Legal Document: Douglas J. Pick, As Assignee For The Benefit Of Creditors Of Schiff Fine Arts, Llc v. Lisa Schiff

On November 14, 2023 a MEMORANDUM OF LAW IN OPPOSITION TO CROSS-MOTION AND IN FURTHER SUPPORT OF MOTION was filed involving a dispute between Douglas J. Pick, As Assignee For The Benefit Of Creditors Of Schiff Fine Arts, Llc, and Lisa Schiff, for Commercial - Other - Commercial Division in the District Court of New York County.

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

DOUGLAS J. PICK, as Assignee for the Beneﬁt
of SCHIFF FINE ART, LLC,
Index No.: 655672/2023
Plaintiff,

-against-

LISA SCHIFF,
Defendant.

MEMORANDUM OF LAW
OF DEFENDANT LISA SCHIFF
IN FURTHER SUPPORT OF HER
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
AND IN OPPOSITION TO PLAINTIFF’S MOTION TO DISQUALIFY

Defendant Lisa Schiﬀ (“Ms. Schiﬀ”) respectfully submits this Memorandum of

Law (1) in further support of her motion to dismiss the complaint of Douglas J. Pick (“Mr.

Pick” or “Plaintiﬀ”) pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7) and (2) in

opposition to Mr. Pick’s motion to disqualify the law ﬁrm representing Ms. Schiﬀ and

Ms. Schiﬀ’s company, Schiﬀ Fine Art, LLC (the “Company”).

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FACTS MATERIAL TO THE 3211(a)(1) MOTION 1 AND THE CROSS-MOTION

The factual grounds requiring the dismissal of the complaint reside entirely in

documents that Mr. Pick prepared and ultimately signed: (i) the “Assignment

Agreement,” Exhibit 2 (Dkt. 9) to the Moving Aﬃrmation of John R. Cahill dated 2023-

December-18 (“Moving Aﬀ.”; Dkt. 7) and, for the Court’s convenience, the “as ﬁled in

court copy” is Exhibit 3 to the accompanying Reply Aﬃrmation of John R. Cahill (“Mr.

Cahill”) dated 2024-January-02 (“Reply Aﬀ.”) and (ii) the “redline” document showing

the changes that Mr. Pick agreed to before signing the Assignment Agreement. (Id.,

Exhibit 1; Dkt. 8).

Mr. Pick and Ms. Schiﬀ signed the Assignment Agreement on 2023-May-15.

(Reply Aﬀ., Exhibit 3.) Mr. Cahill was ﬁrst introduced to Mr. Pick via email on the same

day and has no recollection of any verbal communications with Mr. Pick. Mr. Pick

communicated primarily with another attorney at the ﬁrm (“Wilk Auslander” LLP) (id. ¶

3, at which Mr. Cahill was Counsel and which (among others) was representing both

Ms. Schiﬀ and the Company at that time. See, e.g., Reply Aﬀ., Exhibit 4 2, No. 1,

introducing Mr. Cahill to Mr. Pick and enclosing the redline and then not-yet-signed

1
As the other branch of the motion to dismiss is pursuant to CPLR 3211(a)(7), the facts
alleged in the complaint are, pursuant to well-established law, accepted as true for
purposes of the motion.

2
For the convenience of the Court and the parties, true and correct copies of email
communications have been copied into Reply Aﬀ. Exhibit 4 and given a designation of
“No. ___” for ease of reference.

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assignment agreement. The Company and Mr. Pick executed the Assignment

Agreement that same day at Mr. Pick’s law ﬁrm oﬃces; Mr. Cahill was not present. (Id.,

Exhibit 3 at pages 6-8.)

SUMMARY OF ARGUMENT

Plaintiﬀ’s opposition to the motion to dismiss is without merit. First, relying on

statutes which are not incorporated into the Assignment Agreement, Plaintiﬀ ignores

the documentary evidence—created by and supplied by Plaintiﬀ himself—on which the

motion to dismiss pursuant to CPLR 3211(a)(1) is grounded. The Assignment

Agreement does not give Plaintiﬀ the right “to sue” Defendant. To the contrary, Plaintiﬀ

speciﬁcally agreed to forego and right “to sue, prosecute,” etc.

