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Estate and Elder Law

Life Imitating Art on the Stage of the Surrogate’s Court

Surrogate's Court litigation can be fascinating at times-as fascinating as the lives of the decedents whose affairs are brought to light during any given estate proceeding.Sometimes history is relived and sometimes the life exposed seems to imitate a Hollywood screenplay.

In a case in which the facts could have been taken straight out of an Indian Jones movie, the Nassau Surrogate's Court had to determine whether an ancient Assyrian artifact-a three thousand year old inscribed gold tablet-should be turned over to a German museum which claimed ownership, or remain in the possession of the estate of a Nazi concentration camp survivor who immigrated to the US shortly after the close of World War II. The legal issue: laches.

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. The site contained the ruins of the Ishtar Temple. Among other items discovered there, a small inscribed gold tablet ("the 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).

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 ultimately was put on display in the The Vorderasiatisches Museum ("the museum") in eastern Berlin from 1934 until the outbreak of World War II in 1939, when it was inventoried and placed in storage. 

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 around after the end of the war in 1945.

Riven Flamenbaum ("Decedent"), was in the Auschwitz concentration camp in Poland and was liberated by allied troops. According to family lore, after his liberation, Decedent traded a carton of cigarettes for the tablet with a Russian soldier. The tablet remained in his possession until his death in New York in 2007.

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.

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. Matter of Flamenbaum, 27 Misc. 3d 1090, 899 N.Y.S.2d 546 (Sur. Ct., Nassau County 2010) [enhanced version available to subscribers]. However, the crux of the estate's defense was that the museum's claim should be barred by laches. The estate argued that the museum did nothing in the 60 years that passed since the end of the war to try to determine the possible whereabouts of the tablet. Specifically, the museum did not notify any law enforcement agencies of the tablet's possible theft, nor register the tablet with the international art loss registry. The museum's records indicate that they knew the tablet was spotted with a New York City dealer in 1954 but did not attempt to contact law enforcement agencies in New York or the US or attempt to contact the dealer.

The museum argued that they could not have done those things for political reasons. The museum was in eastern Berlin and thus, sat within the Soviet zone after the war which became the Soviet puppet state of East Germany. The museum asserted that the Soviets would not allow them to take steps to recover lost or stolen art because they had taken a lot of cultural property out of Germany as spoils of war.

The Surrogate held that the estate had established the two part test for laches, to wit, unreasonable delay on the part of the museum in asserting its claim and prejudice to the estate. Matter of Flamenbaum, 27 Misc. 3d 1090, 1099-1100, 899 N.Y.S.2d 546, 554 (Sur. Ct., Nassau County 2010) [enhanced version available to subscribers]. Specifically, citing Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991) [enhanced version available to subscribers], the Court found that the lack of any reasonable diligence on the part of the museum to discover the whereabouts of the tablet for 60 years resulted in the museum's delay in asserting its claim. The Court was not persuaded by the argument that the museum's hands were tied by the communist regime from doing anything because, as the Court noted, the Berlin wall fell more than 20 years ago when Germany was reunified in 1989 and yet, the museum still did nothing to try to determine where the tablet might be. Matter of Flamenbaum, 27 Misc. 3d 1090, 1099, 899 N.Y.S.2d 546, 554 (Sur. Ct., Nassau County 2010) [enhanced version available to subscribers].   

On the issue of prejudice to the estate, the Court found:

As a result of the museum's inexplicable failure to report the tablet as stolen, or take any other steps toward recovery, diligent good-faith purchasers over the course of more than sixty years were not given notice of a blemish in the title. That, coupled with the fact that Riven Flamenbaum's death has forever foreclosed his ability to testify as to when and where he obtained the tablet, has severely prejudiced the estate's ability to defend the museum's related claim to the tablet. These are precisely the circumstances in which the doctrine of laches must be applied.2

Matter of Flamenbaum, 27 Misc. 3d 1090, 1100, 899 N.Y.S.2d 546, 554 (Sur. Ct., Nassau County 2010) [enhanced version available to subscribers].

Like Indiana Jones or any other Hollywood blockbuster, here, there was a sequel. The museum appealed to the Second Department which took a contrary view of the evidence and reversed the Surrogate. Specifically, the Second Department held:

For the executor to establish, on behalf of the estate, an affirmative defense on the basis of the doctrine of laches, she must demonstrate that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the estate (see Solomon R. Guggenheim Found. v. Lubell, 77 NY2d 311, 321 [enhanced version available to subscribers]). The executor did not establish that the museum failed to exercise reasonable diligence to locate the tablet (id.; cf. Bakalar v. Vavra, 619 F3d 136, 147 [enhanced version available to subscribers]). The executor's contention that the museum failed to exercise reasonable diligence by not reporting the tablet stolen to law enforcement authorities or listing it on an international stolen art registry is not, under the circumstances of this case, dispositive. The executor's argument that, had the museum taken such steps, the tablet would have surfaced earlier, is mere conjecture and, moreover, is not supported by expert or other evidence.

In any event, the executor also did not demonstrate that the museum's failure to report the tablet as missing to authorities or list it on a stolen art registry prejudiced the estate in its ability to defend against the museum's claim (see generally Bakalar v. Vavra, 619 F3d at 140-141 [enhanced version available to subscribers]; Kunstsammlungen Zu Weimar v. Elicofon, 678 F2 1150, 1164 [enhanced version available to subscribers]; cf. Matter of Peters v. Sothebys's Inc., 34 AD3d 29, 38 [enhanced version available to subscribers]; Wertheimer v. Cirker's Hayes Stor. Warehouse, 300 AD2d 117) [enhanced version available to subscribers].

Further, there is no proof that the estate changed its position to its detriment because of the delay (see Rivers v. Rivers, 35 AD3d 426, 428 [enhanced version available to subscribers]). Moreover, the equities favor the return of the tablet to the museum over its retention by the estate. Accordingly, the Surrogate's Court should have granted the museum's claim against the estate for the return of the gold tablet and directed the executor, on behalf of the estate, to return the tablet to the museum. We therefore remit the matter to the Surrogate's Court, Nassau County, for further proceedings including the entry of a decree, inter alia, directing the executor to turn over the subject property to the museum.

Matter of Flamenbaum, 95 A.D.3d 1318, 1320, 945 N.Y.S.2d 183, 185-186 (2d Dep't 2012) [enhanced version available to subscribers].

The story may not be over yet. The estate has moved the Court of Appeal for leave to appeal and I have learned that a stay of the enforcement of the order to turn the tablet over to the museum was granted pending a determination of the motion. Stay tuned.

1. Surrogate's litigation is not all will contests as the Surrogate's Court has broad subject matter jurisdiction under the New York State Constitution over all matters that relate to the affairs of a decedent or administration of an estate. N.Y. Const. Art. VI § 12(d); SCPA 201-209; Matter of Piccione, 57 N.Y.2d 278, 456 N.Y.S.2d 669, 442 N.E.2d 1180 (1983) [enhanced version available to subscribers].

2. It was claimed by the estate that because of the museum's delay until after Decedent's death, it cannot be known or established whether Decedent was a good faith purchaser, whether he got legal title from a Russian soldier who lawfully had possession of the tablet as a spoil of war or whether he was thief. The answers to those questions could impact whether the statute of limitations was available as a defense or whether the spoils of war doctrine might apply.


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