A father must defend himself against his son’s allegedly time-barred suit, lodged over a Monet painting worth millions, because he has failed to produce a medical affidavit showing he’s unable to testify, a state judge has ruled.

Nicholas Zoullas, the father, appears to have a meritorious summary judgment claim based on the statute of limitations, but he must proceed to trial because his son, Sophocles Zoullas, “has been deprived of the opportunity to either conduct the deposition of the defendant or call the defendant as an adverse witness at trial,” according to Manhattan Supreme Court Justice Barry Ostrager.

Justice Ostrager

NYLJ/Rick Kopstein

In a 10-page opinion, Ostrager added that “regardless of whether the conversion claim is time-barred as a matter of law, summary judgment is denied because there are potentially credibility issues relating to whether the defendant should be equitably estopped from asserting a statute of limitations claim.”

Sophocles Zoullas, the son, filed the conversion lawsuit after he spotted a Claude Monet painting while perusing auction house Christie’s online catalog in June 2013, Ostrager wrote.

The son’s claim is that the painting—which was ultimately sold by Christie’s to a third party in 2013 for $3.9 million—was gifted to him in 1995 by his grandfather, Sophocles Senior. Then in 2004 Nicholas Zoullas allegedly “stole” the painting, which was in storage, by selling it secretly to Naxos Art Inc.

Nicholas Zoullas has argued, in turn, that he’s the rightful owner of the artwork and thus he couldn’t have committed conversion by selling it. He also moved to dismiss his son’s 2013 lawsuit by contending, in part, that the suit was time-barred under the applicable statute of limitations.

In analyzing Nicholas Zoullas’ statute of limitations defense in the July 26 opinion, Ostrager said “the claim accrued in August 2004 and the three-year statute of limitations expired in August 2007, irrespective of the date of discovery,” and therefore it appeared the time for filing the suit had run.

But Ostrager noted that Sophocles Zoullas argued his father was equitably estopped from asserting the statute of limitations defense, in part because Nicholas Zoullas allegedly kept the painting’s Naxos sale hidden.

Ostrager wrote that the father’s refusal to sit for deposition or appear as a witness, without a valid excuse, meant that he’d left open “credibility issues” regarding equitable estoppel and whether it should be applied.

“There are significant hurdles to the establishment of an equitable estoppel claim with or without the testimony of the defendant,” Ostrager, of Manhattan’s Commercial Division, explained, “but without the production of the requisite [medical] affidavit by the defendant, which the defendant was ordered to produce at least three times over a period of the last six months, summary judgment cannot be granted to the defendant.”

And “while the question of whether a defendant should be equitably estopped from asserting a statute of limitations defense is generally a question of fact, in some cases, ‘equitable estoppel is inappropriate as a matter of law,’” the judge added, quoting Putter v. North Shore Univ. Hosp.

Accordingly, the lawsuit must go to a jury trial on Sept. 6, Ostrager ruled in Zoullas v. Zoullas, 155490/2013. He also ruled that “in the absence of the previously ordered affidavit, the jury will be given an adverse inference charge regarding the defendant’s failure to appear at trial.”

Michael Goldberg, a Pryor Cashman partner in Manhattan, represented Nicholas Zoullas and declined to comment. David Newman, a member of Sills Cummis & Gross in Manhattan, represented Sophocles Zoullas. He could not be reached for comment.