Billionaire financier and Museum of Modern Art trustee Steven Tananbaum’s lawsuit against dealer Larry Gagosian over the delayed delivery of a multi-million-dollar sculpture by Jeff Koons can proceed, a New York state supreme court judge has ruled.

Tananbaum initially filed suit April 2018 after waiting several years—much longer than he says he expected—for three sculptures by Koons that he agreed to purchase, starting in 2013.

Gagosian Gallery attempted to dismiss Tananbaum’s claims, asserting that he is a “highly sophisticated art collector” who was aware of Koons’s reputation as “a perfectionist who often takes years” to complete works.

Larry Gagosian, 2019, in New York City. Photo by Patrick McMullan via Getty Images.

The judge, Saliann Scarpulla, denied some of Tananbaum’s claims, including breach of good faith, but said that his argument for breach of contract could move forward.

The case hinges largely on a legal technicality over whether the sculptures—titled Venus, Eros, and Diana—should be considered “limited-edition multiples,” “fine art,” or “copies,” which are subject to different disclosure requirements under the New York Arts and Cultural Affairs Law (NYACAL).

“Gagosian moves to dismiss the NYACAL claims on the basis that the Works at issue are fine art, which excludes multiples,” Scarpulla wrote. For one of the works, Venus, she agrees that the purchase agreement made clear that it’s not a copy. But the others “may qualify as limited-edition multiples,” she wrote. “Tananbaum has sufficiently alleged that NYACAL’s disclosure requirements apply to Eros and Diana.”

Neither attorneys for Tananbaum nor Gagosian responded to requests for comment. Tananbaum’s attorney told Bloomberg that her client was pleased with the decision.

According to court papers, Tananbaum first agreed to buy Koons’s Balloon Venus Hohlen Fels (Magenta) in September 2013 for $8 million, plus tax. While waiting for the sculpture’s completion and making payments as agreed upon, he also visited Koons in his studio and agreed to acquire two other work, Eros and Diana.

Tananbaum eventually demanded photos of the works in production, he alleges in his complaint. After Gagosian failed to provide photos, Tananbaum purportedly exercised his option to cancel” purchase agreement for Diana. Gagosian declined this request as premature.

Venus was estimated to have been completed by the end of last month while Eros is estimated to be completed by October. Diana has no specified delivery date and, the complaint says, is “indefinitely delayed.”

Jeff Koons with Rabbit (1986). Photo ©David Fisher, 2019.

Koons cemented his position as the most expensive living artist—once again—this past May, when his shiny stainless-steel sculpture Rabbit (1986), estimated at $50 million to $70 million, soared to a final price of $91 million with premium at Christie’s. The allure of Rabbit, which is considered the holy grail of Koons works among top collectors, was further burnished by its longtime ownership by the late publishing magnate S.I. Newhouse.

The final price far surpassed the previous Koons record of $58.4 million and put the artist back on top as the most expensive living artist, a title he briefly lost to David Hockney.

Depositions in the Tananbaum case are due by December 19 and expert disclosure must be completed in February 2020.