On March 10, 2016, the First Department issued a decision in Nussberg v. Tatintsian, 2016 NY Slip Op. 01749, holding that a court erred in requiring expert testimony on valuation but nonetheless affirming the court’s decision for the defendant because the testimony of the defendants’ experts was inadmissible, explaining:
The court erred by requiring expert testimony on valuation; defendants could prove value in other ways. Because value was a crucial part of the trial, we would normally remand for a new trial. However, a new trial is unnecessary, because plaintiff’s argument on his renewal motion, i.e., that defendants’ experts should have been precluded, is meritorious.
. . .
The court should have granted renewal . . . because none of the experts had viewed the consigned works before they left the United States in 2009. Without this expert testimony, defendants would have been unable to prove that the works they acquired from plaintiff were forgeries, and thus they would have been unable to prove their set-off defense/counterclaim . . . .
Contrary to defendants’ contention, our decision need not have disastrous effects on the art market. We limit both this decision and our decision on the prior appeal to the facts of this case, i.e., a situation where defendants did not claim until many years after the sale and consignment that the artworks were forged, and they were unable to produce the people who had custody of the art between the time defendants sold it and the time they returned some of it to the United States; and plaintiff claimed that defendants, or the non-produced custodians of the art, forged it; and the custodians resided in a country that did not abide by the Hague Convention, so that plaintiff was unable to obtain evidence from them.
(Internal quotations and citations omitted).