In the Matter of Riven Flamenbaum, Deceased. Vorderasiatisches Museum, Respondent, Hannah K. Flamenbaum, Appellant, Israel Flamenbaum, Respondent.BriefN.Y.October 15, 2013To Be Argued By: Steven R. Schlesinger, Esq. Time Requested." 30 Minutes Appellate Division, Second Department, Docket No. 2010-04400 Surrogate's Court, Nassau County, Clerk's Index No. 328146 Court of [ppeal State ef ark In the Matter of the Account of Proceedings of Hannah K. Flamenbaum, as Executor of the Estate of RIVEN FLAMENBAUM, Deceased. And the Application of Vorderasiatisches Museum for a Determination of the Validity and Enforceability of a Verified Claim. VORDERASIATISCHES MUSEUM, -against- HANNAH K. FLAMENBAUM, -and- Respondent, Appellant, ISRAEL FLAMENBAUM, Respondent. BRIEF FOR APPELLANT Date Completed: January 7, 2013 JASPAN SCHLESINGER LLP Attorneys for Appellant Hannah K. Flamenbaum 300 Garden City Plaza, 5 th Floor Garden City, New York 11530 (516) 746-8000 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iii STATEMENT OF QUESTIONS PRESENTED ...................................................... 1 PRELIMINARY STATEMENT ............................................................................... 3 STATEMENT OF FACTS ........................................................................................ 4 PROCEDURAL HISTORY AND STATEMENT OF JURISDICTION ................. 8 ARGUMENT POINT I ANY CLAIM THE MUSEUM MAY HAVE TO THE TABLET IS BARRED BY THE DOCTRINE OF LACHES ....................... 14 A. The Museum's Lack of Due Diligence was Unreasonable ............................................................................... 15 B° POINT II The Museum's Lack of Due Diligence Has Caused Substantial Prejudice to the Estate ........................................ 22 C. Equity Favors the Estate ..................................................................... 30 THE SURROGATE ERRED IN DETERMINING THE MUSEUM HAD TITLE TO THE TABLET ........................................ 31 A. The Burden of Proof and Production ................................................. 31 B. The Museum Cannot Demonstrate Title to the Tablet ....................... 3 2 1. Russia Likely Claimed the Tablet As Spoils of War ............................................................................ 32 AXT/D861218v 1/M040188/C0092310 C° 2. The Museum Lost Any Claim to Title and All Rights to Possession of the Tablet ........................................... 36 The Museum Has Failed to Meet Its Burden ...................................... 42 POINT III THE AMICUS POSITIONS HAVE NO MERIT .......................................... 43 CONCLUSION ....................................................................................................... 48 AXT/D861218v 1/M040188/C0092310 ii TABLE OF AUTHORITIES Federal Cases Dubied Mach. Co. v. Vermont Knitting Co., Inc., 739 F Supp 867 (S.D.N.Y. 1990) .......................................................... 31, 32, 42 Greek Orthodox Patriarchate of Jerusalem v. Christie's Inc., 1999 U.S. Dist. LEXIS 13257, 1999 WL 673347 (S.D.N.Y. Aug. 18, 1999) ............................................................................ 15, 17 Johnson v. M'Intosh, 21 U.S. 543 (1823) ...................................................................................... 36, 37 Konowaloff v. Metro. Museum of Art, 11-4338-CV, 2012 WL 6573898 (2d Cir. Dec. 18, 2012) .......................... 41, 42 Kunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982) ............................................................................ 18 Republic of Turkey v. Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990) ...................................................................... 14 Ricaud v. American Metal Co., 246 U.S. 304, 38 S.Ct. 312, 62 L.Ed. 733 (1918) ............................................. 41 W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 110 S.Ct. 701,107 L.Ed.2d 816 (1990) ..................................... 41 State Cases Batsidis v. Batsidis, 9 A.D.3d 342, 778 N.Y.S.2d 913 (2d Dep't 2004) ...................................... 31, 42 Glenesk v. Guidance Realty Corp., 36 A.D.2d 852, 321 N.Y.S.2d 685 (2d Dep't 1971) .................................... 14, 21 Goodfarb v. Freedman, 76 A.D.2d 565,431 N.Y.S.2d 573 (2d Dep't 1980) .......................................... 30 In re Peters, 34 A.D.3d 29 (lst Dep't 2006) .............................................................. 14, 23, 29 AXT/D86116 lvl/M040188/C0092310 i Menzel v. List, 22 A.D.2d 647, 253 N.Y.S.2d 43 (1964) .......................................................... 24 Metro. Museum Historic Dist. Coal. v. De Montebello, 20 A.D.3d 28, 796 N.Y.S.2d 64 (lst Dep't 2005) ............................................. 45 Metro. Museum Historic Dist. Coal. v. De Montebello, 3 Misc. 3d 1109(A), 787 N.Y.S.2d 679 (N.Y. Sup. Ct., N.Y. Cty. 2004) ........................................................................ 45 Rivers v. Rivers, 35 A.D.3d 426, 826 N.Y.S.2d 347 (2d Dep't 2006) .......................................... 29 Solomon R. Guggenheim Foundation v. Lubell, 153 A.D.2d 143, 146, 550 N.Y.S.2d 618 (lst Dep't 1990) ............................... 24 Solomon R. Guggenheim Foundation v. Lubell, 77 N.Y.2d 311,567 N.Y.S.2d 623 (1991) ................................ 15, 16, 17, 18, 24 Sporn v. MCA Records, 58 N.Y.2d 482, 462 N.Y.S.2d 413 (1983) ................................................... 23, 24 Upright v. Mercury Bus. Machines Co., 24 Misc. 2d 571,203 N.Y.S.2d 288 (N.Y. Sup. Ct., N.Y. Cty. 1960) ............................................................ 40, 47, 48 Wertheimer v. Cirker's Hayes Storage Warehouse, Inc., 300 A.D.2d 117 (lst Dep't 2002) ........................................ 14, 16, 17, 18, 19, 22 55 N.Y. Jur. 2d Equity § Charles de Jaeger, Other Authorities 17 ..................................................................................... 30 The Linz File: Hitler's Plunder of Europe's Art (1981) ............................. 25, 26 G. Mihan, Looted Treasure 62 (1944) ................................................................................ 27 AXT/D861161 vl/M040188/C0092310 ii Jo Ann Lewis, The Art Sleuths Who Struck Gold: Two Muscovites Uncover Treasures Hitler Stole and the Russians Hid, WASHINGTON POST, Jan. 20, 1995 ....................... 26 Karl E. Meyer, "Who Owns the Spoils of War?", Archeology, July-Aug. 1995 ........................................................... 33, 34, 39, 40 Konstantin Akinsha & Grigorii Kozlov, Beautiful Loot: The Soviet Plunder of Europe's Treasures 253 (1994) ............................................................. 37, 38, 47 Lynn H. Nicholas, The Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War at 61 (1994) ...................................................... 26, 27, 33, 39 Russel Chamberlin, Loot! The Heritage of Plunder 186-87 (1983) ....................................... 33, 38, 39 S. Shawn Stephens, The Hermitage and Pushkin Exhibits: An Analysis of the Ownership Rights to Cultural_Properties Removed from Occupied Germany, 18 Hous J. Int'l L. 59, 61 (1995) ................................................. 39, 40 Silvia L. Depta, Comment, Twice Saved or Twice Stolen?: The Trophy Art Tug-of-War Between Russia and Germany, 10 Temp. Int'l & Comp. L.J. 371,371 (1996) ............................... 25, 26, 27, 33, 34, 37, 38, 40, 47 Wilhelm Treue, Art Plunder: The Fate of Works of Art in War and Unrest 13 (Basil Creighton trans., 1961) ........................................................... 38 AXT/D861161vl/M040188/C0092310 °.° 111 STATEMENT OF QUESTIONS PRESENTED 1. Where the trier of fact finds that there was a complete lack of due diligence by a claimant seeking the return of an object, which lack of due diligence substantially prejudiced the current possessor by making it impossible for him to prove (a) that he acquired good title, (b) that the statute of limitations for the cause of action for replevin had expired, or (c) that the current possessor is entitled to maintain possession for other valid reasons, should the claimant's replevin action be dismissed on the grounds of laches? The Surrogate's Court, Nassau County properly held in the affirmative, however, the Appellate Division: Second Department, erroneously and contrary to prevailing law, reversed the Surrogate's dismissal of the claimant's replevin action. 2. Where a Surrogate has properly exercised legal discretion based on the submission of the parties to an evidentiary hearing, which included the testimony of a witness, may an appellate court set aside the Surrogate's application of its legal discretion in favor of its own where the appellate court did not first determine that the Surrogate violated its discretion? The Surrogate's Court, Nassau County, did not address this question, however, the Appellate Division: Second Department erroneously answered in the affirmative and set aside the Surrogate's proper exercise of its discretion in applying the doctrine of laches and improperly substituting in own discretion. 