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Law School Case Brief

Matter of Flamenbaum - 2013 NY Slip Op 7510, 22 N.Y.3d 962, 978 N.Y.S.2d 708, 1 N.E.3d 782


The Court of Appeals of New York declines to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force. 


In the probate proceeding of the estate of Riven Flamenbaum (the Estate), the Vorderasiatisches Museum in Berlin, Germany (the Museum), sought to recover a 3,000-year-old gold tablet. The tablet was first discovered prior to World War I by a team of German archeologists excavating at the foundation of the Ishtar temple in Ashur, Iraq. The tablet was shipped to the Berlin Museum (now the Vorderasiatisches Museum) in 1926. The Museum's inventory book cataloged the arrival of the gold tablet and provides a description and a sketch. In 1939, the Museum was closed because of World War II, and objects from Ashur were put in storage. In 1945, at the end of the war, the gold tablet was missing. The court determined that, although the Museum met its prima facie burden of proving legal title or superior right of possession to the tablet, its claim was barred by the doctrine of laches because the Museum had failed to either report the tablet's disappearance to the authorities or list the tablet on any international stolen art registries. On appeal, the Appellate Division, reversed the Surrogate's Court order on the law, and granted the Museum's claim for the return of the tablet. It concluded that the Estate had not established that the Museum failed to exercise reasonable diligence to locate the tablet, or that the Museum's inaction had prejudiced the Estate. 


Was it proper to grant the Museum's claim for the return of the tablet?




The court held the tablet was properly returned to the Museum because the estate failed to prove a laches defense since, although the museum could have taken steps to locate the tablet, it would have been difficult to report each individual object that was missing after the war, and the estate did not show that had the museum taken such steps, it would have discovered, before the decedent's death, that he possessed the tablet. The court further held that the estate failed to show prejudice as the decedent's son knew the tablet belonged to the museum, and the decedent could not have shown that he held title to the tablet. Allowing the estate to retain the tablet based on a spoils of war doctrine would be fundamentally unjust; good title could not be established based on the looting and removal of cultural objects during wartime by a conqueror.

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