Estate Failed to Prove Museum’s Laches on Claim to a 3,000 Year Old Archeological Artifact Missing Since WWII

By John G. Farinacci, Esq. 

In a rather unique ceremony at the Nassau County Surrogate’s Court on December 4, 2013, Surrogate Edward W. McCarty, III ordered and presided over the physical return of an ancient Assyrian artifact from the possession of an executor of a decedent’s estate to the Pergamon Museum of Berlin Germany. The ceremony was performed with reporters and news cameras recording the event. The ceremony represented the conclusion of a long legal battle that came to an end as a result of a recent Court of Appeals decision in Matter of Flamenbaum, 2013 N.Y. LEXIS 3127 (N.Y. Nov. 14, 2013) [enhanced opinion available to lexis.com subscribers]. Said decision put an end to the very long and interesting journey of the artifact - the story of which surfaced in the form of a Surrogate’s Court litigation which I first discussed in a post here on August 8, 2012 entitled Life Imitating Art on the Stage of the Surrogate’s Court 

In 1914, just prior to the outbreak of World War I, a team of German archeologists were excavating a site near the ancient Assyrian city of Ashtur in what is now northern Iraq, but was then part of the Ottoman Empire. Matter of Flamenbaum, 27 Misc. 3d 1090, 899 N.Y.S.2d 546 (Sur. Ct. Nassau County 2010) [enhanced opinion]. The site contained the ruins of the Ishtar Temple. Among other items discovered there, a small inscribed gold tablet was found in the base of the temple. The tablet, which describes the construction of the Ishtar Temple, dates to the reign of King Tukulti-Ninurta I of Assyria (1243-1207 BCE). Id. 

Together with other artifacts, the tablet was removed, inventoried and packed on a freighter bound for Germany in the port city of Basra. During the trip, war erupted in Europe and the freighter was held in the port of Lisbon, Portugal. The contents of the ship remained in Portugal for the duration of World War I. The tablet eventually arrived in Germany in 1926 and was ultimately put on display in the the Vorderasiatisches Museum (part of the Pergamon Museum) in eastern Berlin from 1934 until the outbreak of World War II in 1939, when it was inventoried and placed in storage.  Id. 

What happened from there is somewhat of a mystery. Berlin fell to Soviet troops in 1945. During that chaotic time, many buildings, including the museum, were looted by both civilians and soldiers. The tablet was discovered to be missing from the museum's inventory sometime shortly after the end of the war in 1945. Id. 

Riven Flamenbaum (“Decedent”) was in the Auschwitz concentration camp in Poland and was liberated by allied troops. The executor posited a theory that the decedent may have obtained good title to the tablet from a Russian soldier or official based on the spoils of war doctrine. Id.

In any event, after the Decedent died, one of the beneficiaries of his estate notified the museum that the executor has possession of the tablet and the museum thereafter asserted a claim against the estate in the Nassau County Surrogate’s Court. Id. 

After a hearing, the Surrogate’s Court determined that the museum established its prima facie burden of proving legal title or a superior right of possession to the tablet based solely on the Museum’s laches. Id. The Second Department took a contrary view of the evidence and reversed the Surrogate in Matter of Flamenbaum, 95 A.D.3d 1318, 945 N.Y.S.2d 183 (2d Dep’t 2012) [enhanced opinion]. 

By its decision of November 14, 2013, the Court of Appeals affirmed the Second Department, holding that the executor had failed to establish its defense of laches. In so holding, the court stated that the executor was required to show that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the estate. The court found that “[w]hile the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war.” 2013 N.Y. LEXIS 3127 at *5. “Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to decedent’s death that he was in possession of the tablet.” Id. 

Additionally, the court found that the estate failed to prove the essential element of prejudice. The estate’s position was that since the Decedent was the only person that truly knew how he came to possess the tablet, any defenses that he may have interposed (such as statute of limitations and spoils of war) could not be established because it is not known whether and how he gained lawful title or whether he was a good faith purchaser or was merely a thief. The court held that “[w]hile the Estate argued that it had suffered prejudice due the Museum’s inaction, there is evidence that at least one family member (decedent’s son) was aware that the tablet belonged to the Museum. And, although the decedent’s testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.” Id, at *6.            As a result of the Court of Appeals decision, the tablet was finally returned to the Museum at the Surrogate’s Court on December 4, 2013. An attorney representing the Museum said during the ceremony that the Museum plans to make the tablet a prominent part of an exhibit that it has planned for 2018.  

Surrogate McCarty thanked the Decedent for finding and safeguarding the tablet which he called a “treasure of humanity.”

Mr. Farinacci is a partner in Ruskin Moscou Faltischek's Trusts and Estates Department. He heavily concentrates his practice in trust and estate litigation, having successfully handled numerous contested cases in the New York State Surrogate's Court, Supreme Court, Supreme Court Appellate Division, Court of Appeals and Federal District Court. Mr. Farinacci also represents clients in estate planning, estate administration and guardianship matters.

Prior to joining RMF, Mr. Farinacci was a partner at a Long Island law firm, where he specialized in trust and estate matters. While in law school, Mr. Farinacci interned for the Nassau Surrogate's Court under Judge C. Raymond Radigan.

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