FILED: NEW YORK COUNTY CLERK 09/26/ :02 PM INDEX NO /2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/26/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JOEL THOME, -against- Plaintiff, THE ALEXANDER AND LOUISA CALDER FOUNDATION and ALEXANDER S.C. ROWER, Index No /2017 AFFIDAVIT OF WII~LIAM F. CAVANAUGH, JR. IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Defendants. State of New York: County of New York: William F. Cavanaugh, Jr., being duly sworn, deposes and says as follows: 1. I am a member of Patterson Belknap Webb &Tyler LLP, attorneys for defendants The Calder Foundation (sued as The Alexander and Louisa Calder Foundation) and Alexander S.C. Rower ("Rower"). I submit this affidavit pursuant to CPLR Rule 3212(b) in support of defendants' Rule 3212 motion for summary judgment. The undisputed material facts set forth below show that plaintiff's causes of action have no merit. The law applicable to these undisputed facts is set forth in the accompanying Memorandum of Law in Support of Defendants' Motion for Summary Judgment. The Complaint and Defendants' Answer 2. Plaintiff Joel Thorne ("Thorne") complains about the decision of Phillips Auctioneers LLC ("Phillips") not to take on consignment and offer for sale at auction a work of 1 of 5

2 art called a maquette (the "Maquette"). The Maquette is a table-top model for a larger work of art. A true and correct copy of Thome's complaint is attached as Exhibit Thome further complains that defendants caused Phillips to decline to offer the Maquette at auction by interfering with Thome's relationship with Phillips and by disparaging the Maquette. Defendants have answered the complaint and denied all allegations material to Thome's causes of action. A true and correct copy of defendants' answer is attached as Exhibit 2. Th~mc Negotiated and Appt oved the Written Description of the Maquette that Says the Maquette Is a Recreation 4. I represented defendants in an antitrust action concerning the Maquette that was brought by Thome against defendants in 2014 in the United States District Court of the Southern District of New York captioned Thome v. Calder Foundation (S.D.N.Y. 14 Civ. 3446). That action was settled and dismissed in 2015 while the defendants' motion to dismiss was pending. Nothing was paid to Thome to settle his action. Thome dismissed his case with prejudice, and the parties exchanged general releases after The Calder Foundation examined the Maquette (and two other works of art) at its offices pursuant to The Foundation's standard procedures and simply agreed to disclose to Thome the application numbers assigned to the works and to maintain a written description of the works in The Foundation's records. That written description was negotiated and approved by Thome. Attached as Exhibits 3, 4 and 5 are true and correct copies of the May 20, June 1 and June 2, s between Thome and the defendants negotiating the written description of the Maquette that The Foundation maintains in its records. 5. Attached as Exhibit 6 is a true and correct copy of relevant excerpts of the transcript of the June 4, 2015 conference in the Southern District of New York at which Thome accepted the negotiated settlement. 2 2 of 5

3 6. Attached as Exhibit 7 is a true and correct copy of the June 5, from The Calder Foundation performing The Foundation's obligations under the settlement and including the description of the Maquette that The Foundation maintains in its files. 7. In the three s negotiating the settlement of the federal court action and in the June 5, from The Calder Foundation to Thome, the Maquette is described as a recreation. In the May-June 2015 settlement negotiations, Thome never objected to and accepted the description of the Maquette as a recreation. 9. After Thome received the June 5, from The Calder Foundation, he did not object to the description of the Maquette as a recreation. Thome Disclosed to Phillips His Prior Litigation with Defendants 10. Prior to commencing this action, Thome filed an order to show cause for precomplaint discovery of Phillips and defendants. The order to show cause was supported by the August 31, 2016 affidavit of Luis Cancel, who swears at paragraph 3 of that affidavit that Thome retained him to assist in selling the Maquette. A true and correct copy of the Cancel affidavit is attached as Exhibit Mr. Cancel admits he told Phillips about Thome's prior litigation with defendants. See Exhibit 8 at 6. Thome Has Had Discovery of All Files Relevant to the Merits of His Causes of Action 12. This Court granted Thome's request for pre-complaint discovery by ordering document production by Phillips and defendants and depositions of Rachel Rosan of Phillips, Alexis Marotta of The Calder Foundation and defendant Rower. A true and correct copy of 3 3 of 5

4 relevant excerpts of the October 26, 2016 transcript in In re Application of Joel Thome to Take Certain Depositions (Index No /2016) is attached as Exhibit True and correct copies of the March 28, from Ms. Rosan to Ms. Marotta and relevant excerpts of the January 19, 2017 depositions of Ms. Rosan, Ms. Marotta and defendant Rower are attached as Exhibits 10, 11, 12 and 13. Defendant Rower Had No Communication with Phillips Concerning the Maquette 14. The deposition testimony of defendant Rower establishes that he did not communicate directly or indirectly with Phillips. See Exhibit 13 at and 47. The Calder Foundation Merely Confirmed the Written Description Negotiated by Thome and Assured Phillips that the 2014 Federal Court Action Was Settled 15. The deposition testimony of Ms. Rosen and Ms. Marotta of The Foundation establishes that. they had afive-minute telephone conversation on March 29, 2016 about the Maquette; Ms. Marotta assured Ms. Rosan that Thome's 2014 federal court action against defendants was settled and there were no issues between the parties; Ms. Rosan had received from Mr. Cancel the description of the Maquette that Thome had negotiated and approved to settle Thome's 2014 federal court action; and Ms. Marotta read the description aloud to Ms. Rosan to confirm that Ms. Rosan had received the description maintained in The Calder Foundation's files. See Exhibit 11 at 25 and Exhibit 12 at Phillips Decided Not to Continue Discussions with Thome 16. Phillips decided not to continue its discussions with Mr. Cancel based on a combination of the Maquette being only a 1976 recreation of a 1936 sculpture by Alexander Calder and Thome's litigious history with the Maquette. See Exhibit 11 at and Ms. Rosan's deposition testimony confirmed the affidavit of John McCord that Phillips had L! 4 of 5

5 submitted in opposition to pre-complaint discovery. A true and correct copy of the October 21, 2016 affidavit of John McCord is attached as Exhibit 14. The Maquette Is a Recreation of an Earlier Work of Art 17. At her deposition, Ms. Marotta explained that the Maquette is a recreation of an earlier work of art. As set forth in the description of the Maquette (and two other works of art) that Thome negotiated and approved, a stage set had been created by Alexander Calder and used in 1936 for two performances of Erik Satie's music composition "Socrate." See Exhibit 7. That stage set was destroyed by fire in Id. In 1937, Alexander Calder drew an illustration of the destroyed set. Id. In 1976, John Clauser made drawings for a new set based on Calder's 1937 illustration, and Calder approved Clauser's drawings. Id. In 1976, Walter Hatke made the Maquette (and two new stage sets) based on Clauser's drawings. Id. Ms. Marotta testified that a work is a recreation when the original work created by Alexander Calder is no longer extant and the original work has been recreated. Exhibit 12 at 26 and 29. Conclusion 18. For the reasons set forth in the accompanying memorandum of law, the foregoing undisputed material facts establish that Thome's claims have no merit. William F. gh, Jr. Sworn to before me this 26`" day of September, 2017 Notary Public EILEEN CHIN Nofsry Public. Stall of Naw Yolk No. 01CH47~OQ pualfied in Nasssu County C~RMcate Filed in New Yolk Counl~ Conwniasion Expires August 31, of 5