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: RAYMOND J. DOWD (Time Requested: 30 Minutes) Surrogate’s Court, Nassau County Clerk’s Index No. 328146 Appellate Division — Second Department Docket No. 2010-04400 Court of Appeals of the State of New York 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, Respondent, – against – HANNAH K. FLAMENBAUM, Appellant, – and – ISRAEL FLAMENBAUM, Respondent. BRIEF FOR RESPONDENT VORDERASIATISCHES MUSEUM DUNNINGTON, BARTHOLOW & MILLER LLP 1359 Broadway, Suite 600 New York, New York 10018 Tel.: (212) 682-8811 Fax: (212) 661-7769 HAMBURGER, WEINSCHENK & FISHER 36 West 44th Street, Suite 1409 New York, New York 10036 Tel.: (212) 719-5930 Fax: (212) 840-0825 Attorneys for Respondent Vorderasiatisches Museum Date Completed: March 1, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................. iv I. PRELIMINARY STATEMENT .................................................................. 1 II. COUNTERSTATEMENT OF QUESTIONS PRESENTED….. ................ 8 III. BRIEF COUNTERSTATEMENT OF THE FACTS ................................. 10 IV. PROCEDURAL HISTORY ....................................................................... 13 V. APPLICABLE LEGAL STANDARDS ..................................................... 17 A. Standard Of Review Of Appellate Division Order .............................. 17 B. Legal Standard Of The Act Of State Doctrine… ................................. 18 C. Legal Standard Of Preemption…. ........................................................ 19 D. Legal Standard Of The Foreign Sovereign Immunities Act…. ........... 19 E. Legal Standard Of Laches Under New York Law .............................. 19 VI. SUMMARY OF ARGUMENT .................................................................. 20 VII. ARGUMENT….. ......................................................................................... 22 POINT I: THE APPELLATE DIVISION’S ORDER WAS CORRECTLY DECIDED BECAUSE FEDERAL LAW MANDATES THE RETURN OF READILY-IDENTIFIABLE CULTURAL PROPERTY OF A FOREIGN SOVEREIGN STOLEN DURING WORLD WAR II, PARTICULARLY WHERE, AS HERE, BOTH THE MUSEUM’S OWNERSHIP AND THE TABLET’S 1945 THEFT WERE WIDELY PUBLICIZED BY SCHOLARS ..... 22 ii A. Judicial Restraint As Embodied In The Act Of State Doctrine Precludes Any Testing Of A Sovereign’s Actions By The Public Policy Of The Forum State, Accordingly, Scrutiny Of The Museum’s Post-1945 Collection Maintenance Practices Or Diligence In Pursuing Stolen Property Is Inappropriate ...................... 22 B. U.S. Treaty Obligations To Return Cultural Property Stolen From Foreign Sovereigns, New York’s Lack Of Clear Guidelines For New York Museums That Are Victims Of Theft And New York’s Strong Public Policy Against Being A Haven For Stolen Art Outweigh Any Purported Equitable Interest Asserted By The Executor ............................................................................................... 24 1. The 1954 Hague Convention and 1970 UNESCO Treaty provide strong federal public policy in favor of returning stolen cultural property ........................................ 24 2. Since New York has no clear guidelines for New York museums to recover stolen property, as found in Guggenheim v. Lubell, as a matter of judicial restraint its courts should not set guidelines for or criticize foreign museums…. ............................................................ 27 3. New York’s strong public policy favoring the return of stolen art enunciated in Guggenheim v. Lubell outweighs equitable arguments raised by the Executor ...... 28 C. Because The Museum Promptly Claimed That The Tablet Was The Property Of A Foreign Sovereign, The Museum Did Not Waive Its Claims That The Tablet Is Immune From Seizure ............. 29 POINT II: THE APPELLATE DIVISION CORRECTLY HELD THAT THE EXECUTOR FAILED TO ESTABLISH LACHES ................. 30 A. Since The Record Is Devoid Of Evidence That The Museum Knew Or Should Have Known Of the Tablet’s Whereabouts, The Executor Failed To Establish Laches ................................................... 31 iii B. Since The Museum’s Ownership Of the Unique And Readily- Identifiable Tablet And Its Theft Have Been Publicly Published For Decades, The Executor Could Not Have Been Prejudiced By Any Purported Inaction of the Museum ............................................... 39 C. The Executor’s Unclean Hands And Concealment Of The Tablet For Decades Preclude Any Invocation Of Equity ............................... 42 D. The Appellate Division Correctly Found That The Equities Favor The Return Of The Tablet To The Museum ....................................... 44 POINT III: THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S ORDER BECAUSE THE APPELLATE DIVISION CORRECTLY DISMISSED THE EXECUTOR’S CROSS-APPEAL ............................................................................. 45 VIII. CONCLUSION .......................................................................................... 49 iv TABLE OF AUTHORITIES Page(s) FEDERAL CASES Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir. 1990) .............................................................................. 41 Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010) ......................................................................... 42, 47 Eppendorf Netheler Hinz GMBH v. Nat’l Scientific Supply Co., Inc., 14 Fed.Appx. 102, 2001 WL 798844 (2d Cir. 2001) ......................................... 42 Kamat v. Kurtha, 2008 WL 5505880 (S.D.N.Y. Apr. 14, 2008) .............................................. 20, 38 Sotheby’s Inc. v. Shene, 2009 WL 762697 (S.D.N.Y. Mar. 23, 2009) ................................................ 19, 38 Von Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir. 2009) .............................................................................. 24 STATE CASES 855-79 LLC v. Salas, 40 A.D.3d 553, 837 N.Y.S.2d 631 (1st Dept. 2007) .................................... 41, 43 Aboujdid v. Singapore Airlines, Ltd., 67 N.Y.2d 450, 494 N.E.2d 1055 (1986)...................................................... 19, 29 Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 N.Y.3d 115, 818 N.Y.S.2d 161 (2006) ...................................................... 17, 48 Brown v. Michelin Tire Corp., 204 A.D.2d 255, 611 N.Y.S.2d 594 (2d Dept. 1994) ......................................... 42 Matter of E.S. v. P.D., 8 N.Y.3d 150, 831 N.Y.S.2d 96 (2007) ........................................................ 17, 48 Felt v. Olson, 51 N.Y.2d 977, 435 N.Y.S.2d 708 (1980) .................................................... 17, 48 v French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 295 N.Y.S.2d 433 (1968) ...................................................... 18, 22 Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 804 N.Y.S.2d 719 (2005) ............................................................ 17 Glenn v. Hoteltron Sys., 74 N.Y.2d 386, 547 N.Y.S.2d 816 (1989) .............................................. 17, 31, 36 H & J Blits, Inc. v. Blits, 65 N.Y.2d 1014, 494 N.Y.S.2d 99 (1985) .......................................................... 18 Lamont v. Travelers Ins. Co., 281 N.Y. 362 (1939)… ....................................................................................... 29 Lucenti v. Cayuga Apts., 48 N.Y.2d 530, 423 N.Y.S.2d 886 (1979) .......................................................... 18 Matter of Gallagher, 81 A.D.3d 825, 916 N.Y.S.2d 804 (2d Dept. 2011) ........................................... 46 Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (N.Y. Sup. 1966) ....................................... 47 Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 (2d Dept. 2010) ........................................... 45 Matter of Mizugami v. Sharin W. Overseas, 81 N.Y.2d 363, 599 N.Y.S.2d 480 (1993) .................................................... 19, 26 Perez v. Chase Manhattan Bank, 61 N.Y.2d 460, 474 N.Y.S.2d 689 (1984) .................................................... 18, 22 Matter of Peters v. Sotheby’s Inc., 34 A.D.3d 29, 821 N.Y.S.2d 61 (1st Dept. 2006) .............................................. 38 Rosman v. Trans World Airlines 34 N.Y.2d 385, 358 N.Y.S.2d 97 (1974) ...................................................... 19, 26 Matter of Rothko, 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977) .................................................... 17, 48 vi Skrodelis v. Norbergs, 272 A.D.2d 316, 707 N.Y.S.2d 197 (2d Dept. 2000) ......................................... 19 Solomon R. Guggenheim Found. v. Lubell, 153 A.D.2d 143, 550 N.Y.S.2d 618 (1st Dept. 1990) ........................................ 41 Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623 (1991) ...................................................passim Tappan Motors v. Volvo of Am. Corp., 64 N.Y.2d 1116, 490 N.Y.S.2d 168 (1985) ........................................................ 17 Trenton Banking Co. v. Duncan, 86 N.Y. 221 (1881) ....................................................................................... 37, 40 Wertheimer v. Cirker’s Hayes Stor. Warehouse, 300 A.D.2d 117, 752 N.Y.S.2d 295 (1st Dept. 2002) ........................................ 37 FEDERAL STATUTES 18 U.S.C. § 2315 ...................................................................................................... 25 19 U.S.C. § 2601 et seq. .......................................................................................... 25 28 U.S.C. § 1603 ...................................................................................................... 29 28 U.S.C. § 1604 ................................................................................................ 19, 29 STATE STATUTES CPLR 5501(b)-(c) .................................................................................................... 