This section contains the nature of the case and procedural background.

D contacted P via email and informed it that he was selling a Milton Avery oil painting, entitled 'Summer Table, Gloucester.' D shipped the painting from North Carolina to a warehouse in New York to exhibit the work and allow P, and any other prospective buyer, to inspect it. Jeffrey Bergen, the president and chief operating officer of P, did inspect the painting and determined it was a genuine Milton Avery work. The parties agreed on a purchase price of $200,000. The bill of sale describes the painting as 'Milton Avery Oil on Canvas.' P wired the purchase price to D and D released the painting. P then had the painting examined by the Milton and Sally Avery Arts Foundation (Avery Foundation). The Avery Foundation determined that the painting was not authentic. Bergen informed D and demanded a return of the purchase price. D initially promised that he would refund P's money, but never did. The parties moved for summary judgment.

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