3. Where, in an action for replevin, the Surrogate's Court determined that the action was barred by the doctrine of laches, was it error for the Surrogate's Court to make a legal finding that lawful title to the object in dispute rested in the claimant? The Surrogate's Court, Nassau County, question in the affirmative; the Appellate Department failed to address this question. improperly answered this Division: Second 2 PRELIMINARY STATEMENT This brief is submitted on behalf of Appellant, Hannah K. Flamenbaum, the Executor of the Estate of Riven Flamenbaum ("Appellant" or the "Estate"), in support of her appeal from the Decision and Order of the Appellate Division: Second Department, dated and entered on May 30, 2012 (the "Appellate Order"), which erroneously and improperly reversed the Order of the Nassau County Surrogate John B. Riordan, dated and entered March 30, 2010 (the "Surrogate's Order") (R. at 7-18.) and granted the claim of the Respondent Vorderasiatisches Museum of Berlin, Germany (the "Museum") for replevin of an artifact, despite the fact that such claim was barred by the doctrine of laches. As demonstrated herein, any claim that the Museum may have had to the artifact in question, a gold tablet that was the subject matter of a hearing in the Surrogate's Court, on September 17, 2009 (the "Tablet"), is barred by the doctrine of laches. The Museum abandoned any claim it may have had to the Tablet when, even though aware that the Tablet had been seen by a respected professor in the possession of a New York dealer, it failed to take any steps to either investigate or recover the Tablet, even steps as simple as listing it on any available registry of missing artwork, or contacting the New York dealer, or the New York City Police Department, Federal Bureau of Investigation or Interpol. 3 The Tablet was known by the Museum to be in the possession of a New York dealer in 1954. Thus, had the replevin claim been brought earlier, the Decedent would have been alive to testify as to how the Tablet came to be in his possession. If that testimony had been available, a proper showing of a chain of possession or title may have been demonstrated by the dealer or Decedent. The Museum's delay, however, has removed any opportunity to do so. But for the delay, defenses, such as a statute of limitations defense and a showing of superior title, could have been made by the Decedent. Finally, since the Surrogate determined that the Museum's claim to the Tablet was barred by laches, the Surrogate's finding that the Museum has legal title to the Tablet is erroneous. The Museum failed to prove that it had legal title, and, even if it could have made such a showing, as a result of the Museum's inordinate delay, the Estate was not in any position to challenge that argument. As such, the Second Department should have modified the Surrogate's Order by deleting that branch of the Order which made a finding of legal title, and affirmed the Surrogate's Order as modified. STATEMENT OF FACTS The Tablet, a small inscribed gold piece, allegedly found in or about 1914 by a German archaeological team in a temple, located in Ashur, an area controlled by the Turkish government at the time, has a history that, for all purposes relevant to 4 this appeal, can easily be divided into two sections. The first section concerns the ancient history of the Tablet itself, which, while both fascinating and remarkable, is not directly relevant to the issue at hand. Accordingly, the Court is respectfully referred to the "Report on the Assyrian Tablet from the Estate of Mr. Riven Flamenbaum" (R. 1 at 87-97) for a comprehensive explanation of the ancient origins and history of the Tablet itself. The second section concerns the events giving rise to the Museum's claim set out in the Surrogate's Order. (R. at 7-18.) A brief factual and procedural background relevant to this appeal for replevin and is description of the follows: "An ancient gold tablet.., disappeared from a Berlin museum in the immediate aftermath of World War II and reappeared almost sixty years later in the safe deposit box of a Holocaust survivor in Great Neck, New York." (R. at 7.) The Tablet, "sometimes referred to as a coin or amulet but in actuality the equivalent of a modem-day construction document" was discovered during "excavations around the city of Ashur, now Qual'at Serouat, Iraq, during the early years of the twentieth century, [by] a German team of archaeologists led by Dr. Walter Andrae." (R. at 7.) 1 "R. at " refers to page numbers in the Record on Appeal (the "Record"), certified on January 2, 2013, and provided to the Court simultaneously with this Brief. 5 With the conclusion of the excavations in 1914, the Tablet and other artifacts were transported to Basra and loaded on a marine freighter bound for Germany. The outbreak of World War I forced the freighter to change course for Lisbon, Portugal, where the items were stored until 1926. The artifacts were then released and shipped to what is now known as the Vorderasiatisches Museum in Berlin (the "Museum") (Respondent herein), a Museum located in that portion of Berlin which later became known colloquially as "East Germany". The Museum assigned the inventory number "VA Ass 994" to the Tablet and placed it on display. (R. at 7-8.) The Museum continued to display the Tablet until the events giving rise to World War II caused the Museum to close. Thereafter, in the turmoil of Berlin during the Second World War, the Museum lost exclusive control over its collections. Upon the end of the war, an inventory demonstrated that the Tablet was missing from the Museum's collection; however, the details of is disappearance remain unknown. [Mr. Schlesinger2:] And also at the end of World War II when the Russians came in, you lost a lot of other gold and jewelry and valuable objects; is that correct? [Museum's Director:] Yes, that's correct, but I wouldn't stick this onto the Russian troops, because before that, there were German troops and also people who lost their homes. Counsel for the Estate. 6 [Mr. Schlesinger:] But you don't know whether you lost them to German troops or Russian troops; is that correct? [Museum's Director:] took the things. No, I cannot tell where and who [Museum's Director:] ... the situation was very difficult at the end of the world war and briefly after the war there was so many people who came into the museum, both to take refuge or work there at the museum, so it was very difficult, and I cannot find myself in that position to accuse anyone. (R. at 177-78.) Thus, the Tablet could have been taken by soldiers of a liberating force, by the Decedent himself, or by others. While details of the disappearance remain a mystery, the Tablet's whereabouts were known to the Museum shortly after the end of the war. In 1954, as noted in the Museum's own business records, "the German Assyriologist H. G. Gfiterbock, then a professor at the Oriental Institute of the University of Chicago, saw what he believed was the gold tablet from Ashur in the possession of a New York dealer." (R. at 89-90.) According to the Museum's own expert report, "Gfiterbock's observation [of the Tablet being in the hands of a New York dealer] 7 is recorded in Grayson 1983, 16" [referring to a publication by Grayson, a former student of Gfiterbock's], and more notably, in the Museum's own records demonstrating that the Museum had actual knowledge of the then current location of the Tablet decades prior to commencement of this action. (R. at 89-90, 193 (in German), 195 (in English)). However, the Museum, even armed with the information that the Tablet had been seen by a respected professor in the possession of a New York dealer, took no steps whatsoever, for more than half a century, to assert its claims to ownership of the Tablet, even those as simple as contacting the professor, or the New York dealer, or the New York City Police Department, the Federal Bureau of Investigation, or Interpol. Similarly, the item was never listed in any missing art registry. Instead, the Museum elected to do nothing until after the death of the Decedent, thereby eliminating any possibility of discovering how the Tablet became part of the Estate. PROCEDURAL HISTORY AND STATEMENT OF JURISDICTION On March 10, 2006, Appellant filed her accounting as Executor of the Estate of her father, Riven Flamenbaum, who had passed-away on April 3, 2003. Mr. Flamenbaum left three surviving children - Hannah (Appellant herein), Respondent Israel Flamenbaum ("Israel") and Helen. All three were named in Decedent's will, dated April 27, 1971. The record reflects that Israel was properly 8 served with an accounting citation, while Helen filed a waiver and consent. (R. at 8.) Israel filed objections to the accounting on May 25, 2006, one of which concerned Mr. Flamenbaum's coin collection. "Israel noted that Mr. Flamenbaum had possessed, among other gold coins, 'one item identified as a "gold wafer" which is believed to be an ancient Assyrian amulet and the property of a museum in Germany which has notified objectant's attorney of its claim.'" (R. at 8, 44.) Israel's attorney notified the Museum of the Executor's possession of the Tablet. (R. at 98-100.) A notice of appearance on behalf of the Museum and a notice of claim for the gold tablet were filed with the Surrogate's Court on October 5, 2006. The Museum never filed any objections. However, "[p]ursuant to a subsequent court conference in connection with the executor's accounting and the claim filed on behalf of the [M]useum, it was decided that the court would determine the validity and enforceability of the claim as a preliminary step in the accounting proceeding." (R. at 9.) The Museum filed a note of issue on January 22, 2008. Appellant moved, by Order to Show Cause, to have the note of issue vacated so additional discovery could be completed with respect to a potential laches defense. (R. at 50-57.) In the affirmation of Wallace W. Leinheardt, Esq., dated February 19, 2008, the need for additional discovery was explained. 