17 CPLR § 5511 ............................................................................................................ 45 N.Y. Penal Law § 165.40 (McKinney) .................................................................... 25 CONSTITUTIONAL PROVISIONS N.Y. CONST. ART. VI, § 3 ........................................................................................ 17 INTERNATIONAL TREATIES 1954 Hague Convention on the Protection of Cultural Property During Armed Conflict, 249 U.N.T.S. 215 ........................................................ 8-9, 24-25 vii 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Transport, Export, and Transfer of Ownership of Cultural Property.. ............................................................................................................. 25 OTHER AUTHORITIES Arthur Krager, The Powers of the New York Court of Appeals (2005 Revised 3d Ed.) ........................................................................................................... 17, 18 A.K. Grayson, Assyrian Rulers of the Third and Second Millennia B.C. (to 1115), The Royal Inscriptions of Mesopotomia: Assyrian Periods, Vol. 1 (Toronto: University of Toronto Press, 1987). ................................................... 34 A.K. Grayson, “Antiquities from Ashur: A Brief Description of Their Fate with Special Reference to the Royal Inscriptions,” Annual Review of the Royal Inscriptions of Mesopotomia Project 1 (1983) ........................................ 33 Micah Goodman, After the Wall: The Legal Ramifications of the East German Border Guard Trials in Unified Germany, 29 CORNELL INT’L L.J. 727 (1996) .................................................................................................... 11 Norman M. Naimark, The Russians in Germany: A History of the Soviet Zone of Occupation, 1945-1949 (Belknap Press, 1995) ..................................... 11 David Pike, The Politics of Culture in Soviet Occupied Germany: 1945-1949 (Stanford University Press, 1992) ....................................................................... 12 1 I. PRELIMINARY STATEMENT This is an appeal of the Appellate Division, Second Department’s (Skelos, J.P., Eng, Belen, and Cohen, JJ.) (“Appellate Division”) order and judgment dated May 30, 2012 (the “Appellate Division Order”) which reversed a decision and order of the Honorable John B. Riordin, Judge of the Surrogate’s Court of the State of New York, Nassau County, dated March 30, 2010. The Appellate Division Order correctly directs the return of a priceless unique gold tablet signed by the Assyrian King Tukulti-Ninurta I (“the Tablet”) to a public museum owned and operated by the Federal Republic of Germany (the “Museum”). This decision correctly resolves a mystery created in 1945, when, at the close of World War II, the Russian army occupied East Berlin, and the Tablet went missing. (R. 177-178).1 The Tablet is unique; there is only one object in the world of its type signed by Assyrian King Tukulti-Ninurta I in 1200 B.C. (R. 89-92, 95). The Tablet’s 1913 excavation from the Temple of Ishtar was photographed and published internationally to scholars and the Tablet’s unique markings have been republished in photographs known to Assyrian scholars at least since 1914. (R. 93). The “R. __” refers to page numbers in the Record on Appeal, certified on January 2, 2013, submitted to this Court by the Executor on January 7, 2013. 2 Tablet’s 1945 loss from the Museum was documented and widely published to scholars worldwide. (R. 87-95). On or about April 20, 2006, when Objectant-Respondent Israel Flamenbaum (“Objectant” or “Israel”), one of the heirs of Riven Flamenbaum (“Decedent” or “Riven”), a deceased resident of Nassau County, informed the Museum that the Tablet, belonging to the Museum, was the subject of an estate proceeding in New York. (R. 46). The Museum acted immediately to identify and reclaim the Tablet, making a demand pursuant to Section 1803 of the Surrogate’s Court Procedure Act (“SCPA”) on Petitioner-Respondent Hannah K. Flamenbaum (“Executor” or “Hannah”). (R. 48-49). The Executor failed to respond to the Museum’s demand, failed to serve any pleadings, and failed to raise any affirmative defenses. (See R. 112-114). At a hearing only the Museum’s director testified and the Museum’s expert’s report was stipulated in lieu of testimony. (R. 9, 185). Since no one from the Estate testified, it is today a mystery of how and when Israel Flamenbaum learned that the Tablet belonged to the Museum. Both the Surrogate’s Court and the Appellate Division correctly concluded that the Museum has title to the Tablet, which has been published as the Museum’s property for decades but is currently in the possession of the Executor. (R. 1C, 6-7). The Surrogate erred by concluding that the Museum’s claims were barred by laches. 3 In reversing the Surrogate’s laches determination, the Appellate Division correctly determined that the Executor failed to meet its burden of proving the affirmative defense of laches. (R. 1B-1C). In reversing the Surrogate’s decision, the Appellate Division corrected a critical factual error committed by the Surrogate. The Surrogate overlooked uncontradicted testimony and misinterpreted evidence from the Museum’s records demonstrating that the Museum had no knowledge of the Tablet’s whereabouts from 1945 through 2006. See infra Point II.A. The Appellate Division specifically corrected this factual error, correctly read the Museum record, and reversed the Surrogate’s erroneous finding that the Museum had learned of the Tablet’s whereabouts in 1954. (R. 1B). The Appellate Division’s correction of this factual error is supported by the weight of the evidence. Accordingly, the Executor’s factual arguments to the contrary, which constitute the primary basis for this appeal, should be rejected. The Executor’s Brief relies almost entirely on the Surrogate’s clearly erroneous misreading of the evidentiary record and on impermissible inferences that the Surrogate drew from the Executor’s failure to present any affirmative case. The Appellate Division’s reassessment of the record was correct and should remain undisturbed by this Court. The Surrogate’s errors were twofold. First, the Surrogate misread a museum record and mistakenly imputed knowledge of the Tablet’s location to the Museum. The Record contains a 4 museum record (English translation at R. 195; original German record at 193). This museum record contains a notation showing that a 1983 Canadian scholarly Assyriology publication recorded an oral reporting of a 1954 sighting of the Tablet at an unnamed location in New York (R. 89-90). The Surrogate erroneously surmised that the Museum knew of the 1954 sighting in 1954 and from this purported 1954 sighting surmised that the Museum knew of the Tablet’s location prior to 2006. The Executor’s arguments based on the Museum’s purported 1954 knowledge of the Tablet’s location (Executor Br. at 4, 15-22) are thus directly contradicted by all of the evidence in the record. As set forth in more detail at Point II.A below, the Appellate Division’s reading of the evidentiary record is thus correct. Second, the Surrogate erred by inferring prejudice to the Executor from an evidentiary record that is simply blank. Indeed, there was no prejudice. The Museum listed the missing property (R. 122, 129-30), scholarly reports were published (R. 87-95), and so the world was on notice. Further, as set forth more fully in Point II.B below, the Executor presented no case or evidence whatsoever. Laches is an affirmative defense on which the Executor bore the burden of proof. Neither Israel nor Hannah Flamenbaum presented any evidence even suggesting that Decedent did not know the Tablet was the Museum’s property. Indeed, Israel’s objections to Hannah’s accounting, which may be considered judicial 5 admissions, establish that Israel knew that the Tablet was the Museum’s property. (R. 44-47). The only permissible inference from Israel’s failure to testify is an adverse one: that he has known of the Tablet’s provenance for decades. The Executor failed to present any evidence to rebut Israel’s accusations that she tried to cheat him on the accounting by calling the Tablet a gold coin and valuing it at its weight in gold (R. 19-43). Thus, there is no evidence of prejudice in the record and indeed compelling evidence of unclean hands. Further, the Executor’s “spoils of war” theory is entirely without merit, as set forth in the Amici brief submitted by the Archaeological Institute of America and other well respected institutes, committees, and foreign governments.2 The Museum advances three main arguments on this appeal. First, this Court should affirm because once the Surrogate correctly determined that the Tablet was the Museum’s missing property, the act of state doctrine, applicable U.S. foreign policy and treaties and New York’s strong public policy provide compelling grounds for judicial restraint in considering the laches defense against a foreign sovereign under the circumstances at bar. The Surrogate’s finding that the Museum is a “national museum” (R. 8) is uncontested on this appeal. Further, the Museum director’s testimony that the Museum is owned by the German state is uncontroverted on this Record. (R. 159). 2 The Museum incorporates by reference as if fully set forth herein the Brief of Amici Curiae, Archaeological Institute of America, et al., dated January 4, 2013. 6 Indeed, to conduct a laches inquiry would involve an inappropriate inquiry into a foreign sovereign’s diligence in protecting its right on its sovereign territory. The inappropriateness of a New York court setting standards for a German museum’s conduct is compounded here because New York has not subjected its own museums to any specific diligence standard for searching items missing from their collections. Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 320, 567 N.Y.S.2d 623 (1991) (“Guggenheim II”). This Court should give clear guidance in this area to assure that New York courts are not tied up with possessors of stolen property, blaming the victims and engaging in fact-intensive inquiries where the rule of law and the overwhelming U.S. foreign policy and New York public policy considerations are clear. By permitting a laches defense in these circumstances, New York is inviting its citizens to throw mud at a foreign sovereign in violation of the act of state doctrine. Even worse, in applying misguided notions of equity, the lower courts appear not to recognize that the Museum’s true owner, the Federal Republic of Germany, was ousted of possession and control of the Museum during the period of Soviet Occupation. If New York does not clarify that true owners of missing property will have their rights respected in a dignified fashion, New York will indeed become a haven for stolen property. 7 Second, this Court should affirm because the Appellate Division correctly determined that the Executor failed to meet its burden of proving laches. The Record contains only undisputed evidence that the Museum had no knowledge of the Tablet’s whereabouts prior to 2006. As the Appellate Division correctly determined: In 2003, Riven Flamenbaum died in possession of the tablet. Neither his will nor the accounting filed by the executor of his estate made specific mention of the tablet. During the instant accounting proceeding, Riven Flamenbaum’s son, Israel Flamenbaum, filed objections to the accounting and informed the museum of the possession of the tablet by the estate, which was the first time since 1945 the museum had direct knowledge of the tablet’s whereabouts. (R. 1B). Further, the Tablet was photographed in 1913 when it was excavated, the photos have been published in scholarly works since then and reports of its 1945 disappearance was published in scholarly journals. (R. 87-95). The Tablet itself was a unique object: there was only one signed by King Tukulti-Ninurta I in 1200 B.C. (R. 82-92, 95). A simple check would have revealed this to any possessor and therefore the Executor can show no prejudice flowing from any purported delay by the Museum. Perhaps most importantly, neither the Executor nor Objectant ever testified as to when and how they learned that the Tablet was the Museum’s property and why the Tablet was concealed from public view for over forty years. This concealment is evidence of unclean hands that defeats any laches defense. 8 Third, the Appellate Division correctly dismissed the Executor’s cross- appeal. Indeed, it is black letter law that the Executor’s cross-appeal did not lie. II. COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Where a foreign sovereign establishes that a well-published ancient cultural treasure disappeared from its public museum collection in a well-published incident at the conclusion of World War II and where the Surrogate’s Court correctly concluded that legal title rested in the museum, was the Appellate Division’s order directing the return of the missing artwork to the foreign museum correctly decided? Answer: Yes. The judgment and order of the Appellate Division, ordering the return of the ancient cultural treasure that the Surrogate’s Court correctly found to belong to a foreign sovereign museum should be affirmed based upon principles of judicial restraint embodied in the act of state doctrine that preempt any of New York’s equitable common law doctrines. Additionally, after the Surrogate’s Court correctly found that the Museum had title to the cultural property, the Foreign Sovereign Immunities Act deprives New York courts of subject matter jurisdiction to apply laches. Further, New York’s public policy against New York serving as a haven for stolen art as set forth in Guggenheim II, together with the binding legal principles and persuasive U.S. foreign policy expressed in the 1954 Hague 9 Convention on the Protection of Cultural Property During Armed Conflict, 249 U.N.T.S. 215 and the U.S. Convention on Cultural Property Implementation Act, 19 U.S.C. § 2601 preempt New York’s laches doctrine or at a minimum counsel judicial restraint to avoid subverting these strong public policies. 2. Was the Appellate Division correct in holding that New York’s equitable doctrine of laches did not bar the return of stolen cultural property to a foreign public museum? Answer: Yes. Laches should not be used as a vehicle to second-guess a foreign sovereign’s efforts to recover objects stolen from its public collections. However, even if this Court finds the laches doctrine applicable, the Appellate Division correctly held that the Executor failed to establish its burden of proving the elements of laches. The Executor failed to plead laches, put on no affirmative case, and called no witnesses. The Museum had no knowledge of the Tablet’s whereabouts, the loss of the Tablet was publicized, and the Executor could not have been prejudiced because the Tablet was unique and identifiable. Further, the Executor’s concealment of the Tablet and guilty knowledge of the Museum’s ownership show unclean hands. 10 III. BRIEF COUNTERSTATEMENT OF THE FACTS Starting in 1903, pursuant to an agreement with the Turkish government, German archeologists under the leadership of Dr. Walter Andrae conducted excavations in Ashur (then in the Turkish province of Mesopotamia, today Iraq). On September 25, 1913, when excavating the Ishtar Temple in Ashur, they found the Tablet. The Tablet was created during the reign of the Assyrian King Tukulti- Ninurta I (1243-1207 BCE). (R. 89). As the archeologists excavated, they carefully photographed and catalogued the Tablet, memorializing its unique inscription and individualized flaws. (R. 89-92). This detailed catalogue of the Tablet’s characteristics enabled Dr. Frahm, the Museum’s expert, to establish its identity as a unique object nearly 100 years later. (R. 89-92). Dr. Andrae’s excavation of the Ishtar Temple and the discovery of the Tablet, including a photograph of the Tablet and its inscription, were published first in 1914. (R. 93). The Tablet’s discovery, photograph and transcription have been repeatedly published in English and German volumes available to scholars. (R. 93). Following its excavation, the Tablet was transported to Basra and loaded on the freighter “Cheruskia” bound for Germany. The outbreak of World War I diverted the freighter to Lisbon, Portugal. (R. 89). There, the Tablet was unloaded 11 and stored, together with the Ishtar artifacts. The Tablet eventually reached Berlin in 1926 where it was inventoried and exhibited at the Museum until 1939. (R. 89). The Museum was closed in 1939 due to the hostilities of World War II. (R. 89). The Tablet and other Museum artifacts were warehoused in Berlin. (R. 152). Following armistice in May 1945, the Soviet army confiscated the contents of East Berlin museums, including the Museum. Inquiries concerning confiscations were not possible. Plunder was rampant and many treasures disappeared without a trace. (R. 177-180). It is still unknown whether the Tablet was taken by the Soviets. (R. 177-178). Indeed, the Museum’s Director testified as to the Museum’s difficulties after the war and how it was impossible to accuse anyone of theft. (R. 178-179). The Museum Director’s testimony is uncontroverted and the Estate’s counsel did not bother to cross-examine on this point. Until the collapse of the Berlin Wall in 1989, East Berlin was part of the Soviet-controlled German Democratic Republic. Micah Goodman, After the Wall: The Legal Ramifications of the East German Border Guard Trials in Unified Germany, 29 CORNELL INT’L L.J. 727, 734 (1996). Further, as is well known by historians, from the beginning of the occupation regime in 1945 until the early 1990s, the Soviet military remained in East Berlin. Norman M. Naimark, The Russians in Germany: A History of the Soviet Zone of Occupation, 1945-1949, at 9 12 (Belknap Press, 1995). Before that time, the Federal Republic of Germany had neither custody nor control of the Museum’s books and records. In addition, due to the increasing East-West tensions of the era, the Berlin blockade, the founding of the German Democratic Republic (a Soviet satellite regime), and the tight controls implemented by the Stasi (the East German secret police), the Museum’s contact with the West or with Western colleagues was severely limited. Obtaining Western literature was practically impossible and contact with Western colleagues was prohibited as treasonous. See generally, David Pike, The Politics of Culture in Soviet Occupied Germany: 1945-1949, at 70 (Stanford University Press, 1992). In the books of the Museum, the Tablet was listed as missing. (R. 122, 129- 130). Dr. Salje, the Museum’s director, testified that during and after World War II, Germans, Russians and others flooded the Museum’s premises. (R. 177-178). The record contains no evidence that the Museum had any inkling of the Tablet’s actual whereabouts prior to May 19, 2006, when Objectant’s attorney emailed the German Consulate in New York informing German authorities of the Tablet’s location (R. 44-48, R. 1.B). At most, the record suggests that at some time after 1983 the Museum became aware of thirty-year old hearsay that the Tablet had been sighted in New York in 1954. (R. 195 (English translation), 193 (original German record)). 