Because the same documents give Defendant the “sole and exclusive right . . . to

select counsel to represent Assignor (“as well as any former employees, members,” etc.)

(Reply Aﬀ., Exhibit 3 at 3), Plaintiﬀ has no right to seek to disqualify Defendant’s

counsel.

Plaintiﬀ’s opposition is based on a misapprehension. Despite having signed an

Assignment Agreement that sets out the parties’ rights, Mr. Pick argues that his rights

as an Assignee derive exclusively from the New York’s Debtor and Creditor Law.

However, as a matter of fact and in law (including the hornbook caselaw that Plaintiﬀ

citing in its moving papers that Mr. Pick does not even attempt to distinguish in his

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opposition papers 3), Plaintiﬀ’s rights derive from the contract he prepared, revised, and

signed with the Company which—relative to the statute that he seeks to apply—

materially limits his rights and powers.

Plaintiﬀ also fails to address the legal authorities the Defendant cited in her

motion that demonstrates that all of the claims are based on boilerplate, conclusory

allegations that are insuﬃcient as a matter of law. Plaintiﬀ’s argument that New York

law allows for “liberal pleadings” are not suﬃcient to save the causes of action plead in

a conclusory fashion from dismissal.

3
See, to the same eﬀect, from CORPUS JURIS SECUNDUM, 21 C.J.S. Creditor and Debtor
Law (2001) §§ 3 and 31 below:

• “An assignment for the benefit of creditors is in effect a contract . . . .”

• The construction of a written assignment for the benefit of creditors is a question
of law for the court, and not of fact for the jury, at least where the terms of the
instrument are plain and unambiguous and no question of fact exists.

See also Reply Aff., Exhibit 4, No. 8 (referring, without objection from Mr. Pick), an email
to a bank sent by Defendant’s counsel at Mr. Pick’s request “Mr. Pick is indeed the
Assignee of Schiﬀ Fine Art, LLC and has all the powers vested in him under the oﬃcial,
court-ﬁled Assignment that he sent to you”).

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ARGUMENT

I. Plaintiff’s Documented Agreement Requires Dismissal Under CPLR 3211(a)(1)

A. The Assignment Agreement, not the “General Assignment” Statute Controls

Mr. Pick’s opposition to the motion to dismiss is based on his misapprehension

of the nature of the Company’s assignment to him. In his opposition papers, Mr. Pick

repeatedly characterizes the assignment as a “general assignment for the beneﬁt of

creditors” pursuant to New York’s Debtor and Creditor Law. See, e.g., Plaintiﬀ’s

Memorandum Of Law: (A) in Opposition to Defendant’s Motion to Dismiss and (B) In

Support Of Plaintiﬀ’s Cross-Motion to Disqualify Defendant’s Counsel (“Opp. MoL”) at

Mr. Pick also characterizes as Defendant’s counsel’s “nonsensical personal

opinion” that the “Assignee had agreed to be (using Mr. Cahill’s words): ‘explicitly

precluded [from any] involvement in investigations and legal actions,’ ‘would not have

the right to sue or defend against suits and investigations,’ and that the ‘Assignor was

to be sole decision maker’ in such actions.”

Without stating who or when or how, Mr. Pick claims that he “conﬁrmed to

counsel” by “presumption and inference” only that he had “no intention” of opposing

actions brought by government/law enforcement and would “allow” the Company’s

and Ms. Schiﬀ’s attorneys to defend certain criminal and civil litigations against the

Company “(and/or Ms. Schiﬀ)” “exclusive of any action that the Assignee [Mr. Pick]

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may have.” Mr. Pick’s Aﬃrmation: (A) In Opposition to Defendant’s Motion to Dismiss;

and (B) in Support of Plaintiﬀ’s Cross-Motion to Disqualify Defendant’s Counsel (“Opp.