9 [Y]our affiant has spent the preceding nine months in contact with the Art Loss Registry ("ALR") TM, the leading authority in lost and stolen art and antiquity from around the world. The Art Loss Registry's Historical Claims Department has determined that the Claimant [the Museum] has never at any time reported the Subject Artifact as lost or stolen, either directly to ALR or to other national and international law enforcement agencies. Accordingly, should reports exist in which the claimant has reported the Subject Artifact lost or stolen, there is no practicable way for your affiant to obtain them in the absence of an order compelling discovery. Whether such reports were ever filed by the Claimant is especially relevant to the Claimant's assertion of title to the Subject Artifact, and is even more crucial in proving that the Claimant should be barred from reclaiming the Subject Artifact pursuant to the laches doctrine. (R. at 57.) In a decision issued by the Surrogate's Court on May 27, 2008 "the court granted the estate's motion to vacate claimant's note of issue on the grounds that there were special circumstances warranting additional discovery." (R. at 9.) Moreover, "[i]n a second decision, issued on September 18, 2008 [the Surrogate's Court] declined to sign an order to show cause brought by [Israel] concerning the valuation of Decedent's coins and other property, stating that the ownership of the gold tablet would first be tried as a discrete issue, prior to the trial on the issue of valuation and the other objections to the executor's account." (R. at 3 The ALR is "the world's largest private database of lost and stolen art, antiques and collectables. Its range of services includes item registration, search and recovery services to collectors, the art trade, insurers and worldwide law enforcement agencies." http ://www.artloss.com/content/history-and-business. 10 9.) In furtherance of that order, a hearing was held before the Surrogate's Court on September 17, 2009. The director of the Museum, Dr. Beate Salije, was the sole witness to testify at the hearing. Significantly, the Museum never served a subpoena compelling any of the Decedent's family to attend the hearing or testify therein, thereby waiving its right to do so, although, at best, their testimony would have been hearsay accounts of conversations with the Decedent. After the conclusion of the hearing, the parties submitted post-hearing memoranda of law and replies to those memoranda. Thereafter, the Surrogate's Order was issued, which held that the Museum's claim was barred by the doctrine of laches. In the case at bar, the museum did not act even after it was provided with reasonably reliable information concerning the tablet's whereabouts in 1954. 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. (R. at 18.) 11 On appeal the Appellate Division: Second Department reversed the Surrogate's Order, and provided that the matter be remitted "to the Surrogate's Court, Nassau County, for further proceedings including the entry of a decree, inter alia, directing Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, to turn over the subject property to the Vorderasiatisches Museum." (R. at 1A-1C.) The Executor moved for, inter alia, leave to appeal the Appellate Order to this Court, pursuant to CPLR 5602(b)(1), by Order to Show Cause, signed by the Honorable Leonard B. Austin, A.J.A.D., on June 8, 2012. The gravamen of the motion was that the Second Department erroneously and mistakenly concluded that the admitted complete failure of the Museum to take any action whatsoever to search for the Tablet over a period of nearly sixty years is not dispositive with regard to the Museum's due diligence. That holding not only fails to follow the precedent of this Court, but also creates a conflict of law between the Appellate Divisions of the Supreme Court. In addition, the Second Department mistakenly concluded that the Estate was not prejudiced despite the fact that no one but the Decedent himself could testify as to how he acquired the Tablet, and that the Museum admittedly made no efforts whatsoever to locate the Tablet for over five decades. The prejudice to the Estate, however, is clear. With the death of the Decedent he is no longer available 12 to testify as to how he acquired the Tablet. The Decedent's death compounded with the Museum's conduct and inaction has made it impossible for the Estate to prove that any of its predecessors in interest acquired good title. In addition, the professor who saw the Tablet in New York in 1954 has also passed away, making it impossible to know precisely when the professor contacted the Museum and precisely what information he provided to the Museum. Moreover, the Second Department improperly substituted its judgment for that of the Surrogate's Court when it ruled that the equities favor the return of the tablet to the Museum over its retention by the Estate. By Decision and Order of the Second Department, dated and entered on June 22, 2012, the Executor's motion for leave to appeal to this Court was granted. The same unanimous panel of the Appellate Division that had issued the Appellate Order itself stated that "[q]uestions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals." (R. at 2A-2B.) 13 ARGUMENT POINT I ANY CLAIM THE MUSEUM MAY HAVE TO THE TABLET IS BARRED BY THE DOCTRINE OF LACHES In an action for adverse possession, an owner's excessive delay in pursuing an action for replevin constitutes laches. See Republic of Turkey v. Metropolitan Museum of Art, 762 F. Supp. 44, 46 (S.D.N.Y. 1990) (applying New York Law) ("the 'unreasonable delay' requirement applies.., to the equitable defense of laches"). Laches is an equitable defense with two requirements: (1) the plaintiff has unreasonably delayed in filing suit, and (2) the defendant has suffered harm as a result of that delay. Id___•. With respect to the second prong, harm may be demonstrated by showing an "injury, change of position, intervention of equities, loss of evidence, or other disadvantage resulting from delay." Glenesk v. Guidance Realty Corp., 36 A.D.2d 852, 321 N.Y.S.2d 685 (2d Dep't 1971) (abrogated on other issues); see, e.g., In re Peters, 34 A.D.3d 29, 36 (lst Dep't 2006) (holding that the laches defense bars plaintiff's replevin action); Wertheimer v. Cirker's Hayes Storage Warehouse, Inc., 300 A.D.2d 117 (lst Dep't 2002) (holding that laches bars plaintiff's claim because plaintiff's failure to exercise due diligence in seeking return of a valuable painting left defendant virtually unable to 14 prove that any of his predecessors in ownership had good title); Greek Orthodox Patriarchate of Jerusalem v. Christie's Inc., 1999 U.S. Dist. LEXIS 13257, 1999 WL 673347 (S.D.N.Y. Aug. 18, 1999) (applying French law, but stating in dicta that, had New York law applied, the laches defense would have barred recovery of an ancient scripture due to the owner's failure to search for it or report it missing for decades). A. The Museum's Lack of Due Dilil•ence Was Unreasonable. In this case, the Museum's delay and lack of due diligence are so extreme, and so detrimental to the ability of any party to properly show a chain of custody, much less legal title, that the application of the doctrine of laches is appropriate and the Museum's claims should be barred with prejudice. In Solomon R. Guggenheim Foundation v. Lubell, 77 N.Y.2d 311,321,567 N.Y.S.2d 623 (1991) ("Guggenheim II"), this Court held that a Museum's diligence, while not relevant to an argument concerning the statute of limitations, remained relevant to a laches defense. Despite our conclusion that