Lost Art, Debtor Action, 1993 Trade Center Bombing
The Court of Appeals has issued a large number of decisions in recent weeks. This month, we discuss cases addressing the return of an ancient artifact looted from a German museum during World War II, the finality of a judgment arising out of the 1993 World Trade Center bombing, and the existence of a private right of action under the Exempt Income Protection Act of 2008.
'Spoils of War' Doctrine
It is not every day that the court finds itself presented with argument concerning the "spoils of war" doctrine, but In the Matter of Riven Flamenbaum, Deceased provided such an opportunity. In this probate proceeding, the Vorderasiatisches Museum in Berlin, Germany, sought to recover a 3,000-year-old gold tablet from the estate of a Holocaust survivor named Riven Flamenbaum. The tablet dates back to the reign of Assyrian King Tukulti-Ninurta I and was first discovered by German archeologists excavating in what is now Iraq before the First World War. It was sent to the museum in 1926. The museum was closed because of the Second World War in 1939 and a number of artifacts, including the gold tablet, were put in storage. By the end of the war in 1945, the gold tablet had gone missing.
It apparently ended up in the possession of the decedent, Riven Flamenbaum of Nassau County. When his daughter and executor, Hannah K. Flamenbaum, petitioned to judicially settle the final account of the estate in Nassau County Surrogate's Court, the decedent's son, Israel Flamenbaum, objected. He asserted that the value of a coin collection listed among estate assets was undervalued and included a "gold wafer" that is believed to be the property of a museum in Germany. Israel Flumenbaum also notified the Vorderasiatisches Museum about the gold tablet.
The museum appeared in the probate proceeding to recover the tablet. The museum's director, Beate Salje, testified that the gold tablet is part of the museum's Assyrian collection and disappeared, along with many other objects, near the end of the war. She further testified that Russian troops had taken some objects back with them to Russia at the end of the war and returned them to the museum in 1957, but Dr. Salje did not know if the tablet had been taken from the museum by Russian troops, German troops or by individuals who had taken refuge in the museum during the war.
The museum also submitted a report from an assistant professor of assyriology at Yale University named Eckart Frahm. Frahm described a professional journal article which noted that a gold tablet that had been in a German museum before the war had been seen in the hands of a dealer in New York in 1954. There is an entry in the museum's record indicating some awareness of the information in the article, but the entry is undated and there is no other indication when the museum first learned that the tablet had been reportedly sighted in 1954.
At the conclusion of the hearing, the Surrogate's Court ruled that the museum had met its burden of proving legal title or superior right of possession, but that the museum's claim was barred by the doctrine of laches. The court based its determination on the museum's failure to report the tablet's disappearance to the authorities or list it on any international stolen art registries, and the court found that this inaction prejudiced the estate by affecting its ability to defend against the museum's claim.
The Appellate Division, Second Department, reversed this decision, granted the museum's claim for return of the gold tablet, and remitted the matter to the Surrogate's Court for further proceedings. The Second Department found that the estate had failed to establish a lack of reasonable diligence by the museum or that the estate had been prejudiced by any inaction on the part of the museum. The Second Department granted the estate's motion for leave to appeal pursuant to CPLR 5602(b)(1).
In a unanimous memorandum decision, the Court of Appeals affirmed the Second Department's decision. The court first addressed the issue of laches. The court reasoned that, while the museum could have taken steps to locate the tablet such as reporting it to the authorities or listing it on stolen art registries, the museum explained during the probate proceedings that it had not taken these steps with respect to many missing items because it would have been difficult to report each object that had disappeared during the war. The court also noted that the estate had failed to offer any evidence that had the museum taken these actions it would have discovered decedent was in possession of the tablet.
The court cited its decision in Solomon R. Guggenheim Foundation v. Lubell, 77 NY2d 2311, (1991), noting that with respect to the assertion of a statute of limitations defense, "'[t]o place a burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would…encourage illicit trafficking in stolen art,'" 77 NY2d at 320.
The court also found that the estate had failed to demonstrate the prejudice necessary for the application of laches where at least one member of the decedent's family was aware that the tablet belonged to the museum and the court could not imagine any scenario where the decedent, even if he were still living and able to testify, could have established title to the gold tablet.
Finally, the court considered and rejected the estate's argument that it was entitled to keep the tablet under the "spoils of war" doctrine. The estate claimed that the Russian government had gained title to the gold tablet as a spoil of war and then transferred title to the decedent. The court noted that this theory rested entirely on conjecture and that, even if it had been supported by actual proof, the court would not adopt any doctrine that would establish good title based on the looting of cultural objects by a conquering military force. So, any practitioners considering reliance on the spoils of war doctrine in their next case should understand that their arguments are not likely to receive a warm reception in the Court of Appeals.