Aﬀ.”) ¶ 10.)

B. Undisputed Documentary Evidence Impel Dismissal of the Complaint

The Court need only review the Assignment Agreement that Mr. Pick signed to

conﬁrm that Defendant’s statements about the limitations on Mr. Pick’s authority and

the rights of the Company and Defendant are not a nonsensical opinion or merely

“[Defendant’s counsel’s] words” but rather the very words in the Assignment

Agreement itself. By way of example, the quoted language in the Moving Aﬀ. (¶ 4)

mocked as “nonsensical” by Mr. Pick (e.g., “sole decision maker [sic]”) is taken directly

from the Assignment Agreement:

AND, notwithstanding the foregoing, (1) Assignor shall retain the sole
and exclusive right to defend any litigation or investigations (whether
civil, criminal or regulatory in nature) to which Assignor is a party, to
select counsel to represent Assignor ( as well as any former employees,
members, and agents of Assignor) in the same, and to be the sole decision-
maker in all such pending or future litigations and investigations; . . .

(Reply Aﬀ., Exhibit 3 at 3) (emphasis added).

Likewise, Mr. Pick’s agreement that he would not have the right “to sue,

prosecute, defend,” etc. directly tracks the elimination of those terms in the ﬁnal draft of

the agreement that was approved by Mr. Pick ultimately signed and ﬁled in court.

Reply Aﬀ., Exhibit 3.

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Mr. Pick is bound by the plain terms of the documents submitted in support of

Defendant’s motion to dismiss pursuant to CPLR 3211(a)(1). The Assignment

Agreement and the redlined draft approved by Mr. Pick himself are clear,

unambiguous, and undisputed by Mr. Pick—he does even directly refer to them in his

opposition papers. There is no doubt what the words “sole decision-maker” mean for

the rights of the Company and likewise no doubt what striking the following words

from the authority that Mr. Pick requested in his proposed assignment agreement

means: “to sue, prosecute, defend . . . and to make, constitute and appoint one or more

attorneys under him . . . ,” etc. (Moving Aﬀ., Exhibit 1 at 3) (emphasis added).

That the Assignor and not Mr. Pick was both (1) the “sole decision-maker” with

respect to, inter alia, the defense of “any litigation” and “to select counsel to represent

Assignor . . . employees, members,” etc., and (2) not given the authority “to sue,

prosecute, etc.” or to “appoint one or more attorneys under him” (as he has done with

his own ﬁrm and is now attempting to do with another ﬁrm (In re Schiﬀ Fine Art, LLC,

Index No. 510009/2023, Dkt No. 193) is as clear as crystal. Cf. Ozdemir v. Caithness Corp.,

285 A.D.2d 961, 963, 728 N.Y.S.2d 824 (2001) (“We find no ambiguity in the meaning of

the words “found” or “first introduced” and conclude that plaintiff neither “found” nor

“first introduced” SCE to defendant”).

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Nor is any ambiguity created because Mr. Pick agreed to vary his apparently

standard contract as set forth in the draft thereof because it does not have “expressly

omitted terms that are readily found in similar contracts”:

When construing a contract, it is important to determine if the parties
have expressly omitted terms that are readily found in similar contracts. If
it is apparent that the parties intended to omit the language at issue, we
are precluded from implying those terms from the general language of the
agreement.

W. & S. Life Ins. Co. v. U.S. Bank Nat'l Ass'n, 209 A.D.3d 6, 14, 173 N.Y.S.3d 543,

549 (1st Dept 2022) (citation omitted).

The documents submitted to the Court are precisely the category of documents

that provide the basis for dismissing this case on the grounds of documentary evidence.