13 Acting promptly, the Museum photographed the Tablet and had it examined by Yale University expert, Dr. Ekhart Frahm, who issued the Frahm Report on August 17, 2006. The Frahm Report concluded that the Tablet was indeed the object lost from the Museum. (R. 92). As stipulated to by the Estate, the Surrogate accepted and adopted the Frahm Report into evidence in lieu of hearing Dr. Frahm testify. (R. 9, 185). IV. PROCEDURAL HISTORY Riven Flamenbaum, a domiciliary of Nassau County and resident of Great Neck, New York, died April 3, 2003. (R. 8). Decedent left three children, Hannah, Israel, and Helen. (R. 8). Decedent’s will, dated April 27, 1971, named all three children as residuary beneficiaries, and appointed Hannah the Executor. (R. 8). On March 10, 2006, the Executor filed a Petition for Judicial Settlement of Account. (R. 8-9, 19-43). The Petition contained an accounting prepared by Jaspan Schlesinger Hoffman LLP (“Jaspan Schlesinger”). (R. 24-43). The Petition sought inter alia to have Jaspan Schlesinger’s legal fees approved and to have Objectant’s share of the estate reduced by the amount of legal fees his actions had caused. Annexed to the accounting was an “Affidavit of Accounting Party” signed by the Executor swearing that the schedules of assets were true and correct. (R. 42). On 14 Schedule “G” the Executor listed Decedent’s property as containing a “Coin Collection” worth $8,250. (R. 38). On April 20, 2006, Objectant’s attorney, David T. Reilly, Esq., notified the German authorities by email of the Executor’s possession of the Tablet. (R. 46). On May 23, 2006, Objectant filed objections to the Executor’s account, complaining that the Executor had concealed the Tablet (the “Objections”). (R. 44- 47). The Objections complained (among other missing items) of a missing item: “identified as a gold wafer which is believed to be an ancient Assyrian amulet and the property of a German museum.” (R. 44). Immediately upon learning of the existence of an object that might belong to the Museum, the Museum hired Dr. Frahm, who inspected the Tablet and issued his report on August 17, 2006. (R. 87-97). Shortly thereafter, the Museum retained counsel and filed a timely Notice of Appearance and Claim before the Surrogate on September 7, 2006. (R. 48-49). The Estate failed to respond to the Museum’s claim and failed to raise any affirmative defenses. (R. 112-114). Following discovery, the Surrogate’s Court held a hearing on September 17, 2009. At the hearing, Dr. Beate Salje, the Museum’s Director, testified through an interpreter. (R. 115-183). No other witness testified. The Museum entered seven 15 exhibits into evidence and neither the Executor nor Objectant presented any evidence. (R. 189- 217). At no time prior to the hearing did the Museum receive notice through any pleading that the affirmative defense of laches would be asserted against it. (R. 112-114). The Surrogate specifically ruled at the onset of the hearing that any unpleaded defenses would not be entertained. (R. 162-164). Notwithstanding the Surrogate’s ruling that unpleaded defenses would not be entertained, the Estate orally raised five defenses in argument at trial: (1) failure to file objections to the account; (2) loss of title due to the “spoils of war” doctrine; (3) failure to prove superior title; (4) the statute of limitations; and (5) laches. (R. 110-114). The Museum’s counsel timely objected to consideration of any and all affirmative defenses not set forth in the pleadings. (R. 112-114). Accordingly, the Museum did not adduce additional evidence relevant to the laches defense. The Surrogate’s pre-hearing ruling barring unpleaded affirmative defenses should have barred any laches defense because the Estate failed to raise laches as an affirmative defense in its pleadings. The only time the Estate raised laches in the hearing below was in argument at the hearing in which the Executor’s counsel asserted as follows: MR. SCHLESINGER: I don’t have to prove [title through the Spoils of War doctrine] if laches attaches, 16 because I cannot put the defendant on the witness stand and say a Russian general traded me for three cigarettes, I have no ability to do that, and that is why laches is a defense in this case. (R. 182). Following the hearing, post-trial briefs and replies were submitted. On March 30, 2010, the Surrogate correctly found that the Museum had superior title to the Tablet and dismissed all defenses not previously raised in the pleadings except laches. (R. 10-18). As to laches, however, the Surrogate erred. Without any evidentiary basis for doing so, the Surrogate held that the Museum’s delay in pursuing its rights from 1945 to 2006 was “unreasonable” and that its claim must therefore be denied. (R. 17). The Museum appealed the Surrogate’s March 30, 2010 order. No timely cross-appeal was filed. On May 30, 2012, the Appellate Division reversed the Surrogate’s order, granted the Museum’s claim, and remitted this matter to the Surrogate’s Court for further proceedings including the entry of a decree, inter alia, directing the Executor to turn over the subject property to the Museum. In reversing, the Appellate Division correctly held that the Executor failed to meet her burden of demonstrating that laches bars the Museum’s claims. (R. 1B-1C). Moreover, the Appellate Division correctly held that the equities favor the return of the tablet to the Museum and that the Executor’s remaining contentions were either unpreserved for appeal or without merit. (R. 1C). 17 On June 22, 2012, the Appellate Division granted the Executor’s motion for leave to appeal to this Court and stayed enforcement of the Appellate Division Order (the “Stay”) pending determination of this appeal. (R. 2A). V. APPLICABLE LEGAL STANDARDS A. Standard Of Review Of Appellate Division Order With limited exceptions, this Court is prohibited from reviewing questions of fact and may only review questions of law. N.Y. CONST. ART. VI, § 3; CPLR 5501(b)-(c); Arthur Krager, The Powers of the New York Court of Appeals §§ 13:1-13:2 (2005 Revised 3d Ed.). Indeed, when the Appellate Division affirms the trial court’s findings of fact, those findings are binding on the Court of Appeals. Felt v. Olson, 51 N.Y.2d 977, 979-80, 435 N.Y.S.2d 708, 709 (1980); Matter of Rothko, 43 N.Y.2d 305, 318, 401 N.Y.S.2d 449, 453(1977); Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 N.Y.3d 115, 119-20, 818 N.Y.S.2d 161, 163 (2006); Matter of E.S. v. P.D., 8 N.Y.3d 150, 158, 831 N.Y.S.2d 96, 100 (2007). However, when the Appellate Division reverses or modifies, and finds new facts, the Court of Appeals will adopt those findings which the weight of the evidence supports. N.Y. CONST. ART. VI, § 3; Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392, 804 N.Y.S.2d 719, 721 (2005); Glenn v. Hoteltron Sys., 74 N.Y.2d 386, 391, 547 N.Y.S.2d 816, 818 (1989); Tappan Motors v. Volvo of Am. Corp., 64 18 N.Y.2d 1116, 1117, 490 N.Y.S.2d 168, 169 (1985); Lucenti v. Cayuga Apts., 48 N.Y.2d 530, 542, 423 N.Y.S.2d 886, 893 (1979); Arthur Krager, The Powers of the New York Court of Appeals § 13:10 (2005 Revised 3d Ed.). Further, this Court will not interfere with a lower court’s exercise of discretion unless there has been an abuse of discretion as a matter of law or unless the lower court has failed to take into account all of the various factors entitled to consideration. H & J Blits, Inc. v. Blits, 65 N.Y.2d 1014, 1015, 494 N.Y.S.2d 99, 99-100 (1985); Arthur Krager, The Powers of the New York Court of Appeals § 13:9 (2005 Revised 3d Ed.). In other words, it is beyond this Court’s power to pass on the propriety of the Appellate Division’s exercise of discretion or to consider whether the lower court’s disposition was more reasonable. Arthur Krager, The Powers of the New York Court of Appeals §13:9 (2005 Revised 3d Ed.). B. Legal Standard Of The Act Of State Doctrine Pursuant to the act of state doctrine, this Court will not sit in judgment on the acts of the government of another country performed within its own territory. Perez v. Chase Manhattan Bank, 61 N.Y.2d 460, 469, 474 689, 692 (1984); French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 52, 295 N.Y.S.2d 433, 439-40 (1968). Indeed, this Court may not engage in “any inquiry that would test [an act 19 of a foreign sovereign] by the standards of international law or the public policy of this forum.” French, 23 N.Y.2d at 54, 295 N.Y.S.2d at 441. C. Legal Standard Of Preemption This Court will refrain from enforcing state laws and equitable considerations that interfere with or are contrary to international treaties, the supreme law of the land. Matter of Mizugami v. Sharin W. Overseas, 81 N.Y.2d 363, 365, 599 N.Y.S.2d 480, 481 (1993); see also Rosman v. Trans World Airlines, 34 N.Y.2d 385, 399, 358 N.Y.S.2d 97, 108-09 (1974). D. Legal Standard Of The Foreign Sovereign Immunities Act Under the Foreign Sovereign Immunities Act, a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States. Aboujdid v. Singapore Airlines, Ltd., 67 N.Y.2d 450, 456-57, 494 N.E.2d 1055, 1057-58 (1986) (citing 28 U.S.C. § 1604). E. Legal Standard Of Laches Under New York Law A party asserting laches carries the burden to establish that any delay by the true owner must be both unreasonable and inexcusable. Skrodelis v. Norbergs, 272 A.D.2d 316, 316-17, 707 N.Y.S.2d 197, 198 (2d Dept. 2000); Sotheby’s Inc. v. Shene, 2009 WL 762697, at *4 (S.D.N.Y. Mar. 23, 2009). Inquiry into a party’s diligence relevant to a laches analysis triggers only after the true owner learns of the location of the stolen chattel. Guggenheim II, 77 N.Y.2d at 320, 567 N.Y.S.2d 20 at 627; Kamat v. Kurtha, 2008 WL 5505880, at *6 (S.D.N.Y. Apr. 14, 2008); Shene, 2009 WL 762697, at *4. The sine qua non of laches is thus, whether a true owner who, knowing of a claim and having an opportunity to assert it, without justification delays in asserting that claim. It is this delay that must cause a prejudice to a possessor or an acquirer of a chattel for laches to be established. VI. SUMMARY OF ARGUMENT This Court should affirm the Appellate Division’s Order for at least three reasons. First, laches is inapplicable to the instant action as a matter of law, public policy, and prudential constraints, making its application inappropriate here. The Appellate Division’s decision to return the missing property to the Museum is the correct one and that