 3) in

response.

With respect to Royer, the undersigned Plaintiffs’ attorneys contacted the

New York attorney who represented her in the Prior Action and is now

representing her in this action to see if he would accept service on her behalf. He

3Auction houses, for example, refuse to sell works of art that are the subject of claims and do not, for
obvious economic reasons, make judgments about the validity of the claims.
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refused to do so, requiring Plaintiffs to take the expensive and cumbersome steps

necessary to serve Royer in Paris.

Service on Royer was supervised by affiant Karina Shreefer, Esq., who has

been responsible for, among other things, the service of more than a thousand

defendants abroad pursuant to the Hague Service Convention including scores of

defendants in France. (Shreefer Aff. ¶ 3.) Notably, Royer’s motion fails to include

an affidavit from either Royer or anyone else with knowledge of the

circumstances concerning service.

Like the U.S. and 81 other countries, France is a signatory to the Hague

Service Convention. The United States Supreme Court has mandated use of the

Convention wherever it is in effect. Volkswagen v. Schlunk, 486 U.S. 694, 699 (1988)

(citing Société Nationale Industrielle Aerospatiale v. United States District Court, 482

U.S. 522, 534 n. 15 (1987)). The Convention provides several options to effect

service of process abroad:

• Article 5 -- via the Destination State’s Central Authority,
an office created by the Treaty to handle Hague Requests. The
Destination State then oversees service through its judicial system.

• Article 10(a) -- via mail.

• Articles 10(b) and 10(c) -- directly through a judicial
officer in the Destination State.

(Shreefer Aff. ¶ 5.)

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Plaintiffs elected to use the procedures on Article 10(b). (Shreefer Aff. ¶ 7.)

Article 10 provides that:

Article 10
Provided the State of destination does not object, the present Convention
shall not interfere with -
a) the freedom to send judicial documents, by postal channels,
directly to persons abroad,

b) the freedom of judicial officers, officials or other competent persons
of the State of origin to effect service of judicial documents directly
through the judicial officers, officials or other competent persons of the
State of destination,

c) the freedom of any person interested in a judicial proceeding to
effect service of judicial documents directly through the judicial
officers, officials or other competent persons of the State of destination.
(Shreefer Aff. ¶ 8.)

To serve Royer, Ms. Shreefer’s Law Firm retained CBO Grand Paris Justice,

who are Commissioners of Justice authorized to serve process pursuant to Article

10(b). (Shreefer Aff. ¶ 9.) The address used was: 5 Place du Palais Bourbon, 75007,

Paris, France (“Royer’s Address”). A Google search conducted December 6, 2023

confirms this address is a residence and also an art gallery, the Galerie Elizabeth

Royer. (Id. ¶ 10.) The undersigned conducted a search independently on the same

date and confirmed that Royer is holding out to the public that the “Elizabeth

Royer Gallery” is currently located at Royer’s Address. (Affirmation of Ronald

Adelman ¶ 3.) CPLR 308(6) provides unequivocally that “[f]or purposes of this

section, ‘actual place of business’ shall include any location that the defendant,
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through regular solicitation or advertisement, has held out as its place of

business.”

On or about 2023-October-27, Court Enforcement Officer and

Commissioner of Justice Amedee Briedj attempted service upon Grimblat,

according to the Affidavit of Service From a Foreign State (“the Service Affidavit”) a

copy of which is attached Exhibit A to the Shreefer Affidavit. 4 The Service

Affidavit indicates the Officer was unable to meet Royer at Royer’s Address.

Further, the Service Affidavit states that several residents indicated she had left.

Despite additional address research, the Officer was unable to find a new address

for Royer. (Shreefer Aff. ¶ 11.)

12. The French Judicial Officer concluded that Royer’s address was

unknown and commenced service pursuant to Article 659 of the French Code of

Civil Procedure. Article 659 authorizes service at a last known address by sending

the documents to be served by registered mail with acknowledgment of receipt

requested. 2023-October-27, the Officer sent the documents to be served, along

with a copy of the affidavit of service, to Royer at Royer’s Address. (Shreefer Aff.