The applicable legal principle is summarized below:

From the cases that exist, it is clear that judicial records, as well as
documents reflecting out-of-court transactions such as mortgages, deeds,
contracts, and any other *85 papers, the contents of which are
“essentially undeniable,” would qualify as “documentary evidence” in the
proper case . For example, in (Matter of Casamassima v. Casamassima, 30
A.D.3d 596, 818 N.Y.S.2d 233), this Court held that a trust agreement
qualified as “documentary evidence” in a dispute between co-trustees.
In (Bronxville Knolls v. Webster Town Ctr. Partnership, 221 A.D.2d 248, 634
N.Y.S.2d 62), the Appellate Division, First Department, found that an
integrated mortgage and note, which unambiguously made the property
itself the plaintiffs' sole recourse, constituted “documentary evidence.” In
(Crepin v. Fogarty, 59 A.D.3d 837, 839, 874 N.Y.S.2d 278), the Appellate
Division, Third Department, found that a deed qualified as “documentary
evidence” where it conclusively established the validity of the disputed
easement.

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Along the same lines, in (150 Broadway N.Y. Assoc., L.P. v. Bodner, 14
A.D.3d 1, 7, 784 N.Y.S.2d 63), the Appellate Division, First Department,
found that a lease which unambiguously contradicted the allegations
supporting the plaintiff's cause of action alleging breach of contract
constituted “documentary evidence” under CPLR 3211(a)(1). The Court
noted that this lease represented a clear and complete written agreement
between sophisticated, counseled business people negotiating at arms
length (id. at 8, 784 N.Y.S.2d 63). Relying on the same reasoning, the
Appellate Division, Third Department, in (Ozdemir v. Caithness Corp., 285
A.D.2d 961, 728 N.Y.S.2d 824), held that a contract constituted
“documentary evidence” in a dispute regarding the payment of a finder's
fee.

Fontanetta v. Doe, 73 A.D.3d 78, 84–85 (2d Dep’t 2010) (citations omitted)

(emphasis added).

The Assignment Agreement is both a “contract” and, by virtue of its being ﬁled

in this court by Mr. Pick, a “judicial record.” (NB, that in conﬁrming Mr. Pick’s

authority to the Company’s bank, the Company’s counsel referred to the “powers

vested in him under the oﬃcial, court-ﬁled Assignment that [Mr. Pick] sent to the

[bank]”—with no reference to any statutory or other sources of his authority. (Reply

Aﬀ., Exhibit 4, No. 8) (emphasis added). 4

4
Parol evidence, e.g., what Mr. Pick vaguely purports to have “conﬁrmed with counsel”
(Opp. Aﬀ. ¶ 10 at p. 8), is not admissible to vary the terms with deﬁnite and precise
meaning:
Determining whether a contract is ambiguous “is an issue of law for the
courts to decide.” **** Consistent with New York law, “[a] written
agreement that is complete, clear and unambiguous on its face must be
enforced according to the plain meaning of its terms.”
Donohue v. Cuomo, 38 N.Y.3d 1, 12–13 (2022) (citations omitted) (emphasis
added).

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While it is, in light of the controlling terms of the Assignment Agreement and the

controlling law, not necessary to oﬀer further explanation and no need for the Court to

relay on the following in adjudication the motion to dismiss, the terms of the

Assignment Agreement make sense in the context of this particular assignment. First, as

is the case with certain creditors (e.g., the “Barasch Parties” who have brought multiple

actions against the Company and Ms. Schiﬀ) and could be the case with any others who

chose to ﬁle actions, limiting the authority and powers of the Assignee (Mr. Pick) causes

no prejudice to any party because they can pursue their claims independently of the

Assignee.

Second, it is obvious from the documents executed that the intention was to make

all of the Company’s assets and all of the Ms. Schiﬀ’s personal assets that are not

sentimental, exempt etc., available to generate funds to repay the Company’s and Ms.

Schiﬀ’s personal creditors to the greatest extent possible. At one point, Ms. Schiﬀ even

considered assigning her personal assets to Mr. Pick to coordinate and streamline the

process of paying the Company’s and Ms. Schiﬀ’s respective creditors. (Reply Aﬀ ¶ 14

and, e.g., Exhibit 4, No. 6.) Any doubts that Mr. Pick could have claimed to have about

based on allegations made by the Barasch Parties should have been addressed by what

Mr. Pick imprecisely refers to as “an investigation . . . by the U.S. Attorney’s Oﬃce and

the New York District Attorney,” both of which have more-qualiﬁed personnel and

more resources available such that resources intended to beneﬁt creditors could have

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been paid to creditors rather than law ﬁrms and accountants selected and used by Mr.