the imposition of a reasonable diligence requirement on the museum would be inappropriate for purposes of the Statute of Limitations, our holding today should not be seen as either sanctioning the museum's conduct or suggesting that the museum's conduct is no longer an issue in this case. We agree with the Appellate Division that the arguments raised in the appellant's summary judgment papers are directed at the conscience of the court and its ability to bring equitable considerations to bear in the 15 ultimate disposition of the painting. As noted above, although appellant's Statute of Limitations argument fails, her contention that the museum did not exercise reasonable diligence in locating the painting will be considered by the Trial Judge in the context of her laches defense. The conduct of both the appellant and the museum will be relevant to any consideration of this defense at the trial level, and as the Appellate Division noted, prejudice will also need to be shown (153 AD2d, at 149). Guggenheim II, 77 N.Y.2d at 321. Thus, the Museum's lack of diligence is relevant to the determination of the laches defense. In Wertheimer v. Cirker's Haves Storage Warehouse, Inc., 300 A.D.2d 117, 752 N.Y.S.2d 295 (lst Dep't 2002), a First Department case remarkably similar to the instant matter, the plaintiff sought to recover from the defendant art gallery a painting formerly owned by the plaintiff's grandfather that was allegedly misappropriated and sold by the person to whom the rightful owners entrusted it when they fled the Nazi occupation of France. Id. at 118. In that case, the uncontroverted evidence demonstrated that "for nearly half a century prior to the commencement of [the] action in 2000, the [rightful owner] failed to take any steps to recover the painting." Id. In addressing that issue, the First Department noted that, Because the [rightful owner's] lack of due diligence in seeking the return of the painting, as described above, substantially prejudiced [the current possessor] by making it virtually impossible for [the possessor] to 16 Id. prove that any of its predecessors in interest acquired good title, the IAS court properly granted [the possessor's] motion for summary judgment dismissing the complaint on grounds of laches (see Greek Orthodox Patriarchate of Jerusalem v Christie's Inc., 1999 WL 673347, "10-11, 1999 US Dist LEXIS 13257, *33-34 [SD NY, Aug. 30, 1999]). In this case, much like in Wertheimer, the complete lack of due diligence on the part of the Museum has persisted for more than half a century and has made it impossible for the possessor, in this case, the Estate, to prove that any of its predecessors in interest acquired good title. Therefore, the Second Department's holding that the Executor "did not establish that the museum failed to exercise reasonable diligence to locate the tablet" is erroneous. Equally flawed is the Second Department's holding that the Museum's failure to report "the tablet stolen to law enforcement authorities or [to list] it on an international stolen art registry is not, under the circumstances of this case, dispositive." (R. at 2B). In fact, these findings are directly contrary to the holding of the Appellate Division, First Department in Wertheimer and, more importantly, this Court's holdings in Guggenheim II. Moreover, while the Second Department referred to the "circumstances of this case", it failed to offer any explanation of which circumstances it was referring 17 to or why those circumstances would render Guggenheim II or Wertheimer inapplicable to the instant matter. Even if the circumstances to which the Second Department alluded were the Russian (Soviet) occupation of East Germany after World War II, which, without more information, might lead the reader to believe that it would have been nearly impossible for the Museum to take reasonable efforts to recover stolen artwork, the same would be inapplicable. Significantly, as the Surrogate noted (R. at 16), the director of another East Germany Museum, the Weimar, was able to make such efforts: Dr. Scheidig, the Director of the Weimar Museum from 1940 to 1967, who discovered the theft [in 1945], immediately reported the theft and thereafter engaged in diligent efforts to locate the paintings. These efforts included contacting various German museums and administrative organs, the Allied Control Council, the Soviet Military Administration, the United States State Department, and the Fogg and Germanic museums at Harvard (which were active in locating stolen art), all to no avail. Kunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150, 1156 (2d Cir. 1982) (applying New York law). Thus, as a matter of law, any claim by the Museum that it could take no efforts as a result of the Cold War would be patently frivolous. However, contrary to the holdings of this Court in Guggenheim II and the First 18 Department's decision in Wertheimer, in this case, the Second Department gave the Museum's complete lack of due diligence no weight whatsoever in its analysis. The Tablet was discovered missing sometime in 1945 (R. at 153.) However, the Museum abandoned its claim to the Tablet by failing to take any action or make any effort to locate the Tablet, even after the whereabouts of the Tablet came to the attention of the Museum. No police report was filed by the Museum, and like many items that were missing from the Museum, which may have been plundered by members of the German military (R. at 177), those liberated from concentration camps (R. at 178-79), and/or foreign governments (through the armies of the Russia (R. at 174) and the United States of America (R. at 178)), no entry was made by the Museum in any international art register. [Mr. Schlesinger:] Did the museum ever file a police report saying - or an official report anywhere prior to the start of this case that this object was missing? [Museum's Director:] No, we did not, and it never came that we made an official report like that because we were always in the hope that in the final analysis eventually it would - - that we would get them from Russia back or from the United States, and it just didn't make sense. [Mr. Schlesinger:] Well, there are computerized data bases (sic) of missing art from museums at the end of World War II where it is normal for a museum to list the missing objects so that dealers and appraisers from around the world would know of their claim. 19 Did the museum ever list in any of those data bases (sic) those claims, like the Art Loss Registry? [Museum's Director:] We don't of a (sic) computerized data base (sic) list like that but we have made lists, and after World War II, it didn't make sense because we didn't know exactly what went to Russia, and we don't have our lost items in the Art Loss Registry. (R. at 178-79.) The Surrogate correctly found that the Museum's complete lack of due diligence became even more egregious in or shortly after 1954. It was then that "the German Assyriologist H. G. Gfiterbock, then a professor at the Oriental Institute of the University of Chicago, saw what he believed was the gold tablet from Ashur in the possession of a New York dealer." (R. at 89-90.) According to the Museum's own expert report, "G•iterbock's observation is recorded in Grayson 1983 [referring to a publication by Grayson, a former student of Gfiterbock's], 16". Significantly, the Museum's own records show that the Museum had actual knowledge of the sighting of the Tablet in the possession of a New York dealer in 1954. (R. at 89-90, 193 (in German), 195 (in English).) 4 4 It is worth of note that, at the hearing before the Surrogate's Court, it was the Museum who attempted, successfully, to have the Museum's Records admitted into evidence as business records, an exception to the hearsay rule. 20 In a footnote in the Museum's own expert report (R. at 90 n.5) the Museum's expert specifically quotes the Grayson publication from 1983. Notably, the quotation contains the inventory number that the Museum had assigned to the Tablet, clearly indicating that the Museum had been contacted by either Grayson or Gt•terbock, since that is the only way those two gentlemen would have learned of the inventory number that the Museum had assigned to the Tablet. Thus, at a minimum the Museum had knowledge of Gfiterbock's 1954 sighting of the Tablet sometime between the citing itself and the book's publication in 1983. Indeed, now that Professor Gfiterbock has passed away, it impossible to know precisely when the professor contacted the Museum and precisely what information he provided to the Museum. This is exactly the type of loss of evidence that constitutes harm in the context of laches. Glenesk v. Guidance Realty Corp., 36 A.D.2d 852, 321 N.Y.S.2d 685 (2d Dep't 1971) (With respect to the second prong, harm may be demonstrated by showing an "injury, change of position, intervention of equities, loss of evidence, or other disadvantage