decision should be affirmed. The Museum acted promptly to recover the Tablet as soon as it discovered the Tablet’s location. New York’s laches doctrine cannot frustrate U.S. treaty obligations to a foreign sovereign seeking to reclaim its cultural property as a matter of law and comity. The Museum’s ownership of the Tablet has been public information known to scholars and published in relevant periodicals since the Tablet’s discovery in 1913. Second, even if this Court finds New York’s interests in applying the laches doctrine to outweigh U.S. treaty obligations, New York’s public policy, and the act of state doctrine, the Appellate Division correctly applied the laches doctrine under 21 New York law. The Executor’s invitation to disturb the Appellate Division’s findings of fact should be rejected because the weight of the evidence supports the Appellate Division’s findings, thus binding this Court. Here, the Appellate Division correctly applied laches under New York law and correctly concluded that the Executor failed to demonstrate laches because the Executor failed to demonstrate: (i) delay: the Museum acted promptly to recover the Tablet as soon as it discovered the Tablet’s location; and (ii) prejudice: no evidence of prejudice was adduced at trial. Further, the Appellate Division correctly concluded that the equities favor the return of the Tablet to the Museum. In any event, it would be unjust to allow the Executor to rely upon equity because the Executor and the Estate have unclean hands. Third, the Appellate Division correctly dismissed the Executor’s cross- appeal. Not only did the Executor’s cross-appeal not lie, but the Surrogate’s finding that the Museum has title to the Tablet was supported by the entire weight of the evidence, which finding was affirmed by the Appellate Division such that the Museum’s title to the Tablet is not properly before this Court for review. 22 VII. ARGUMENT POINT I: THE APPELLATE DIVISION’S ORDER WAS CORRECTLY DECIDED BECAUSE FEDERAL LAW MANDATES THE RETURN OF READILY-IDENTIFIABLE CULTURAL PROPERTY OF A FOREIGN SOVEREIGN STOLEN DURING WORLD WAR II, PARTICULARLY WHERE, AS HERE, BOTH THE MUSEUM’S OWNERSHIP AND THE TABLET’S 1945 THEFT WERE WIDELY PUBLICIZED BY SCHOLARS. A. Judicial Restraint As Embodied In The Act Of State Doctrine Precludes Any Testing Of A Sovereign’s Actions By The Public Policy Of The Forum State, Accordingly, Scrutiny Of The Museum’s Post-1945 Collection Maintenance Practices Or Diligence In Pursuing Stolen Property Is Inappropriate. This court should exercise judicial restraint, as embodied in the act of state doctrine, and resist the Executor’s invitation to judge the reasonableness of actions taken by the Museum on its foreign soil. Under the act of state doctrine, the actions of a national museum on its own soil regarding state-owned property are not subject to the review or equitable discretion of the courts of the United States or the courts of New York. Perez v. Chase Manhattan Bank, 61 N.Y.2d 460, 469, 474 N.Y.S.2d 689, 692 (1984); French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 52, 295 N.Y.S.2d 433, 439-40 (1968). Indeed, the Executor concedes that the act of state doctrine precludes an inquiry into the acts of a foreign sovereign on that sovereign’s soil under the circumstances presented here. (See Executor Br. at 41- 42). 23 Here, the Surrogate conceded that: [t]he museum argues that in the period immediately following World War II, its delay in searching for the gold tablet or reporting it as stolen was entirely reasonable in the context of the political and financial restraints imposed by the museum’s geographical location in East Berlin, which shortly thereafter became part of the German Democratic Republic, a Soviet satellite state. (R. 16) Despite the Museum’s explanation, the Surrogate concluded that the Museum’s conduct was “inexplicable.” (R. 18). In doing so, the Surrogate substituted its judgment for the Museum’s as to what was reasonable for the Museum to do on its own soil—which is precisely what the act of state doctrine forbids. Not only does the act of state doctrine prohibit such a judgment, but the Surrogates’ judgment disregards the fact that it was impossible for the Museum to do anything from 1945 until the early 1990s while under control of an enemy regime. See supra pp. 11- 12. Thus, the Surrogate’s extraterritorial assessment in light of New York State’s equitable doctrines of the political circumstances and actions of a foreign country in the aftermath of World War II was inappropriate. Based upon the foregoing, this Court should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order the Executor to immediately return the Tablet to the Museum, its rightful owner. 24 B. U.S. Treaty Obligations To Return Cultural Property Stolen From Foreign Sovereigns, New York’s Lack Of Clear Guidelines For New York Museums That Are Victims Of Theft And New York’s Strong Public Policy Against Being A Haven For Stolen Art Outweigh Any Purported Equitable Interest Asserted By The Executor. 1. The 1954 Hague Convention And 1970 UNESCO Treaty Provide Strong Federal Public Policy In Favor Of Returning Stolen Cultural Property. In addition to the act of state doctrine, U.S. treaty obligations to return cultural property stolen from foreign sovereigns provide strong federal public policy in favor of returning the Tablet to the Museum. Indeed, as it applies to this action, the international treaty obligations of the United States relating to returning the property of foreign museums are so well-defined as to preempt any countervailing state law equitable considerations. Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 961-64 (9th Cir. 2009) (states cannot enact statutes affecting foreign policy on the return of Nazi-looted art). The Executor’s invitation to “rubber stamp” a pilferage from the Museum through the laches doctrine violates U.S. public policy. Specifically, Article 4(3) of the 1954 Hague Convention, signed by the United States in 1954 and ratified by Congress in 2009, states: “[t]he High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property.” 1954 Hague Convention on the Protection of Cultural Property during Armed 25 Conflict, 249 U.N.T.S. 215. Further, receiving stolen property is both a state and federal crime. See N.Y. Penal Law § 165.40 (McKinney); 18 U.S.C. § 2315. Applying laches here also violates U.S. treaty obligations. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Transport, Export, and Transfer of Ownership of Cultural Property, ratified by the U.S. Congress in 1972 (the “UNESCO Treaty”), and the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2601 et seq. (1983), prohibits trafficking in “articles of cultural property documented as pertaining to the inventory of a museum … in any State party, which is stolen from such institution ...” 19 U.S.C. § 2607. The UNESCO Treaty is the codification of a long-standing principle that prohibits plunder, pillage and theft of art as a clearly established matter of U.S. public policy and international law. Additionally, the UNESCO Treaty reflects a determination that foreign museums are to be treated in a privileged manner, in light of the benefits to scholarship and scientific research that accrue from a museum’s possession and exhibition of cultural treasures. Article 7 of the UNESCO Treaty requires signatory nations: (b)(i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another state party . . . provided that such property is documented as appertaining to the inventory of that institution; 26 (b)(ii) at the request of the state party of origin, to take appropriate steps to recover and return any such cultural property . . . provided, however, that the requesting state shall pay just compensation to an innocent purchaser or to a person who has valid title to that property Article I of the UNESCO Treaty defines “cultural property” as: property which, on religious or secular grounds, is specifically designated by each state as being of importance for archeology, prehistory . . . and which belongs to one or more of the following categories: . . . (d) historical or archeological sites which have been dismembered, (e) antiquities more than one hundred years old. Applying laches to divest the Museum of its cultural property (as the Surrogate did) conflicts with and contradicts the United States’ obligations under both the 1954 Hague Convention and the UNESCO Treaty. Treaties are the supreme law of the land and thus trump any application of laches. See Matter of Mizugami v. Sharin W. Overseas, 81 N.Y.2d 363, 365, 599 N.Y.S.2d 480, 481 (1993); see also Rosman v. Trans World Airlines, 34 N.Y.2d 385, 399, 358 N.Y.S.2d 97, 108-09 (1974). Accordingly, this Court should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order the Executor to immediately return the Tablet to the Museum, its rightful owner. 27 2. Since New York Has No Clear Guidelines For New York Museums To Recover Stolen Property, As Found In Guggenheim v. Lubell, As A Matter Of Judicial Restraint Its Courts Should Not Set Guidelines For Or Criticize Foreign Museums. In Guggenheim II, this Court explicitly rejected a due diligence guideline upon a New York museum seeking the return of missing artwork: In light of the fact that members of the art community have apparently not reached a consensus on the best way to retrieve stolen art (see, Burnham, Art Theft: Its Scope, Its Impact and Its Control), it would be particularly inappropriate for this Court to spell out arbitrary rules of conduct that all true owners of stolen art work would have to follow to the letter if they wanted to preserve their right to pursue a cause of action in replevin. All owners of stolen property should not be expected to behave in the same way and should not be held to a common standard. The value of the property stolen, the manner in which it was stolen, and the type of institution from which it was stolen will all necessarily affect the manner in which a true owner will search for missing property. We conclude that it would be difficult, if not impossible, to craft a reasonable diligence requirement that could take into account all of these variables and that would not unduly burden the true owner. Guggenheim II, 77 N.Y.2d at 320, 567 N.Y.S.2d at 627. The Surrogate’s rejection of the Museum’s explanations of the reasonableness of its conduct (R. 16, 19) contradicts this Court’s teaching in Guggenheim II. New York’s courts should not impose guidelines on foreign museums that it finds too burdensome for its own museums, much less criticize the actions taken by the Museum, a foreign sovereign. To do so would impermissibly hold foreign sovereigns to a higher standard. Accordingly, this Court should: (i) 28 affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order the Executor to immediately return the Tablet to the Museum, its rightful owner. 