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Reif v Nagy

Supreme Court of New York, Appellate Division, First Department

July 9, 2019, Decided; July 9, 2019, Entered

161799/15, 8172

Opinion

 [**7]   [*109]  Defendants appeal from an order of the Supreme Court, New York County (Charles E. Ramos, J.), entered on or about June 11, 2018, which, inter alia, granted plaintiffs' motion for summary judgment on their claims of replevin and conversion directing defendants to return the Artworks to plaintiffs, and for an award of damages, costs, and attorneys' fees.

SINGH, J.

This controversy stems from art allegedly looted by the *** during World War II. We are asked to decide whether Supreme Court properly granted plaintiffs, Timothy Reif and David Frankel, as co-executors of the estates of Leon Fischer and Milos Vavra (collectively plaintiffs), summary judgment on their claims for conversion and replevin. We find that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law that they have superior title to two pieces of art by Egon Schiele, [***2]  "Woman Hiding Her Face (1912)" and "Woman in a Black Pinafore (1911)" (collectively the Artworks), and that defendants Richard Nagy and Richard Nagy Ltd. (collectively defendants) failed to raise a triable issue of material fact.

Background

Plaintiffs are the legally declared heirs of Fritz Grunbaum (Grunbaum), a well-known  [****2]  Jewish Viennese cabaret artist and art collector1. Grunbaum admired the Viennese modern artist, Egon Schiele, and amassed an 81-piece collection of his work before World War II. After the Nazi invasion of Austria on March 12, 1938, Grunbaum attempted to escape with his wife, Elisabeth "Lilly" (nee Herzl) Grunbaum (Elisabeth), to Czechoslovakia, but was apprehended and arrested by the *** on or about March 22, 1938. From the time of his arrest until his  [*110]  murder on or about January 14, 1941, Grunbaum remained imprisoned in various concentration camps, including Buchenwald and Dachau.

Throughout Grunbaum's imprisonment Elisabeth endeavored to secure his release so that they could flee to family abroad.  [**8]  Her sister, Mathilde Lukacs (Mathilde), and brother-in-law, Sigmund Lukacs (Sigmund) (collectively the Lukacses) had fled Vienna to escape Nazi persecution of the Jews. [***3]  Sigmund had been arrested at the same time as Grunbaum but was released two months later on condition that he would leave Austria. He and Mathilde escaped to Belgium on August 26, 1938, where they resided until 1941 when they fled to Brussels. Elisabeth remained in Austria hoping Grunbaum would be released, as promised by certain German officers. However, starting on Kristallnacht2 and continuing throughout the war, the *** passed a series of laws targeting the Viennese Jewish community, directly impeding Elisabeth's efforts to secure Grunbaum's release as well her own ability to flee Nazi persecution.

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175 A.D.3d 107 *; 106 N.Y.S.3d 5 **; 2019 N.Y. App. Div. LEXIS 5499 ***; 2019 NY Slip Op 05504 ****; 2019 WL 2931960

 [****1]  Timothy Reif, et al., Plaintiffs-Respondents, v Richard Nagy, et al., Defendants-Appellants.

Notice: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

 THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

Prior History: Reif v. Nagy, 61 Misc. 3d 319, 80 N.Y.S.3d 629, 2018 N.Y. Misc. LEXIS 3560 (Apr. 6, 2018)

CORE TERMS

Artworks, collection, provenance, pieces, catalog, Woman, Dead, declaration, drawing, plaintiffs', inventory, heirs, defendants', conversion, imprisoned, looted, summary judgment, seizure, Hiding, export, attorney's fees, confiscated, belonged, replevin, stolen, speculations, appointed, documents, gift, power of attorney

Torts, Intentional Torts, Conversion, Elements, Civil Procedure, Remedies, Provisional Remedies, Replevin, Contracts Law, Personal Property, Rights of Possessors, Summary Judgment, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Opposing Materials, Accompanying Documentation, Bona Fide Purchasers, Estate, Gift & Trust Law, Personal Gifts, Elements of Valid Gifts, Acceptance, Evidence, Clear & Convincing Proof, Donative Intent, Delivery, Defenses, Demurrers & Objections, Affirmative Defenses, Laches, Attorney Fees & Expenses, Basis of Recovery, American Rule, Bad Faith Awards