resulting from delay.") All of this evidence was not only produced and moved into evidence by the Museum (R. at 136-137), but was also correctly interpreted by the Surrogate. Further, it leads to one conclusion, namely, that the Museum, despite having knowledge of the New York sighting of the Tablet by one of the world's leading 21 Assyriology experts, did nothing for more than half a century, rather than acting as a diligent owner, especially as an international Museum, must. B. The Museum's Lack of Due Diligence Has Caused Substantial Preiudice to the Estate. The Museum's inaction, delay, and complete lack of due diligence are extreme. In the words of Wertheimer, this made it virtually impossible for the possessor to prove that any of its predecessors in interest had acquired good title. Similarly, the Museum's own failure in this case has deprived the Estate of any opportunity to mount a defense. As such, the doctrine of laches bars any claim the Museum may have to the Tablet. The prejudice suffered by the Estate, meaning the legal defenses lost as a result of the Museum's delay, are multi-faceted. The Estate lost the opportunity to demonstrate that the Decedent may have acquired good title to the Tablet. The Estate lost the opportunity to demonstrate that the Decedent acquired the Tablet in a manner adverse to the interest of Museum, including the possibility that he personally took the Tablet from a rightful owner out of an understandable sense of entitlement for the wrongs the Nazi regime had committed upon the Decedent and his family. The Estate has lost the ability to question and utilize the testimony of "the German Assyriologist H. G. Gfiterbock, then a professor at the Oriental Institute of the University of Chicago, [who, in 1954] saw what he believed was the gold tablet from Ashur in the possession of a New York dealer." (R. at 89-90.) 22 The Second Department mistakenly concluded that the Executor 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." (R. at 1C.) It is possible that the Decedent acquired good title to the Tablet. However, after his death there was simply no way to prove it. It is exceptionally unclear how this most extreme form of prejudice does not qualify as "prejudicing" the Estate in its ability to defend against the Museum's claim. Similarly prejudicial to the Estate is the loss of another defense, one other than the Decedent's good title. At the oral argument on this matter, the Second Department Justice Presiding inquired as to what defenses, if any, the Estate would have had if the claim had been brought within the statute of limitations. This line of questioning misses a nuance in New York law that is critical to understanding the prejudice suffered by the Estate. The Museum should not be permitted to benefit from its own wrongful delay. But for these delays, the claim would be barred by the statute of limitations. CPLR 214 provides that an action to recover stolen property must be brought within three years after the action accrues. Where replevin is sought against the party who converted the property, the action accrues on the date of conversion. See In re Peters, 34 A.D.3d 29, 36, 821 N.Y.S.2d 61 (lst Dep't 2006) (citing_S_porn 23 v. MCA Records, 58 N.Y.2d 482, 488, 462 N.Y.S.2d 413, 448 (1983)); see also Solomon R. Guggenheim Foundation v. Lubell, 153 A.D.2d 143, 146, 550 N.Y.S.2d 618 (lst Dep't 1990) ("Guggenheim I"), affirmed by the Court of Appeals in Guggenheim II, 77 N.Y.2d 311,567 N.Y.S.2d 623 (1991). In Guggenheim I, the Appellate Division, First Department clearly stated that under New York Law, "[a]s against a thief, a cause of action for replevin accrues, and the limitations period therefore begins to run, immediately upon the occurrence of the theft, and this is so even if the owner does not know that a theft has occurred". Id. (internal citations omitted). This is quite opposite from when the action is brought against a party who purchased the property in good faith, for value and without notice of the conversion. Id. In that case, the action accrues only upon the refusal of a demand for its return. See Id. (citing Menzel v. List, 22 A.D.2d 647, 647, 253 N.Y.S.2d 43 (1964)). Accordingly, in this case, it is not proper to ask what defenses would have existed had the claim been brought within both these Statutes of Limitations. Indeed, the Museum must believe that the Decedent was a good faith purchaser (for if the Decedent was a thief, the Statute of Limitations has run). Thus, the proper question to ask is what defenses the Decedent would have had when he was still alive if the claim was brought within the Statute of Limitation as against a 24 good faith purchaser. The answer is simple: the Decedent may have been able to prove that he was the thief and thereby entitled to the benefit of the shorter Statute of Limitations. Thus, the Museum's inordinate delay caused the Decedent to lose the benefit of a more advantageous Statute of Limitations. In this case, given the history of the events that encompassed the world of fine arts, antiquities, and historical artifacts in Europe during and after World War II, it will never be known whether the Decedent, then a Polish citizen and a survivor of the infamous Auschwitz Concentration Camp, acquired the property in a manner adverse to the interest of the Museum, perhaps out of a sense of entitlement for the wrongs the Nazi regime had committed upon the Decedent, his family, his community, and his country. Indeed, many of his countrymen resorted to such tactics and the possibility certainly exists. Ironically, the turmoil of the art world was caused, quite directly, by Adolf Hitler himself. See CHARLES DE JAEGER, THE LINZ FILE: HITLER'S PLUNDER OF EUROPE'S ART (1981); Silvia L. Depta, Comment, Twice Saved or Twice Stolen?: The Trophy Art Tug-of-War Between Russia and Germany, 10 TEMP. INT 'L & COMP. L.J. 371,371 (1996). Hitler was himself a rejected artist, having failed the entrance examinations at the Academy of Fine Arts in Vienna. Id. at 14-15, 170- 71. However, this rejection only fed Hitler's ambition. He harbored a grandiose plan to build a "supermuseum" in Linz, Austria and a great House of Art in 25 Munich. Id. at 7, 10, 29. As such, Hilter's forces, on behalf of the German government, systematically looted the most prominent museums and private collections on the continent, including those of displaced Jews, to accomplish this goal. Jo Ann Lewis, The Art Sleuths Who Struck Gold. Two Muscovites Uncover Treasures Hitler Stole and the Russians Hid, WASHINGTON POST, Jan. 20, 1995, at D1. This theft of property was well known to the general citizenry. No cultural property was safe. For example, with the German crossing of the Polish border on September 1, 1939, "Poland [became] Germany's creature totally." LYNN H. NICHOLAS, The Rape of Europa." The Fate of Europe's Treasures in the Third Reich and the Second World War at 61 (1994). The Nazis seized not only the private collections of Polish aristocrats and Polish churches, but also the contents of national museums. See DE JAEGER, supra, at 59; Depta, supra, 371. The National Museum in Cracow, Poland, was stripped, and even the Zacheta, the Warsaw Society for the Encouragement of Fine Arts, was emptied. DE JAEGER, supra, at 591; see also NICHOLAS, supra, at 67. Author Lynn Nicholas recounts the observations of an individual who, like much of the citizenry, witnessed the emptying of museums and private collections of individuals: Today I was the witness of a scene particularly painful to me. Passing the Zacheta... I saw a long row of lorries standing outside . Something was being thrown out 26 through the window, something which shone with all the colors of the rainbow in the bright light of the sun. Those bits and pieces were pictures .... [t]he workmen apathetically lifted those treasures of Polish art and threw them into the waiting lorries. Soon afterwards they were driven away to an unknown destination.., it seemed like seeing old friends being murdered. NICHOLAS, supra, at 67 (citing G. Mihan, Looted Treasure 62 (1944)). Similarly, in France, the Nazis plundered art by either seizing pieces from Jewish collections and state museums or by forcing the owners to sell the works. supra NICHOLAS, at 125; Depta, supra, at 374. The official who arranged Hitler's first visit to German-occupied Paris on July 4, 1940, provided Hitler with the names and addresses of the fifteen leading Jewish art dealers in Paris. Id. Everything was to be removed, first to the German Embassy, then to the empty Louvre. Id. One displaced group of French paintings included twenty-six "Jewish owned works of degenerate art.., with undefined titles." Id. at 125-26. It is reasonable to believe that, after witnessing this societal theft, the citizens of these nations, including France, Germany, Poland, and others, such as the Decedent in this case, may have attempted to reclaim works out of a sense of entitlement. In this case, the Museum's own experts acknowledge that property of the Museum was lost in the aftermath of the war to the citizenry who looted the Museum. 