3. New York’s Strong Public Policy Favoring The Return Of Stolen Art Enunciated In Guggenheim v. Lubell Outweighs Equitable Arguments Raised By The Executor. In Guggenheim II, this Court recognized that New York “enjoys a worldwide reputation as a preeminent cultural center” and has adopted a public policy goal of refusing to “encourage illicit trafficking in stolen art.” See Guggenheim, 77 N.Y.2d at 320, 567 N.Y.S.2d at 627. In this action, the Surrogate correctly found that the Museum had title to the Tablet. (R. 13). Accordingly, in applying laches to bar the Museum’s claim based upon speculative notions of the reasonableness of the Museum’s diligence, the Surrogate encouraged possessors of stolen property to use the courts to attack those who seek to reclaim stolen property without weighing New York’s strong contrary public policy. This Court should not countenance a dismantling of the protections for true owners of stolen property set forth in Guggenheim II. Accordingly, this Court should: (i) reaffirm New York’s strong public policy goal set forth in Guggenheim II; (ii) affirm the Appellate Division’s Order; (iii) lift the Stay; and (iv) order the Executor to immediately return the Tablet to the Museum, its rightful owner. 29 C. Because The Museum Promptly Claimed That The Tablet Was The Property Of A Foreign Sovereign, The Museum Did Not Waive Its Claims That The Tablet Is Immune From Seizure. On April 20, 2006, Objectant’s attorney, David T. Reilly, Esq., notified the German authorities by email of the Executor’s possession of the Tablet. (R. 46). Shortly thereafter, the Museum retained counsel and filed a timely Notice of Appearance and Claim before the Surrogate on September 7, 2006, informing the Surrogate that the Tablet was the property of a foreign sovereign. (R. 48-49). Accordingly, the Museum took no action that would waive its claims that the Tablet is immune from seizure under the Foreign Sovereign Immunities Act. The Foreign Sovereign Immunities Act divests the courts of this State from applying the laches doctrine to the Museum’s property here. Under the Foreign Sovereign Immunities Act, a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States. Aboujdid v. Singapore Airlines, Ltd., 67 N.Y.2d 450, 456-57, 494 N.E.2d 1055, 1057-58 (1986) (citing 28 U.S.C. § 1604). Under the Foreign Sovereign Immunities Act, a foreign state includes its instrumentalities, including national museums. 28 U.S.C. § 1603(a). Even before Congress passed the Foreign Sovereign Immunities Act in 1976, this Court had long recognized that the Courts of this State are prohibited from exercising jurisdiction to take the property of a foreign sovereign. Lamont v. Travelers Ins. Co., 281 N.Y. 362, 369-70 (1939) (immunity extends to foreign sovereign’s 30 property in the United States and no action can be maintained to take the property of a sovereign State). Here, it is uncontested and uncontroverted that the Museum is a national museum owned by the Federal Republic of Germany (R. 8, 159); therefore the Museum is afforded the protections of the Foreign Sovereign Immunities Act. As a result, under the Foreign Sovereign Immunities Act, the Tablet is immune from a taking under the laches doctrine by a New York court. Accordingly, because the Tablet was correctly held to be the property of a foreign sovereign, this Court should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order the Executor to immediately return the Tablet to the Museum, its rightful owner. POINT II: THE APPELLATE DIVISION CORRECTLY HELD THAT THE EXECUTOR FAILED TO ESTABLISH LACHES Assuming, arguendo, that laches is not inapplicable as a matter of law and U.S. and New York public policy, the Appellate Division nevertheless properly applied the laches doctrine under New York law in concluding that the Executor failed to meet her burden of proof and in demanding that the Executor return the Tablet to the Museum. 31 A. Since The Record Is Devoid Of Evidence That The Museum Knew Or Should Have Known Of The Tablet’s Whereabouts, The Executor Failed To Establish Laches. The Appellate Division concluded that the Museum had no knowledge of the location of the Tablet prior to 2006: In 2003, Riven Flamenbaum died in possession of the tablet. Neither his will nor the accounting filed by the executor of his estate made specific mention of the tablet. During the instant accounting proceeding [in 2006], Riven Flamenbaum’s son, Israel Flamenbaum, filed objections to the accounting and informed the museum of the possession of the tablet by the estate, which was the first time since 1945 the museum had direct knowledge of the tablet’s whereabouts. (R. 1B) The Executor’s attacks on the Appellate Division’s factual finding (Executor Br. at 15-21) should be rejected. The Appellate Division’s finding is supported by the entire weight of the evidence and accordingly, the Appellate Division’s findings must be affirmed. Glenn v. Hoteltron Sys., 74 N.Y.2d 386, 391, 547 N.Y.S.2d 816, 818 (1989). The Surrogate based his decision applying laches on the erroneous conclusion that the Museum had knowledge in 1954 of a sighting in New York of what appeared to be the Tablet: [e]ven after the museum learned in 1954 that the tablet was seen in the hands of a New York dealer, the museum made no attempt to contact the dealer, the New York City Police Department or Interpol or to otherwise seek recovery of the tablet. Instead, the museum allowed an 32 additional 51 years to pass before reporting the tablet missing or making inquiry as to its whereabouts. (R. 15). This finding lacks any evidentiary support; resulted from a fundamental misunderstanding of the information represented in the relevant Museum Record, which was the source of the asserted 1954 date cited by the Surrogate; and is, indeed, contradicted by a careful reading of the Museum Record in question. The Surrogate incorrectly inferred: (i) that a handwritten entry in the Museum Record was itself entered in 1954; (ii) that the handwritten entry in the Museum Record indicated a sighting of the Tablet by someone related to the Museum; (iii) that the Tablet was known to be in the hands of a dealer in New York at the time of the entry of the Museum Record; and (iv) that the sighted tablet was indeed identical with the Flamenbaum Tablet. Each of these erroneous conclusions is soundly contradicted by reviewing the Museum Record itself. (English translation at R. 195; original German record at R. 193). For the reasons below, the Museum Record when read with the “Grayson” citation it refers to indicates, in fact: (i) that the entry of the Museum Record is undated, but could not possibly have been entered prior to 1983—and could have been entered anytime between 1983 and 2006; (ii) that the record referred to a sighting that occurred at least three decades before the entry in the Museum Record; and (iii) that at the time of the entry of the Museum Record (whether it was entered in 1983, 2006, or any year in between) there is no evidence 33 in the Museum Record or in the Surrogate proceedings to suggest the Museum had any knowledge of the whereabouts of the Tablet. First, recall that the Federal Republic of Germany, the Tablet’s and the Museum’s true owner had no meaningful access to the Museum from 1945 through the early 1990s because East Berlin was occupied by Soviet troops. See supra pp. 11-12. Additionally, the entry concerning a 1954 sighting of the Tablet that the Surrogate erroneously misinterpreted is located in the column marked “File #” (or in the German version, the column marked “AKTENNUMMER”). (English translation at R. 195; original German R. 193). The handwritten entry reads “Seen by Güterbach 1954 in New York” and, underneath it, “see Grayson, APRIM.” In other words, the entry notes that the Tablet was seen by “Güterbach”3 in 1954 in New York and it cites a source (“Grayson, APRIM”) for that assertion. As established in the Frahm Report (R. 87-97), “Grayson, APRIM” refers to 1983 Canadian article by A.K. Grayson, “Antiquities from Ashur: A Brief Description of Their Fate with Special Reference to the Royal Inscriptions,” Annual Review of the Royal Inscriptions of Mesopotamia Project 1, 15-18. (R. 90, 93) (“APRIM” being a rough translation of the initials for Annual Review of the Royal Inscriptions 3 There is no evidence in the Record that after 1935 Guterbock had any affiliation or contact with the Museum—which was behind the Iron Curtain after 1945, a decade prior to Guterbock’s alleged sighting. 