Pick. 5

Third, as a practical matter of civil procedure, neither Mr. Pick, his law ﬁrm, nor

any other law ﬁrm that he engages is in any position to sue Ms. Schiﬀ or anyone else for

that matter. Having agreed in the Assignment Agreement not to access Privileged

Information (Reply Aﬀ., Exhibit 3), Mr. Pick cannot either litigate or oversee a litigation

in this or any other court. Putting aside the fact that, without access to Privileged

Information, he may lack critical information necessary to “sue” or to defend legal

actions, he cannot, as a matter of the applicable court rules do so. By way of example,

this Court’s rules (22 N.Y.C.R.R. § 202.7, RULE 11-b) impose speciﬁc obligations on

parties to review privileged materials and meaningfully confer and schedule such

materials. Regardless of whether Mr. Pick appears as a plaintiﬀ or a defendant on behalf

of the Company, he and his counsel are unable to meet those requirements and thus

cannot act for the Company in any litigation.

5
Mr. Pick’s use of his own law ﬁrm, and attempt to use other law ﬁrms and large
accounting ﬁrms in breach of (1) the Assignment Agreement’s provision that the
Assignor shall have the “sole and exclusive right” to do so and (2) applicable law. See,
e.g., Matter of Fisher Bookbinding Co., Inc., 119 Misc. 2d 763, 764, (Queens County Sup. Ct.
1983) (criticizing, among other things, the hiring of Assignee’s law firm and other
professionals “without application to the court”), which is one of the grounds for
Defendant’s pending motion to remove the Assignee. (In re Schiff Fine Art, LLC, Index
No. 510009/2023, Dkt. 36.)

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II. The Complaint’s Other Claims All
Fail to State a Cause of Action CPLR 3211(a)(7)

Plaintiff’s opposition papers neither distinguish nor address the authorities in the

Defendant’s moving papers demonstrating that the allegations in the Complaint are

insufficient to state the claims made therein and should be dismissed.

Concerning the first cause of action, for a “Declaratory Judgment,” Plaintiff

ignores that the argument was made at all (i.e., briefly at Defendant’s Moving MoL at 6)

and the basis for dismissal, i.e., that there are conclusory allegations merely pleaded as

an improper “catchall” in the event that the Complaint’s other actions are dismissed.

Rather than defend the conclusory allegations in the second cause of action for

“Alter Ego” or seek leave to replead, Plaintiff merely cites to “blackletter law” and cases

setting forth the allegations that plaintiff must be made to sustain a cause of action to

pierce the corporate veil. What Plaintiff does not do is name even one allegation that

satisfies the “more liberal pleading standard that has been adopted.”

Plaintiff argues instead that it is not “required to have provided detailed

supporting allegations in this early stage of the litigation.” (Plaintiff’s Opp. MoL at 9.)

Plaintiff is mistaken about what is required, which is stated in the cases that Plaintiff

fails to address (i.e., P & R Hols Sols. and AHA Sales, Inc. cited in Plaintiff’s Moving MoL

at 4-5), which correctly hold that “[m]ere conclusory statements” are insufficient to

sustain Plaintiff’s “Alter Ego” cause of action. Notably, Plaintiff’s litany of allegations

arises in large part from pleadings filed by the Barasch Parties, but which do not seek

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“Alter Ego” relief. That may be because the allegations of the kind required to sustain

an “Alter Ego” claim, e.g., “that the Individual Defendants were common owners,

operated the same business, at the same physical location, with the same assets,

business operation, and many of the same employees as the Corporate Defendants” are

not alleged in the Complaint. Holme v. Glob. Mins. & Metals Corp., 22 Misc. 3d 1123(A)

(N.Y. County Sup. Ct.), aff'd, 63 A.D.3d 417 (2009) (cited in Plaintiff’s Opp. MoL at 9).