27 [Mr. Schlesinger:] And also at the end of World War II when the Russians came in, you lost a lot of other gold and jewelry and valuable objects; is that correct? [Museum's Director:] Yes, that's correct, but I wouldn't stick this onto the Russian troops, because before that, there were German troops and also people who lost their homes. (R. at 177.) Further, the Museum cannot account for who took the Tablet in question. [Mr. Schlesinger:] But you don't know whether you lost them to German troops or Russian troops; is that correct? [Museum's Director:] took the things. No, I cannot tell where and who [Museum's Director:] ... I said that the situation was very difficult at the end of the world war and briefly after the war there was so many people who came into the museum, both to take refuge or work there at the museum, so it was very difficult, and I cannot find myself in that position to accuse anyone. (R. at 177-78.) Therefore, because of the Museum's lack of diligence, we will never know whether the Decedent acquired the property in a manner adverse to the interest of Museum, including the possibility that he acquired it out of a sense of 28 entitlement for the wrongs the Nazi regime had committed upon the Decedent, his family, his community, and his country. If this is the case, then the Statute of Limitations has run. See In re Peters, 34 A.D.3d 29, 36 (lst Dep't 2006) (finding where replevin is sought against the party who converted the property, the action accrues on the date of conversion.). Unfortunately, as a result diligence, no one will ever know. of the Museum's inaction and lack of any Thus, the Museum should not be allowed to benefit from its own inaction by receiving the application of a more beneficial statute of limitations. Finally, the Second Department's reliance on the decision in the matrimonial action of Rivers v. Rivers, 35 A.D.3d 426, 826 N.Y.S.2d 347 (2d Dep't 2006), which concerned maintenance payments, is misplaced. In Rivers, the Second Department stated that "in the absence of an injury to him, a change in position to his detriment, or other disadvantage to him arising from the plaintiff's delay.., the Supreme Court properly rejected his laches defense." Id. at 428. Accordingly, in Rivers, the Court's use of the disjunctive (meaning one must show only one of the following: (a) an injury, (b) a change in position, or (c) another disadvantage) indicates that the Estate is not required to demonstrate all three factors. In this case, however, as demonstrated above, the Estate has proven both an injury (the loss of the application of a shorter statute of limitations) and another disadvantage 29 (the inability to prove that the Decedent acquired good title) and, therefore, need not prove a change in position as well. C. Equity Favors the Estate. The Second Department improperly substituted its judgment for that of the Surrogate's Court when it ruled that the equities favor the return of the tablet to the Museum over its retention by the Estate. "A determination of the applicability of the defense of laches is left to the discretion of the trial judge," and should not be set-aside when it is supported by the record. Goodfarb v. Freedman, 76 A.D.2d 565, 573,431 N.Y.S.2d 573,578 (2d Dep't 1980) (holding that the Supreme Court's determination with respect to laches was "well supported by the record"); see also 55 N.Y. Jur. 2d Equity § 17 ("Laches, as an issue, is addressed to the sound discretion of the trial court"). As the Surrogate correctly noted, In the case at bar, the museum did not act even after it was provided with reasonably reliable information concerning the tablet's whereabouts in 1954. 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 30 the circumstances in which the doctrine of laches must be applied. The Second Department, however, improperly and erroneously reversed the exercise of discretion of the Surrogate without explaining how the Surrogate's determination of discretion was not supported by the Record. POINT II THE SURROGATE ERRED IN DETERMINING THE MUSEUM HAD TITLE TO THE TABLET A. The Burden of Proof and Production. The rule is clear; to prevail on a cause of action for replevin, the plaintiff must satisfy its burden of showing either legal ownership (title), or an immediate superior right of possession to a specific identifiable thing. Batsidis v. Batsidis, 9 A.D.3d 342, 778 N.Y.S.2d 913 (2d Dep't 2004) (denying claims for replevin and conversion where the plaintiff "failed to show that they had title, possession, or control of the funds alleged to have been converted or that they had a superior right to the property at issue"). Further, legal ownership or "superior right to possession" cannot merely exist at some time in history, but must be an "immediate" right existing at the time of commencement of the action. See Dubied Mach. Co. v. Vermont Knitting Co., Inc., 739 F Supp 867, 872 (S.D.N.Y. 1990) (sitting in diversity and applying New 31 York law) ("To establish a cause of action under CPLR Article 71, plaintiff 'must show that [it] has an immediate and superior right to possession of the [goods].'"). B. The Museum Cannot Demonstrate Title to the Tablet. As a preliminary matter, the Museum did not, contrary to the Surrogate's Court finding, submit any documentary evidence relating to the title of the Tablet. A review of the trial transcript demonstrates not only the absence of such evidence, but also that such documents may not exist. (R. at 166-169.) The Court is respectfully referred to those pages of the trial transcript. Specifically, when the Director of the Museum was asked at trial whether she had seen or had documents in her possession indicating that the Museum had permission to excavate the tablet from land then controlled by Turkey, she replied, "[n]ot personally". Id. Accordingly, the Museum failed to even demonstrate that it had a superior right of possession when the Tablet was excavated, much less that it maintained that superior right of possession at the time of the replevin action. 1. Russia Likely Claimed the Tablet as Spoils of War. Even assuming, arguendo, that the Museum could show it once had title, it cannot prove that it maintained title (1) when the Tablet went missing or (2) at the time the instant action began. Whatever right of possession the Museum may have had to the item, which itself has not been demonstrated, that right may have been 32 lost to a foreign sovereign upon that sovereigns taking of the Tablet from Germany. The pillaging of cultural works and artifacts in Poland and France, discussed supra, was a foreshadowing of what was to occur in Russia. Karl E. Meyer, "Who Owns the Spoils of War?", Archeology, July-Aug. 1995, at 46 ("Not since the Goths and Vandals had Europe witnessed so spiteful an assault on other people's cultural treasures."). Within weeks of Hitler's Blitzkrieg, in June 1941, German forces occupied Czarist palaces near Leningrad. NICHOLAS, supra, at 185-86. At the palace of Catherine the Great, the Germans dismantled the Amber Room, a great chamber whose walls were lined with amber given to Peter the Great by Frederick-William II of Prussia. RUSSEL CHAMBERLIN, LOOT! THE HERITAGE OF PLUNDER 186-87 (1983); Depta, supra, at 375. By November 1943, the Russians had regained strength and the Nazis were in retreat. Retribution quickly followed: [A]n edict of an Emergency State Committee authorized the removal of state and private libraries and art collections [from Germany] to Russia. A Trophy Commission was formed to comb castles, bunkers, salt mines, and caves in which Germans had hidden their own treasures as well as looted foreign art. [Ironically] a new vision had taken hold in Moscow: the postwar creation of a great Museum of World Art to be filled with works seized as compensation for Nazi vandalism. 33 Meyer, supra, at 48; Depta, supra, at 375. In January 1945, Josef Stalin signed a directive authorizing the massive removal of cultural property for the museum. Id. A flood of art subsequently poured into Russia. Id. at 49. The Museum is well aware of the Trophy Commission. [Mr. Schlesinger:] Are you familiar with the Russian Trophy Commission? [Museum's Director:] Do you mean the Russian troops that brought the objects to Russia? [Mr. Schlesinger:] Did Russian troops remove objects from your museum at the end of the war? [Museum's Director:] Yes, there is proof, evidence that the Russian troops took objects from our museum in 1945 and 46 and brought them to Russia, and then brought them back in the year 1957. [Mr. Schlesinger:] All of them? [Museum' s Director:] No. (R. at 174.) The Museum cannot state with any degree of certainty whether or not the Tablet was one of the items taken. [Mr. Schlesinger:] Did they give you a record of which objects they took in 1945 and in 46? 