34 of Mesopotamia Project.) The relevant language contained in the publication on which the Frahm Report asserts the Museum Record based its entry is actually quoted in the Frahm Report: “Professor H.G. Guterbock in a private communication told me of having seen a gold tablet … which was in the Berlin Museum before the war … in the hands of a dealer in New York in 1954.” (R. 90, n. 5.) There is no evidence in the Record indicating when the Museum actually entered this undated note into the Museum Record. Because the source for the entry in the Museum Record is a 1983 publication, the entry in the Museum Record (which, again, is undated) of a 1954 sighting could not logically have been made before 1983 at the very earliest—three decades after 1954. Accordingly, there is no evidentiary support for the Surrogate’s conclusion that the “museum learned in 1954” that the Tablet had been seen in New York. (R. 15). Even if the Museum was aware of the Grayson publication immediately upon its publication in 1983, the Museum would not have had knowledge of the Tablet’s location based on a sighting 30 years before. As the Frahm Report establishes, a quotation from a Grayson publication 4 years later in 1987, Assyrian Rulers of the Third and Second Millennia B.C. (to 1115), The Royal Inscriptions of Mesopotamia: Assyrian Periods, Vol. 1 (Toronto, University of Toronto Press), 35 even states that at the time of its 1987 publication, the location of the tablet was unknown to the author and the author’s source: [The Tablet] was lost during the Second World War but appeared in the possession of a New York dealer in 1954 [….]. The present location of the object is not known to us but fortunately Andrae published good photos in [illeg.] from which the [Tablet] could be studied. (R. 93, 95 (emphasis added)). Thus, even if the Museum had read of the 1954 New York sighting in Grayson’s 1983 article or 1987 book in the same years they were published, then the Museum would still not have known the location of the Tablet in the 1980’s at the time they were published and would be left with nothing more helpful than a 30-year old tip of an outdated location outside the Iron Curtain in the hands of an anonymous dealer. Not only does the Museum Record contradict the erroneous conclusion that the Museum knew the Tablet’s whereabouts in 1954, there is no evidence in the Museum Record, nor elsewhere in the Record below, that the Museum became aware of the Tablet’s whereabouts at any point prior to 2006. The Estate never elicited any such information at trial. In stark contrast, however, the Museum director testified without contradiction that the Museum had no knowledge of the Tablet’s whereabouts prior to 2006. (R. 46). In addition, contrary to Respondents’ assertions that the Museum knew of the Tablet’s location and failed to report it as stolen, the Grayson publications cited 36 in the Frahm Report refer to the Tablet as having been in the Berlin Museum and lost during the Second World War. (R. 60). Consequently, the publications show that the Museum did sufficiently report the Tablet as lost and that the world— though not on notice of the Tablet’s whereabouts at the time of the Grayson publications—was on notice of its loss. Accordingly, the Surrogate’s finding that the Museum knew of the Tablet’s whereabouts in 1954 but failed to report the loss is directly contradicted by: the Museum Record; the Frahm Report; two different Grayson publications; and the Museum Director’s uncontradicted testimony. Therefore, the Appellate Division’s findings of fact should be rejected because the weight of the evidence supports the Appellate Division’s findings, thus binding this Court. Glenn v. Hoteltron Sys., 74 N.Y.2d 386, 391, 547 N.Y.S.2d 816, 818 (1989). The Appellate Division, having correctly determined that the Museum had no knowledge of the location of the Tablet prior to 2006, proceeded to apply the correct legal standard in holding that the Executor failed to demonstrate laches. Under New York law, knowledge of a claim is a prerequisite for a prior owner’s inaction to amount to a fraud causing reasonable reliance thereon. The courts of this State have long recognized that mere inaction is insufficient for laches to attach. The party asserting laches must also demonstrate either actual fraud or 37 conduct equivalent to a fraud causing reasonable reliance on a past owner’s inaction. Trenton Banking Co. v. Duncan, 86 N.Y. 221, 229-30 (1881). The sine qua non of laches is whether a true owner, knowing of a claim and having an opportunity to assert it, delays without justification in asserting that claim, which delay causes prejudice. Guggenheim II, 77 N.Y.2d at 320, 567 N.Y.S.2d at 627 (“[I]t would not be prudent to extend the case law and impose the additional duty of diligence before the true owner has reason to know where its missing chattel is to be found.”). Indeed, this Court, in Guggenheim II explicitly rejected shifting the burden of locating missing art to the true owner: To place the burden of locating stolen artwork on the true owner and foreclose the rights of that owner to recover its property if the burden is not met would, we believe, encourage illicit trafficking in stolen art. . . . This shifting of the burden onto the wronged owner is inappropriate. In our opinion, the better rule gives the owner relatively greater protection and places the burden of investigating the provenance of a work of art on the potential purchaser. Id. Since Guggenheim II, the Appellate Divisions of the State of New York, as well as courts applying New York law, have not wavered in their application of the “knowledge” and “prejudice” prongs that must be proven in addition to proving a delay or inaction. Wertheimer v. Cirker’s Hayes Stor. Warehouse, 300 A.D.2d 117, 117-18, 752 N.Y.S.2d 295, 296-97 (1st Dept. 2002) (finding delay unreasonable and inexcusable where the true owner had actual knowledge of the 38 identity of the alleged thief and knew or reasonably should have known the missing chattel’s location); Matter of Peters v. Sotheby’s Inc., 34 A.D.3d 29, 35, 821 N.Y.S.2d 61 (1st Dept. 2006) (same); Kamat v. Kurtha, 2008 WL 5505889, at *6 (S.D.N.Y. Apr. 14, 2008) (applying New York law and holding that “the relevant time period is from May, 2003, when Defendant first discovered that Wood was in possession of the Painting, until September 14, 2004, when Defendant contacted Sotheby’s and requested that it withdraw the Painting from the auction.”); Sotheby’s Inc. v. Shene, 2009 WL 762697, at *4 (S.D.N.Y. Mar. 23, 2009) (applying New York law and analyzing the actions of the German State of Baden-Wurttemberg after it learned of the existence of an artifact it reasonably believe to be destroyed in World War II). The Executor urges this Court to adopt a laches standard that would shift the burden back to the owner, as the Surrogate impermissibly did below. The Executor argues that the Museum’s purported to failure to report the Tablet stolen to law enforcement or to list it on an international stolen art registry is dispositive. (Executor Br. at 17). The Appellate Division correctly followed this Court’s teachings of Guggenheim II, which explicitly rejected the argument that a museum’s decision to report stolen property is dispositive in a laches analysis: According to the museum, some members of the art community believe that publicizing a theft exposes gaps in security and can lead to more thefts; the museum also 39 argues that publicity often pushes a missing painting further underground. In light of the fact that members of the art community have apparently not reached a consensus on the best way to retrieve stolen art (see, Burnham, Art Theft: Its Scope, Its Impact and Its Control), it would be particularly inappropriate for this Court to spell out arbitrary rules of conduct that all true owners of stolen art work would have to follow to the letter if they wanted to preserve their right to pursue a cause of action in replevin. Guggenheim II, 77 N.Y.2d at 320, 567 N.Y.S.2d at 628. Accordingly, the Appellate Division correctly rejected the Executor’s arguments. Similarly, nothing in Wertheimer, relied upon by the Executor, suggests that the Museum’s failure to report the Tablet stolen is dispositive in a laches inquiry. Wertheimer stands for the proposition that, after a party has knowledge of its claim and an opportunity to assert it, a party’s diligence is relevant to the determination of the laches defense, not dispositive of it. B. Since The Museum’s Ownership Of The Unique And Readily- Identifiable Tablet And Its Theft Have Been Publicly Published For Decades, The Executor Could Not Have Been Prejudiced By Any Purported Inaction Of The Museum. The Tablet’s 1945 loss from the Museum was documented and widely published to scholars worldwide. (R. 87-95). Accordingly, an analysis of the Museum’s actions is moot because the world knew and thus the Executor cannot show causation of any prejudice as a matter of fact and law. 40 Nevertheless, the Executor contends, in Argument I.B. of her brief, that the Museum’s purported delay caused the Executor prejudice. (Executor Br. at 22-30). The Executor’s contention is spurious at best. The Appellate Division correctly held that “the [E]xecutor 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 . . . [or] that the estate changed is position to its detriment because of the delay.” (R. 1B-1C). This Court should reject the Executor’s invitation to disturb the Appellate Division’s correct assessment of the evidence in the record because the Appellate Division’s assessment is supported by the weight of the evidence. For laches to attach, the party asserting laches has the burden of demonstrating either actual fraud or conduct equivalent to a fraud that causes prejudice. Trenton Banking Co. v. Duncan, 86 N.Y. 221, 229-30 (1881) (“There must be shown either actual fraud, or fault or negligence, equivalent to fraud on his part, in concealing his title, or that he was silent when the circumstances would impel an honest man to speak.”). In support of the Executor’s prejudice arguments, the Executor raises hypothetical scenarios in which the Executor invites this Court to imagine that the Decedent got good title to the Tablet. (Executor Br. at 22-30). But a closer