FILED: NEW YORK COUNTY CLERK 08/23/ :21 PM INDEX NO /2013 NYSCEF DOC. NO. 288 RECEIVED NYSCEF: 08/23/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SOPHOCLES ZOULLAS, Index No /2013 Hon. Barry R. Ostrager vs. NICHOLAS ZOULLAS, Plaintiff, DEFENDANT S PROPOSED FACTS TO BE PROVEN AT TRIAL Defendant. Defendant Nicholas Zoullas ( Defendant or Nicholas ) submits the accompanying Proposed Facts To Be Proven At Trial and states as follows: 1. On November 27, 1995, Nicholas was the successful bidder at a Sotheby s auction held in London, England for a painting by Claude Monet titled Sainte Adresse (the Painting ). 1 * 2. The Painting was situated in London at the time of the auction.* 3. The auction was conducted in accordance with English law. 4. The Sotheby s Conditions of Sale in effect at the time of the auction provided for the application of English law. 5. On November 27, 1995, Sotheby s issued an invoice for the Painting to Nicholas.* 6. On November 28, 1995, Sophocles Nicholas Zoullas ( Sophocles Senior ) purportedly authored a letter (the November Letter ) addressed to plaintiff Sophocles Zoullas ( Sophocles ), in which he stated: For love and affection, I have decided to give you as a gift from me to you, in Europe, a beautiful painting from the November 27th Sotheby s Impressionist London sale: the early impressionist oil painting by Monet. On instructions given, Sotheby s is 1 * Denotes facts that are not at issue because they have previously been admitted by Plaintiff and/or determined by the Court. 1 of 7

2 issuing their invoice for this painting in your name, since this painting will belong to you as soon as I have paid for it. I hope you really enjoy it in good health. * 7. At all relevant times, Sophocles Senior resided in Switzerland.* 8. After authoring the November Letter, Sophocles Senior authored no other writings relevant to this dispute. 9. Sophocles has not provided any documentary evidence that he ever authored a Thank You note to Sophocles Senior, or that he authored any other writings concerning or related to his purported ownership of or interest in the Painting. 10. Sophocles Senior died in late 1996.* 11. On instructions from Nicholas, Sotheby s issued a revised invoice for the Painting to Sophocles; Sotheby s later issued a second revised invoice due to a computation error.* 12. There is no evidence that the aforementioned instructions came from Sophocles Senior. 13. There is no evidence that Nicholas disclosed to Sotheby s that the aforementioned instructions came from Sophocles Senior. 14. On December 18, 1995, Adrian Biddell ( Biddell ), the head of 19th Century European Paintings at Sotheby s, wrote Nicholas a letter in which he congratulated Nicholas on acquiring the Painting. 15. The Painting was not paid for until on or about March 19, 1996.* 16. When Sophocles Senior allegedly authored the November Letter, he did not own legal, equitable or beneficial title to the Painting. 17. There is no evidence that Sophocles Senior personally paid for the Painting.* 2 2 of 7

3 18. Sophocles claimed in a previous arbitration related to the Painting that a company named Marlinea paid for the Painting.* 19. Sophocles does not know who paid for the Painting.* 20. Sophocles has not propounded a canceled check, a wire transfer record or any other document establishing who paid for the Painting.* 21. In or around September 1996, Nicholas arranged for the Painting to be shipped from London to a storage facility in Geneva, Switzerland (the Storage Facility ), where the Painting remained in storage until 2013.* 22. Sophocles did not direct where the Painting would be sent. 23. Sophocles Senior never physically delivered the Painting to Sophocles.* 24. At all relevant times, Sophocles Senior had access to the Storage Facility.* 25. There is no documentation from the Storage Facility acknowledging to Sophocles that the Painting had been delivered.* 26. There is no documentation from the shipping company acknowledging that Sophocles owned the Painting or that he had any rights in it.* 27. There is no documentation from the Storage Facility acknowledging that Sophocles owned the Painting or that he had any rights in it.* 28. Sophocles did not pay, with his own money, for the Painting to be shipped from London to the Storage Facility.* 29. Over the seventeen years that the Painting was maintained in the Storage Facility, Sophocles never paid with his own money any costs related to the Painting, including, without limitation, storage or insurance costs.* 3 3 of 7