34 [Museum's Director:] No, they did not give these lists that they made over to the Germans. [Mr. Schlesinger:] And do you have a record that says that this Tablet... wasn't taken by the Russian troops? [Museum's Director:] No, there's no records indicating that. (R. at 174-76.) In fact, the Tablet is alleged to be part of a set of four, three of which are missing with no records as to where they went or by whom they were taken. [Mr. Schlesinger:] By the way, the museum had four of these types of tablets in its inventory prior to the war; is that correct? [Museum's Director:] Yes. [Mr. Schlesinger:] And three of them are no longer in the possession of the museum? [Museum's Director:] Yes. [Mr. Schlesinger:] the other two? Do you know what happened to [Museum' s Director:] No. 35 [Mr. Schlesinger:] end of World War II? Did they also go missing at the [Museum's Director:] Yes. [Mr. Schlesinger:] And also at the end of World War II when the Russians came in, you lost a lot of other gold and jewelry and valuable objects; is that correct? [Museum's Director:] Yes, that's correct, but I wouldn't stick this onto the Russian troops, because before that, there were German troops and also people who lost their homes. (R. at 176-77.) Therefore, it may be assumed that the Tablet was taken by Russian troops, and as such, Germany's claim would be extinguished under international law. This conclusion could have been verified if the Museum had not delayed over half a century in making its claim. 5 2. The Museum Lost any Claim to Title and All Rights to Possession of the Tablet. As history demonstrates, and as the Supreme Court of the United States expounded, much like the high Courts of nearly all other nations, international law favors title by conquest. See Johnson v. M'Intosh, 21 U.S. 543 (1823) (discussing title by conquest as historical European tradition). 5 Parenthetically, this scenario can now never be shown, by either the Museum or the Estate, due to the unavailability of the Decedent's testimony. 36 On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire... But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. Id. at 572-73. The director of New York's Metropolitan Museum of Art, Philippe de Montebello, notes that, "history is unfair, but it always has been. Must every historical cycle be undone?" Depta, supra, at 379. For the purpose of determining whether a Spoils of War claim would negate the Museum's claim of title and any right of possession, it is the law of Russia, and its predecessors in interest, including the Soviet Union, that is applicable. Since the Museum and the Tablet were, in or about 1945, located in Berlin's eastern quarter, which was occupied and legally controlled by Russia's predecessors, Russia has clearly stated that the cultural property taken by Russian authorities from Germany during the Russian occupation of Berlin after World War II was transferred to Russia "lawfully." KONSTANT1N AK1NSHA & GRIGORII KOZLOV, 37 BEAUTIFUL LOOT: THE SOVIET PLUNDER OF EUROPE'S TREASURES 253 (1994); Depta, supra, at 387. The Russian government bases its position on a Russian legal opinion which was prepared in 1994 by the Institute of State and Law of the Academy of Sciences. Id. at 253. This document argues that the looting of Germany was legal because virtually every nation has done it. Id. "The Institute's experts explained that the Allied Control Council, the governing body of defeated Germany, had recognized the 'compensations principle of restitution'-the right of countries looted by the Nazis to take German property as compensation." Id. The decision by Russia to keep the items collected by the Trophy Commission, is no different than the position taken by the Romans, Napoleon, Elgin, Hitler, and the United States of America to name a few. "Throughout history, victors in war have justified their plunder of the art of conquered nations with the belief that a 'strong nation has a natural right to the cultural goods of a weaker [one].'" CHAMBERLIN, supra, at 186-87; Depta, supra, at 375. The ancient Romans, for example, seized loot not so much for its inherent value, but rather as a symbol of their triumph. WILHELM TREUE, ART PLUNDER: THE FATE OF WORKS OF ART IN WAR AND UNREST 13 (Basil Creighton trans., 1961). Thus, Rome became a 'vast museum' of Greek, Egyptian, and Asia Minor art work. Id. 38 Similarly, with his acute awareness of history, Napoleon followed the example set by the ancient Romans and added "cultural plunder to military triumph." CHAMBERLIN, supra, at 134. When he conquered Rome, he "took symbolic possession of its treasures rather like a savage eating the heart of a noble enemy in order to ingest his powers." Id. Napoleon had masterpieces and treasures paraded triumphantly through the streets of Paris to celebrate his Italian victories. NICHOLAS, supra, at 122. Similarly, when his armies swept through Germany, they seized not only paintings, gems, and stained glass, but also Charlemagne's tomb. Id. at 141. The Russian Parliament, recognizing that historical precedent supported their position, drafted important legislation concerning the trophy art. Meyer, supra, at 52. As drafted, the legislation would make all the art work currently in Russian museums the national property of Russia, regardless of origin. Id. These laws would make the return of any art work impossible because the treasures would become part of Russia's national heritage. Id. History demonstrates that Russia owns the trophy art. Not only has history set the example, but history supports giving Russia title through the international law doctrine of prescription. S. Shawn Stephens, The Hermitage and Pushkin Exhibits. An Analysis of the Ownership Rights to Cultural Properties Removed from Occupied Germany, 18 Hous J. INT'L L. 59, 61 (1995). 39 Prescription stands for the principle that ownership rights in possessed property strengthen with the passage of time. Id. at 97. A "Statute of Limitations" has been met within the past fifty years, strengthening Russia's ownership claim to the art work. Id. Another reason the Russian Army's removal of art from Germany was not "unlawful" is that no German state existed immediately following Hitler's defeat (Meyer, supra, at 52; Depta, supra, at 387), and certainly not one recognized by the United States of America. Upright v. Mercury Bus. Machines Co., 24 Misc. 2d 571, 572-73, 203 N.Y.S.2d 288, 289-90 (N.Y. Sup. Ct., N.Y. Cty. 1960) ("[T]he recognition [the Democratic Republic of Germany] is barred by the foreign policy of the United States Government"). lawfully transferred to Russia. More specifically, victory made the Allies successors to Germany, Russia was the legitimate governing power in the occupied zone, Museum was located. Stephens, supra, at 13; Depta, supra, at 387. Therefore, title to the art subsequently and and where the Because Russia became the state successor to the portion of Germany it occupied, it was entitled to the cultural property within that zone. Its zone just happened to be where the art works were found. Id. As it was the legal successor in that zone, it acts against its own Museums are not subject to review, meaning the Russian Trophy Committee's legality must be assumed. 40 Under the act of state doctrine, the courts of the United States, whether state or federal, will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles .... Sabbatino, 376 U.S. at 428. The doctrine "arises out of the basic relationships between branches of government in a system of separation of powers," and "expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pursuit of goals ... in the international sphere." Id. at 423. Under this doctrine, the validity of the foreign state's act may not be examined "even if the complaint alleges that the taking violates customary international law," id. at 428, or the foreign state's own laws, see id. at 415 n. 17 ("The courts below properly declined to determine if issuance of [Cuba's] expropriation decree complied with the formal requisites of Cuban law."). "[W]hen it is made to appear that the foreign government has acted in a given way ... the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision." Ricaud v. American Metal Co.., 246 U.S. 304, 309, 38 S.Ct. 312, 62 L.Ed. 733 (1918); see also W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990) ("The act of state doctrine ... requires that, in the process of deciding [a case or controversy], the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid."). 