Plaintiff’s claim for “Conversion,” the third cause of action, is argued to be

justified based on (1) a citation to the definition of conversion under New York law but

without any reference to any allegation in the Complaint that identifies any specific

property that was converted and, similarly, (2) a statement that “[m]oney, specifically

identified and segregated, can be the subject of a conversion action.” (Plaintiff’s Opp.

MoL at 10) (case citation omitted).

The Complaint, however, neither identifies any “identified and segregated”

money nor alleges that money is the subject of the conversion claim. However “liberal”

New York’s “pleading rules” may be, they are not so liberal to sustain a claim for

conversion of a segregated sum of money that is not even mentioned in the Complaint.

In contrast, the case cited by Plaintiff, Opp. MoL at 10, “a specific sum, $223,280.74, to

be credited to a specific account” was alleged to have been wrongfully converted by a

bank. The First Department allowed the claim to stand in Manufacturers Hanover Tr. Co.

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v. Chem. Bank, 160 A.D.2d 113, 125 (1st Dep’t 1990) but could not do so here due to the

absence of any similar allegation about a “specific sum.”

As with all of the other causes of actions pleaded, Plaintiff’s opposition to the

dismissal of the fourth cause of action for “Unjust Enrichment” relies entirely on a

recitation of the elements of the claim and the excuse that the “liberal pleading rules”

do not require sufficient allegations. (Plaintiff’s Opp. MoL at 10.) While “detailed

particulars” are not required more than tautologies (e.g., “the Defendant was unjustly

enriched at the expense of creditors”) (id.) are required to salvage a complaint.

III. PLAINTIFF’S CROSS-MOTION TO DISQUALIFY SHOULD BE DENIED

Plaintiff’s cross-motion to disqualify Defendant’s counsel has no basis in fact or

in law.

First, as explained in detail in Point I above, the Assignment Agreement

specifically provides that the Assignor Company and its employees, members, etc.

(including Ms. Schiff) “retain the sole and exclusive right . . . to select counsel” to

“represent” them. (Reply Aff., Exhibit 3 at 3.) Plaintiff has no standing or right to

interfere with Defendant’s and the Company’s selection.

Second, Rule 3.7 of the New York Professional Rules of Conduct does not apply

because the relief sought by Defendant here rests on dispositive documentary evidence.

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Even if testimony from a witness is required (and it is not 6), Defendant’s current

counsel would not be the witness. (Reply Aff. ¶ 3) (noting that Mr. Cahill was counsel

to the Company when negotiations with Mr. Pick were initiated, but that negotiations

concerning the terms of the Assignment Agreement were conducted with Mr. Cahill via

email exchanges of revisions to Mr. Pick’s draft agreement sent by another attorney and

by Mr. Cahill without any in-person meeting or telephone call involving Mr. Cahill) Mr.

Pick does not refer to any direct communications with Mr. Cahill or dispute about the

Assignment Agreement in his moving affirmation that would require Mr. Cahill to

testify.

Third, Rule 3.7 provides two exceptions to the Advocate-Witness Rule which are

both applicable here:

i. Rule 3.7(a)(3). As Defendant’s counsel has, to date, agreed to act for

Defendant (Ms. Schiff) and the Company without charge due to Ms.

Schiff’s very limited financial resources (primarily tax-exempt accounts),

and has received no compensation of any kind (Cahill Reply Aff. ¶ 15),

disqualifying Defendant’s counsel would leave Defendant without any

6
Ironically, it is Mr. Pick who vaguely claims to have “conﬁrmed” certain statements to
unidentiﬁed “counsel” who would be an improper “witness advocate” if testimony was
required. (Plaintiﬀ’s Opp. Aﬀ ¶ 10.) Also ironic is Mr. Pick’s view of conﬂicts in this
matter given his views in at least one other case in which he was disqualiﬁed. In re JMK
Constr. Grp., Ltd., 441 B.R. 222, 236–37 (Bankr. S.D.N.Y. 2010) (“Here, P & Z seeks to
represent both debtors and creditors in the same matter . . . .”) (emphasis in original).

