The George Lindemann Journal by George Lindemann

The foundation has come under fire from many parts of the art world over its decision to sell the works and has defended itself by saying that it needed the money to continue to grow and to buy new artworks.       

Heiner Friedrich and Fariha de Menil Friedrich, who formed Dia in 1974 to support contemporary artists doing challenging work, filed suit in state court in Manhattan on Thursday, seeking an injunction against the foundation and Sotheby’s, which is planning to auction Dia works by luminaries like Cy Twombly, John Chamberlain and Barnett Newman on Wednesday. Many of the works named in the lawsuit were donated by Mr. and Ms. Friedrich when they created the foundation with the art historian Helen Winkler. The lawsuit claims that selling the works to private collectors would remove them “from public access and viewing in direct contravention of Dia’s entire intent and purpose.” The auction would be a breach of an “implied covenant of good faith and fair dealing” with the Friedrichs and the artists who made the works, the suit states.

In a phone interview, Mr. Friedrich, who last served on the foundation’s board in the mid-1980s, said: “The foundation must raise funds differently than through selling works of art, selling its heritage.”

Officials at Sotheby’s and Dia said they were reviewing the papers and had no comment.

Mr. and Ms. Friedrich and other opponents of the sale have met over the last several months with Dia’s director, Philippe Vergne, to try to dissuade the foundation from selling the works. Mr. Vergne has said he believes the sale to be crucial for helping the foundation evolve as it embarks on building a new Manhattan home in Chelsea. In 2004, Dia closed its two Chelsea galleries, saying it had outgrown the buildings. Its permanent collection — a huge array of works from the 1960s to the present — is now displayed in the foundation’s outpost in Beacon, N.Y.

“Dia cannot be a mausoleum,” Mr. Vergne said in June, in announcing the planned sale. “It needs to grow and develop.”

Shortly after that announcement, Paul Winkler, the former director of the Menil Collection in Houston, which has one of the best Twombly collections in the world, wrote to the foundation urging it to rethink the sale, which includes Twombly’s “Poems to the Sea,” a suite of 24 drawings from 1959, and Newman’s “Genesis — The Break,” a 1946 abstract canvas. “Poems” is expected to sell at Sotheby’s contemporary art auction next week for $6 million to $8 million.

“Cy Twombly considered ‘Poems by the Sea’ to be one of the greatest sets of drawings,” wrote Mr. Winkler, brother of Ms. Winkler. “It is a masterwork, not a minor piece to be sold to beef up an acquisition fund. The same can be said of the exceptional Chamberlain work in your care and Newman’s ‘Genesis — The Break.’ ” The Friedrichs, who were once married but have since divorced, acknowledge in the lawsuit that terms under which these works passed to the foundation may not be clear. An original statement of purpose, saying that “works of art purchased by plaintiffs through Dia or donated by them to Dia were to form permanent collections for the public” cannot be located in Mr. and Ms. Friedrich’s documents, the suit says.

But the court papers also raise the possibility that Twombly’s “Poems,” as well as some Chamberlain works and other Twomblys, might not be legally owned by Dia but might be long-term loans from the Friedrichs. The suit claims that a museum, possibly the Menil, was in discussions to buy “Poems” but that Dia rejected the offer.

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