41 Konowaloff v. Metro. Museum of Art, 11-4338-CV, 2012 WL 6573898 (2d Cir. Dec. 18, 2012). Thus, the Museum was deprived of title to the Tablet at the time of its taking by the Russian Trophy Commission (then its own government) and therefore has no claim to its return. Russia supports its position not only with legal precedent but with historical analogy. During the seventeenth and eighteenth centuries, the capture of a state during wartime gave the victor valid title to all property of a defeated country through the doctrine of uit possidetis. Id__•. Russia had promised to return property illegally removed, "but since everything was legally removed, Russia was not obliged to return anything." Id. C. The Museum Has Failed To Meet Its Burden. The rule is clear; to prevail on a cause of action for replevin, the plaintiff must satisfy its burden of showing either legal ownership (title), or an immediate superior right of possession to a specific identifiable thing. Batsidis v. Batsidis, 9 A.D.3d 34:2, 778 N.Y.S.2d 913 (2d Dep't 2004). In addition, that legal ownership or "superior right to possession" cannot merely exist at some time in history, but must be an "immediate" right existing at the time of commencement of the action. See Dubied Mach. Co. v. Vermont Knitting Co., Inc., 739 F Supp 867, 872 (S.D.N.Y. 1990). 42 The Museum has failed to demonstrate that it properly acquired title to the Tablet, or that it remained in legal title and continued to have a superior right of possession after the Russian occupation. Demonstrating legal ownership or a superior right of possession is entirely the Museum's burden, and the Museum has not met that burden. Thus, if the Tablet was first taken by Russian authority, the Museum's title, if any, and right of possession, was permanently extinguished. As such, the Museum has not, and indeed cannot demonstrate title or a right of possession superior to that of the Decedent. POINT III THE AMICUS POSITIONS HAVE NO MERIT The Amici are the Archaeological Institute of America ("AIA"), the American Schools of Oriental Research ("ASOR"), the Holocaust Art Restitution Project ("HARP"), the Israelitische Kultusgemeinde Wien ("IKG"), the Lawyers' Committee for Cultural Heritage Preservation ("LCCHP"), the Monuments Men Foundation for the Preservation of Art ("MMF"), the Penn Cultural Heritage Center at the University of Pennsylvania ("PCHC"), the United States Committee of the Blue Shield ("USCBS"), the State of Baden-Wfirttemberg of the German Federal Republic ("State of B-W"), the Republic of Cyprus ("Cyprus"), and, ironically, the Republic of Poland ("Poland"). 43 The Amici fundamentally misunderstand the arguments of the Estate and, as a result, try to apply the law of 2012 to the events of 1945. Notably, as demonstrated herein, the Executor does not ask this Court to adopt the spoils of law doctrine as the current law for this land or any other. Instead, it merely asks the Court to recognize that the Spoils of War doctrine was the prevailing law at the time of the taking and the prevailing law in the nations relevant to the taking at that time (Russia and East Germany). To suggest that the law today is to be retroactively applied would require the United States to forfeit its territorial possessions such as California seized from Mexico. The Amici focus their efforts on demonstrating the policy of the United States of America with regard to looting and legality and legitimacy of the removal of cultural objects from one country to another. This very focus, however, misses the point. To prevail, the Estate need not address or demonstrate that removal of the Tablet by Russia would be legal under today's law, in today's international climate, or under the general principles of domestic or foreign law. Rather, the sole issue, which the Amici fail to address, is whether the removal of cultural obiects was legal at the time Russia may have taken the Tablet. The clear reason they do not address it is because they must concede that the law in effect in 1945 and 1946 in East Germany permitted it. 44 When analyzing whether Russia's possible taking of the Tablet was legal, two points must always be kept in mind. First, the issue is one to be resolved under Russian law in effect at the time of its conquest of Germany, not the law of the United States. Second, it must be recognized that, no matter how hard it tries to be a branch of the Federal Republic of Germany, the Museum is a private actor. See Metro. Museum Historic Dist. Coal. v. De Montebello, 3 Misc. 3d 1109(A), 787 N.Y.S.2d 679 (N.Y. Sup. Ct., N.Y. Cty. 2004) (holding that "however important its cultural purpose" a Museum does not "perform services that have been recognized as a governmental function"), affd sub nom. Metro. Museum Historic Dist. Coal. v. De Montebello, 20 A.D.3d 28, 796 N.Y.S.2d 64 (lst Dep't 2005). The Museum must agree, since it elected to bring its claims to the Courts of this State rather than through diplomatic channels as one might expect. The Amici begin their submission with references to the Lieber Code, "drafted for the Union Army by Francis Lieber at the request of Abraham Lincoln in 1863." Amici Submission at 3. It seems that the Amici wish to abandon the law applicable to the 1945 military act of Russia against the fallen Third Reich, in favor of a policy that President Abraham Lincoln developed to address an inherently domestic conflict in 1863. 45 The Amici then move to the Hague Convention of 1899, and 1907, but fail to disclose that those Conventions were signed by His Majesty the Emperor of Germany, King of Prussia. It is unclear whether, when the Third Reich took power, Germany remained bound by those Conventions. However, presumably, Germany, based upon its subsequent returns, took the position that it was not bound. Surely, it acted as if it had not been bound, or, if originally bound, then it abrogated its rights under those treaties by act and deed. It is beyond peradventure that Nazi Germany, from the Polish border to the gates of Moscow, asserted their own entitlement to the Spoils of War. Similarly, the Conventions were ascribed by the Czar of Russia, and it is unclear whether Russia remained bound by the acts of the Czar, after the Soviet revolution, but the acts of Nazi Germany in abrogating those conventions clearly entitled Russia to assert their entitlement to the Spoils of War. Russia duly and lawfully deemed that it was entitled to the spoils of war. Similarly, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict has no application to Russia's possible taking of the Tablet. The Tablet was determined to be missing when the Museum inventoried its contents in or shortly after 1945. The 1954 convention was signed by Russia in 1957, by Germany in 1967, and while the United States signed the Treaty in 1954, it was not ratified by the Unites States Senate until 2009. Surely the Treaty can have no retroactive application to a government taking that occurred 46 prior to its drafting. Indeed, had the Museum brought its claim in a timely manner the 1954 Convention would not have been the law in Russia (1957), or in Germany (1967), or in the United Stated (2009). Thus, we are left only with 1945-1946 Russian law relevant to the taking that occurred by Russia, a taking which was from the then Democratic Republic of East Germany, an area controlled by Russia and completely under its law and rules. Because Russia became the state successor to the portion of Germany it occupied, it was entitled to the cultural property within that zone. Its zone just happened to be where Tablet was located. As demonstrated above, current law and Russia itself has both clearly stated that the cultural property taken by Russian authorities from Germany during the Russian occupation of Berlin after World War II was transferred to Russia "lawfully. ''6 KONSTANT1N AKINSHA & GRIGORII KOZLOV, BEAUTIFUL LOOT: THE SOVIET PLUNDER OF EUROPE'S TREASURES 253 (1994); Depta, supra, at 387. Another reason the Russian removal of art from Germany was not "unlawful" is that no German state existed immediately following Hitler's defeat (Meyer, supra, at 52; Depta, supra, at 387), and certainly not one recognized by the United States of America. Upright v. Mercury Bus. Machines Co., 24 Misc. 2d 6 That Russia may have thereafter voluntarily returned some of this property has no bearing on the fact that it has no legal obligation to do so. 47 571, 572-73, 203 N.Y.S.2d 288, 289-90 (N.Y. Sup. Ct., N.Y. Cry. 1960) ("[T]he recognition [the Democratic Republic of East Germany] is barred by the foreign policy of the United States Government"). Therefore, title to the art subsequently and lawfully transferred to Russia. Accordingly, the Amicus Positions have no merit. CONCLUSION Based on the foregoing, the Appellate Order should be reversed and the Decision and Order of the Surrogate's Court, Nassau County, should be reinstated as modified by the deletion of that branch of the Surrogate's Order which held that the Museum has title to the Tablet• Garden City, New York January 7, 2013 Dated: By: JASPAN SCHLESINGER LLP A ttorneys for Appellant Hannah Flamenbaum •er, Esq. 300 Garden City Plaza Garden City, New York 11530 (516) 746-8000 D#860124 48