4 30. After the Painting arrived at the Storage Facility, Sophocles, a citizen of the State of New York at all relevant times, never took any steps during the intervening seventeen years to remove the Painting from the Storage Facility, to transport it to New York or to exercise any dominion or control over it, even after his relationship with Nicholas deteriorated.* 31. On or about July 14, 2004, Gloria Pleszewicz, an assistant to Nicholas, prepared an invoice for the Painting addressed to Naxos Art Inc. ( Naxos ), which listed the price of the Painting as $900, In or around July 2004, Nicholas asked Sotheby s for an estimate of the Painting s value. 33. In response, Biddell of Sotheby s sent a facsimile to Nicholas dated July 30, 2004 in which he advised Nicholas that Sotheby s recommended sale room estimate for the Painting was 400,000 GBP to 500,000 GBP. 34. Biddell subsequently sent Nicholas a facsimile dated August 4, 2004 in which he offered for Sotheby s to auction the Painting on behalf of Nicholas. 35. Nicholas responded to Biddell s facsimile on that same date, also by facsimile, and stated that he needed to cogitate on the matter for the next fortnight. 36. In August 2004, Nicholas sold the Painting to Naxos for $900,000.* 37. Before selling the Painting to Naxos, Nicholas openly discussed the fact that he owned the Painting. 38. Before and after the sale to Naxos, Nicholas openly discussed the fact that he intended to sell the Painting, and then, that he had sold the Painting. 39. Nicholas never instructed his assistant, Ms. Pleszewicz, to keep the fact of the sale a secret. 4 4 of 7

5 40. In or around August 2004, Nicholas openly discussed with Biddell that he had sold the Painting to Naxos. 41. Nicholas subsequently instructed his accountant to report his capital gain from the sale.* 42. In accordance with Nicholas s instructions, Nicholas accountant reported Nicholas s $383,554 capital gain from the sale of the Painting on Nicholas tax returns. 43. After acquiring the Painting, Naxos maintained the Painting in the Storage Facility in Geneva.* 44. Naxos started to pay insurance and storage costs for the Painting to the Storage Facility starting in or around 2007 or 2008.* 45. Over the years, Naxos purchased approximately 300 works of art from galleries, auction houses, dealers and Nicholas. 46. In general, where Naxos purchased works of art located in Europe, as the Painting at issue was here, Naxos would maintain them in the Storage Facility.* 47. By 2016, Naxos stored over 60 works at the Storage Facility in Geneva.* 48. Sophocles had continuous contact with Naxos two lead contacts employed by Moore Stephens LLP over the last 25 years (Richard Moore and Geoffrey Woodhouse), but he never asked about the Painting or inquired who was paying for the Painting s insurance or storage costs.* 49. Sophocles alleges that Nicholas never owned the Painting, never had any right, title or interest in it, and that Nicholas stole the Painting when he sold it to Naxos.* 50. Sophocles commenced this action in 2013.* 5 5 of 7

6 51. Nicholas never made an affirmative misrepresentation to Sophocles regarding the Painting.* 52. Sophocles has admitted that he did not maintain a fiduciary relationship with Nicholas.* 53. Sophocles had a falling out with Nicholas in the beginning of the 2000s, and they have had a strained relationship since that time, speaking with less and less frequency.* 54. Since that time, Sophocles has forbid Nicholas from seeing his grandchildren despite numerous requests by Nicholas. 55. Sophocles has taken the position in his response to Interrogatory 40, that [t]he nature and extent of the parties relationship has no bearing on the issue in this case. * 56. In response to Interrogatory 39, which asked Sophocles to [i]ndicate whether Nicholas ever took any action to conceal his ownership, control or sale of the Painting and, if so, [to] describe in detail any such conduct, Sophocles confirmed that Nicholas never took any steps to conceal the sale of the Painting, stating only that Nicholas did not make his conduct known to Plaintiff. * 57. At his deposition, Sophocles testified consistently with his response to Interrogatory 39.* 58. On June 18, 2013, the Painting sold at a Christie s auction for $3.9 MM USD.* 59. In 2013, Sophocles commenced an arbitration against Naxos in London to recover the proceeds from the Christie s auction.* 60. On October 27, 2015, Sophocles settled with Naxos, receiving $2 million less $387,500, plus a painting by Juan Gris titled Le Compotier (the Gris ).* 61. Nicholas purchased the Gris in 1996 for $387, of 7

7 62. Nicholas sold the Gris to Naxos in 2004 for $675, On June 18, 2013, Christie s offered the Gris at auction, having estimated it to be valued between $1.2 million and $1.8 million. 64. Christie s valuation was based, in part, on its review of the Gris s condition and the market for the artist s work. 65. On August 12, 2015, Christie s sent a facsimile to Naxos, then the owner of the Gris, in which it stated that it intended to offer the Gris for sale in New York on 12 th November 2015 with an Estimate of USD700,000-1,000, Sophocles offered to buy the Gris from Naxos for 600,000 GBP on August 20, As of October 27, 2015, the Gris was worth between $800,000 and $950,000. Dated: New York, NY August 23, 2017 PRYOR CASHMAN LLP By:/s/ Michael G. Goldberg Jamie M. Brickell Michael G. Goldberg Andrew M. Goldsmith 7 Times Square New York, New York Telephone: (212) Facsimile: (212) Attorneys for Defendant 7 7 of 7