¶ 12.)

On or about November 10, the Officer received an “Acknowledgment of

Receipt of Registered Mail” (in French: “Recommandé: Avis de Reception”) signed by

4 The Service Affidavit was also filed in this action (Dkt. No. 7) on 2023-November-13.
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Royer herself. (Shreefer Aff. ¶ 13 and Exhibit B.) In short, therefore, Royer is

located at Royer’s Address, despite pretending otherwise.

Accordingly, Royer’s representation that the Hague Service Convention

does not apply in this case because her address is not known, is blatantly false.

The Acknowledgment of Receipt belies this misrepresentation. Despite apparent

efforts to conceal her address, Royer still works and resides at Royer’s Address.

(Shreefer Aff. ¶ 14.)

Further evidence exists for this assertion. A quick Google search for this

address brings up a map of the area directly followed by a list of the “Most

popular places at this address.” (Shreefer Aff. Exhibit C.) “Elizabeth Royer” is the

first entry under the “Most popular places.” Filtering the search by time – within

past year, past month, past week, or past hour – yields the same result. (Shreefer

Aff. ¶ 15.)

ARGUMENT

I. SERVICE ON ROYER IS VALID UNDER NEW YORK AND FEDERAL LAW

Because Royer was served in accordance with the laws of France, service is

proper under the Hague Service Convention and therefore proper under New

York and federal law. First, the Supremacy Clause of the United States

Constitution provides that treaties authorized by the United States government

are the supreme law of the land and therefore will trump inconsistent state rules.

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Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (“By virtue of

the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts

inconsistent methods of service prescribed by state law in all cases to which it

applies.”).

Second, there is no inconsistency between New York and federal law

concerning service pursuant to Article 10. Mutual Benefits Offshore Fund v. Zeltser,

140 A.D.3d 444, 445 (1st Dep’t 2016) (“we now join our sister Departments and

hold that service of process by mail ‘directly to persons abroad’ is authorized by

article 10(a) of the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No.

5568 [1969] [Hague Convention] ), so long as the destination state does not object

to such service.”). As stated above and in the Shreefer Affidavit, the service on

Royer complies with these requirements. Although Royer’s moving papers coyly

fail to state where she lives and/or conducts business, they do not and cannot

contradict the fact that Royer’s Address was at the very least her “last known

address.” As such, the method of service used for her was legally valid.

However, in reality, Royer’s Address is not just her “last known address.”

At all times relevant to this motion and cross-motion, it was her actual address.

The registered letter sent to Royer’s Address was returned with Royer’s

signature. Moreover, regardless of her location (which apparently is malleable,

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depending on it benefits her to use that address), it is her actual place of business

pursuant to CPLR 308(6) because she is holding out to the public that her art

gallery is located there.

II. IF NECESSARY, THIS COURT SHOULD
VALIDITY OF SERVICE AUTHORIZE THE
NUNC PRO TUNC ON ROYER PURSUANT TO CPLR 308(5)

CPLR 308(5) provides that service on an individual like Royer may be

made “in such manner as the court, upon motion without notice, directs, if service

is impracticable under paragraphs one, two and four of this section.” Royer, of

course, has notice of Plaintiffs’ cross-motion, so she is already receiving more

notice than the law requires.

Under the circumstances, which include obvious efforts to evade service

while at the same time having actual notice of this action, we respectfully submit

that the Court should deem the service on Royer as valid regardless of any

technical issues, nunc pro tunc as of the date of service: 2023-October-27. This is

essentially identical to the actions the Court took in Morgan Guaranty Trust Co. v.

Hauser, 183 A.D.2d 683 (1st Dep’t 1992). In that case, plaintiff was unable to find an

actual current address for the defendant, who resided in Austria. Id. at 684.