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legal representation at all—surely, at a minimum, a “substantial hardship”

under Rule 3.7(a)(3).

ii. Rule 3.7(a)(4). The documentary evidence that provides the support for

Defendant’s motion are self-authenticating documents sent by email and

not disputed to have been sent, agreed, and ultimately signed by Mr. Pick.

Any testimony provided would thus, at most, be a matter of “formality.”

Fourth, there is no conflict under Rule 1.7. Defendant’s counsel has been

representing both the Company and Ms. Schiff for many months, including with

respect to many motions and hearings in which Plaintiff has participated. 7 Plaintiff

seems to argue that there is a “pre-filing Assignor (which the Assignee [Mr. Pick]

“stands in the shoes of”)” and an undefined post-filing Assignor that Defendant’s

counsel represents. There is only one Assignor—the Company—and it still exists. More

importantly, it still has rights vis-à-vis Mr. Pick, including “the sole and exclusive right

to defend any litigation,” to “select counsel” to defend it and Ms. Schiff, and to be the

“sole decision-maker” with respect to all “such pending or future litigations and

investigations.” (Reply Aff., Exhibit 3 at 3). Pursuant to the Assignment Agreement that

7
See, by way of example, In re Schiﬀ Fine Art, LLC/Index No. 510009/2023, Dkt. 38 (“I am
member of ARTxLAW PLLC, attorneys for Assignor Schiﬀ Fine Art, LLC (the
“Company” or “Assignor”) (emphasis added) and all of the ﬁlings made in the actions
ﬁled by the Barasch Defendants, the ﬁrst of which was ﬁled on 2023-May-12. We will
not speculate what, after eight months, has prompted Mr. Pick to seek disqualiﬁcation
but surely, among other things, he has waived any such objections.

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he signed, Mr. Pick has no such rights, is not a decision-maker of any kind, and stands

in no one’s shoes except his own in carrying out his duties as the Assignee of the

Company. As the Assignment Agreement states, the purpose of the assignment is:

WHEREAS the Assignor herein is indebted to diverse persons in sundry
sums of money which it is unable to pay in full and is desirous of
providing for the payment of the sum pro-rata so far as it is in its power,
by an assignment and distribution of all its property for that purpose . . .

(Reply Aff., Exhibit 3 at 1) (emphasis added)

Ms. Schiff and the Company are also completely aligned in interest: both share

the singular goal of having the artworks and other assets in the Company’s possession

or control distributed properly (e.g., to their proper owners, especially to former clients

of the Company and for assets owned by the Company and Ms. Schiff respectively, that

they be sold in a way that generates the maximum available proceeds that can be

distributed to their respective creditors.

Indeed, the only conflicts with the interests of the creditors have been created by

Mr. Pick. Indeed, Mr. Pick is in direct conflict with a number of creditors, including the

Barasch Parties and some of the other parties he mentions in support of his opposition

(Opp. Aff ¶ 3 and n.1.), over their rights to recover artworks that they own and related

matters.

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FILED: NEW YORK COUNTY CLERK 01/02/2024 04:45 PM INDEX NO. 655672/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/02/2024

CONCLUSION

For the foregoing reasons, the Court is respectfully requested to dismiss the

Complaint in its entirety and to deny Plaintiff’s Cross-Motion to disqualify the law firm

defending Defendant.

Dated: New York, New York
2024-January-02

ARTXLAW PLLC

By: /s/John R. Cahill
John R. Cahill
8 North Front Street
Kingston, NY 12401
212-719-4400
john@artxlaw.com

Attorneys for Defendant Lisa Schiff

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January 02, 2024

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November 14, 2023

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Document for Douglas J. Pick, As Assignee For The Benefit Of Creditors Of Schiff Fine Arts, Llc v. Lisa Schiff

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