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Rothko Forgeries and Religious Services in Public Schools

By Gabriella Khorasanee, JD on April 09, 2014 | Last updated on March 21, 2019

A case that's been up and down the Second Circuit several times since 1994 is once again in the spotlight. And, the latest in the recent slew of art-related cases in the Second Circuit involves the sale of forgeries for millions. Details below on the latest on Second Circuit legal news.

Rothko Forgeries

New York art gallery Knoedler & Company, several of its employees, and an art historian are being sued by Frank J. Fertitta III, a man who claims that the gallery knowingly sold him a forged Rothko painting for over $7 million, reports The New York Times.

Fertitta's 11-count complaint reads like a grocery list, and seeks rescission of the sale based on mutual mistake, rescission of the sale based on unilateral mistake, and includes claims of breach of express warranties, breach of implied warranty of merchantability, indemnification/reimbursement of expenses, fraud, fraudulent concealment, aiding and abetting fraud, conspiracy to commit fraud, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and wire and mail fraud.

Fertitta is seeking compensatory damages of $8.6 million, plus interest, punitive damages, treble damages under RICO, and costs, fees and expenses. We're betting this won't make it to trial and will end in settlement, but we'll keep you updated.

Religious Services in Public Schools

A New York Board of Education policy permits the use of public schools, during non-school hours, by outside organizations with the exception of religious organizations. After a lengthy procedural history we detailed for you here, we pick up with the district court that granted a preliminary injunction and summary judgment in favor of Bronx Household of Faith ("Bronx").

The city appealed, and for the sixth time (yes, you read that correctly), this case was before the Second Circuit. After discussing the intersection of Free Exercise jurisprudence with Establishment Clause jurisprudence, the court reversed the district court's judgment and vacated the injunction.

The only remedy available is for Bronx to petition for writ of certiorari to the Supreme Court -- again. However, since Bronx has since been able to build its own church across the street from the school, there may be an issue of mootness. Bronx maintains that the organization would still like to use the school building for certain functions, so they may still keep the litigation alive.

We'll keep you posted.

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