However, it was undisputed that the defendant had received actual notice of the

New York lawsuit against him. Id. Under those circumstances, the Court affirmed

the holding of IAS Court that authorization nunc pro tunc of plaintiff’s service

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attempt was warranted. Id. See also Rodgers v. Rodgers, 32 AD.2d 558, 559 (2d Dep’t

1969) (allowing a method of service not explicitly authorized by Rule 308 because

it was “the type of service which may reasonably have been calculated to give

notice of the lawsuit and an opportunity to be heard.”).

Due process requires that the alternate service method under Rule 308(5)

“be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant

of the action.” Jean v. Csencsits, 171 A.D.3d 1149, 1150 (2d Dep’t 2019) (citations

omitted). Since Royer’s actual notice of this action is beyond dispute, there is no

question that the means of service on her meet that test.

III. PLAINTIFFS ARE ENTITLED UNDER PART 130
TO THE COSTS OF MOTION PRACTICE REGARDING
ROYER’S MOTION AND THEIR CROSS-MOTION

Based on all the facts and circumstances as stated above and in the

supporting papers, Plaintiffs respectfully submit that they are entitled to the

actual costs of opposing Royer’s frivolous motion to dismiss (as well as filing a

responsive cross-motion).

22 NYCRR § 130-1.1(a) provides that “[t]he court, in its discretion, may

award to any party or attorney in any civil action or proceeding before the court,

except where prohibited by law, costs in the form of reimbursement for actual

expenses reasonably incurred and reasonable attorney's fees, resulting from

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frivolous conduct as defined in this Part.” Conduct is frivolous as defined in

Section 130-1.1(c) if:

(1) it is completely without merit in law and cannot be supported by a
reasonable argument for an extension, modification or reversal of
existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the
litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

The Court has discretion to award costs, including reasonable attorneys’

fees, incurred in opposing a frivolous motion. See, e.g., Creative Bath Prods., Inc. v.

Connecticut Gen. Life Ins. Co., 173 A.D.2d 400, 401 (1st Dep’t 1991) (“Furthermore,

we agree that defendants' motion was so completely without merit as to be

frivolous within the meaning of 22 NYCRR § 130–1.1(c)”).

Royer’s motion to dismiss is frivolous under each of the three categories set

forth in Section 130-1.1(c). First, it completely lacks a legal basis for the claim that

service on Royer was unlawful. Second, lacking a legitimate basis, it was clearly

interposed to delay the determination of the claims in the Verified Complaint,

Third, it makes material factual misstatements, the most blatant one being that

Royer could no longer be found at Royer’s Address.

With regard to the amount of costs, Plaintiffs respectfully request that the

award consist of the costs Plaintiffs have incurred or will incur in responding to

the frivolous motion to dismiss. Plaintiffs will be able to submit a statement of
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those costs promptly upon a determination by this Court that Plaintiffs are

entitled to claim such costs. Section 130-1.1(b) provides that “[t]he court, as

appropriate, may make such award of costs or impose such financial sanctions

against either an attorney or a party to the litigation or against both.” Plaintiffs are

not in a position to determine the allocation of fault as between Royer and her

attorney. Accordingly, we respectfully suggest that the award be against both,

jointly and severally and that Royer and her attorney be permitted to allocate the

responsibility for the award of costs between themselves.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the

Court (a) deny Royer’s motion to dismiss based on purportedly invalid service of

process and (b) grant Plaintiffs’ cross-motion to the extent that it is not mooted by

the denial of Royer’s motion.

Dated: 2023-December-12
ARTXLAW PLLC

By: /s/ Ronald W. Adelman
John R. Cahill
Ronald W. Adelman
8 North Front Street
Kingston, NY 12401
john@artxlaw.com
ron@artxlaw.com
Tel. 917-674-5135
Attorneys for the Plaintiffs

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I, Ronald W. Adelman, an attorney duly admitted to practice law in the State of New York,
hereby certify and aﬃrm, that the total number of words in this Memorandum of Law is 3,056,
excluding parts which are exempt by Commercial Division Rule 17 and 22 NYCRR § 202.8-b(c).
In preparing this certiﬁcation, I relied on the word count of the word-processing system used to
prepare the document.

_________s/Ronald W. Adelman_________

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