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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.1 Sometimes
history is relived and sometimes the life exposed seems to imitate a Hollywood
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.
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).
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
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.
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.
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 lexis.com 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 lexis.com 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 lexis.com 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 lexis.com subscribers].
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 lexis.com subscribers].
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:
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 lexis.com 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 lexis.com 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.
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 lexis.com subscribers];
Kunstsammlungen Zu Weimar v. Elicofon, 678 F2 1150, 1164 [enhanced version available to lexis.com subscribers];
cf. Matter of Peters v. Sothebys's Inc., 34 AD3d 29, 38 [enhanced version available to lexis.com subscribers];
Wertheimer v. Cirker's Hayes Stor. Warehouse, 300 AD2d 117) [enhanced version available to lexis.com subscribers].
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 lexis.com 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 lexis.com subscribers].
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 lexis.com 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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