look shows that none of these imaginative scenarios would have given the Executor 41 good title. Additionally, the Executor cannot point to any specific proof that evidence that would have given the Decedent good title has been lost, which is the Executor’s burden in establishing a laches defense. Indeed, the Appellate Division correctly rejected the Executor’s arguments because the Executor presented no evidence demonstrating that anything that the Museum did or did not do that “gave rise” to the situation about which the Executor complains. In fact, the Executor presented no evidence of prejudice at all, but only argument. Further, the Executor and Objectant’s failure to testify should lead this Court to draw an adverse inference. See 855-79 LLC v. Salas, 40 A.D.3d 553, 556, 837 N.Y.S.2d 631, 634 (1st Dept. 2007) (a party’s failure to testify “permits an adverse inference”). In any event, there is no evidence the Executor could have presented to demonstrate prejudice because: (1) any due diligence by the Flamenbaums would have led to the discovery of the true owner because, as a result of the publication of the Museum’s loss to the world, the ownership of the Tablet was easily researchable (compare R. 87-93, with Solomon R. Guggenheim Found. v. Lubell, 153 A.D.2d 143, 152, 550 N.Y.S.2d 618, 623 (1st Dept. 1990), aff’d, 77 N.Y.2d 311 (1991), and Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc., 917 F.2d 278, 294 (7th Cir. 1990)); (2) the Objections show that Executor and Objectant knew the Tablet was missing from 42 the Museum (R. 44-46); and (3) the Executor’s arguments regarding “spoils of war” are not relevant because under New York law, even a good faith purchaser cannot get good title to stolen property. Bakalar v. Vavra 619 F.3d 136, 141-42 (2d Cir. 2010) (citing Guggenheim II)). Accordingly, the Appellate Division properly applied the laches doctrine under New York law and correctly found that the Executor failed to prove prejudice. Thus, the Court should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order that the Tablet be returned to the Museum. C. The Executor’s Unclean Hands And Concealment Of The Tablet For Decades Preclude Any Invocation Of Equity. It would be unjust to allow the Executor to invoke equity because the record shows that the Executor and the Estate do not have clean hands. “A party asserting an equitable defense such as laches must demonstrate that it comes before the court with clean hands.” Eppendorf Netheler Hinz GMBH v. Nat’l Scientific Supply Co., Inc., 14 Fed.Appx. 102, 105, 2001 WL 798844, 3 (2d Cir. 2001). Willful failure to disclose evidence will result in the rejection of an asserted laches defense. Brown v. Michelin Tire Corp., 204 A.D.2d 255, 256, 611 N.Y.S.2d 594, 596 (2d Dept. 1994) leave to appeal den. 84 N.Y. 2d 808 (1994). Here, the Executor and the Estate failed to include the existence of the Tablet as an asset of the Estate in the 43 accounting filed before the Surrogate. (R. 19-43). Indeed, the Executor’s affidavit swears that the Tablet was not in Decedent’s estate. (R. 42). The Record is devoid of any testimony from the Executor or anyone else testifying that the Tablet is an asset of the Estate. Nor is there any testimony that the Executor or Objectant were unaware that the Tablet was stolen. Even the most charitable reading of the accounting shows that the Executor sought to conceal the Tablet’s existence from the Surrogate. Further, if the Objections are to be credited as admissions against interest, the Executor committed perjury to try to cheat Objectant and New York State out of the value of the Tablet. Evidence annexed to the Objections suggests that the Executor and Objectant knew that the Tablet belonged to the Museum, and were apparently informed of circumstances demonstrating that it was stolen. (R. 46-47). Finally, the fact that the Executor and Objectant did not testify and, thus, did not subject themselves to cross-examination should not aid them in retaining possession of the stolen Tablet. See 855-79 LLC v. Salas, 40 A.D.3d 553, 556, 837 N.Y.S.2d 631, 634 (1st Dept. 2007) (a party’s failure to testify “permits an adverse inference”). Because laches cannot be applied to aid wrongdoers, launder title to stolen property or facilitate a theft, the Appellate Division properly found that the equities favor the return of the Tablet to the Museum. Accordingly, this Court 44 should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order the Executor to immediately return the Tablet to the Museum, its rightful owner. D. The Appellate Division Correctly Found That The Equities Favor The Return Of The Tablet To The Museum. The Executor contends, in Argument I.C. of her brief, that the Appellate Division improperly substituted its judgment for that of the Surrogate when it ruled that the equities favor the return of the tablet to the Museum. (Executor Br. at 30). According to the Executor, 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. The Executor’s argument fails on its face. As discussed in great detail above the Appellate Division’s judgment is supported by the entire weight of the evidence in the Record and the Surrogate’s findings were based on an erroneous assessment thereof. See supra Point II.A. Accordingly, the Appellate Division properly reversed the Surrogate and the Court should: (i) affirm the Appellate Division’s Order; (ii) lift the Stay; and (iii) order that the Tablet be returned to the Museum. 45 POINT III: THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S ORDER BECAUSE THE APPELLATE DIVISION CORRECTLY DISMISSED THE EXECUTOR’S CROSS- APPEAL. The Executor contends, in Argument II, that the Surrogate erred in determining that the Museum had title to the Tablet. (Executor Br. at 31-42). The Executor is wrong for at least three reasons. First, the Executor’s cross-appeal did not lie. It is black-letter law that an appeal does not lie if a party is not aggrieved. See Mixon v. TBV, Inc., 76 A.D.3d 144, 147-49, 904 N.Y.S.2d 132, 135-36 (2d Dept. 2010); see also CPLR § 5511. Here, the Executor was not aggrieved by the Surrogate’s order, which denied the Museum’s claim to the Tablet on account of laches. (R. 14-18). Second, in any event, the Surrogate’s finding that the Museum had superior title was supported by the Record. The Museum’s director testified that the Tablet was part of the Museum’s collection and had been lawfully excavated in Ashur, capital of the Assyrian Empire in 1913 by Dr. Walter Andrae (R. 148). This testimony was supported by the Museum Record. (English translation at R. 195; original German record at R. 193). The Frahm Report, stipulated into evidence, concluded that the unique Assyrian inscription on the Tablet matched the published descriptions and gave a 99% certainty of the match (R. 89; 92). Based on this undisputed evidence, the Surrogate correctly determined that the Museum 46 possessed title to the Tablet superior to the Estate. (R. 12-13). Accordingly, the Surrogate correctly determined title to the Tablet resides in the Museum. In contrast to the Museum’s presentation of testimony and evidence, the Executor did not present any evidence demonstrating that the Decedent or the Estate ever lawfully came into possession of the Tablet. The Estate bears the burden of demonstrating the accuracy of its accounting and its entitlement to the Tablet under the Surrogate’s Court Procedure Act. Matter of Gallagher, 81 A.D.3d 825, 916 N.Y.S.2d 804 (2d Dept. 2011). However, the Estate’s accounting submitted to the Surrogate (the “Accounting”) does not specifically list the Tablet. Instead of providing any evidence demonstrating a chain of custody and superior title, the Executor relied, and relies to this day, upon on the speculation that the Russian Army had taken the Tablet. This is unsupported by the Record: 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 Director: Yes, that’s correct, but I wouldn't stick this onto the Russian troops, because before that, there were German troops and also the people who lost their homes. (R. 177) The testimony and documentary evidence in the Record show that the Museum had no reliable evidence indicating whether the Tablet was stolen, lost, or destroyed before the Tablet resurfaced in this Estate in 2006. (R. 98; 176-77; 46). 47 The Executor offered no competing evidence of the Tablet’s whereabouts after 1945 or how it came into Decedent’s possession. Accordingly, the Surrogate correctly found that “[the] support for the estate’s theory [of a Russian theft] is largely circumstantial; the estate has not introduced evidence to raise this theory above the level of conjecture.” (R. 12). More importantly, the Estate’s arguments on this appeal regarding “spoils of war” are not relevant. Assuming arguendo that Russian soldiers stole the Tablet, this fact, even if true, would not give the Estate good title. Under New York law, even a good faith purchaser cannot get good title to stolen property. Bakalar v. Vavra 619 F.3d 136, 141-42 (2d Cir. 2010) (citing Guggenheim II). The Executor does not argue that Decedent was a good faith purchaser. In sum, the Estate failed to present any evidence or make any record before the Surrogate supporting a scenario in which it could have gained good title—and points to no potential missing evidence or documents that could have supported a laches defense or established title if this matter had been commenced earlier. Indeed, under the Executors own “spoils of war” theory, the Museum’s title was never extinguished and no good title could be taken after the Russian plunder because “[p]illage, or plunder . . . is the taking of private property not necessary for the immediate prosecution of war effort, and is unlawful. Where pillage has taken place, the title of the original owner is not extinguished.” Menzel v. List, 49 48 Misc.2d 300, 307, 267 N.Y.S.2d 804, 811 (N.Y. Sup. 1966) (emphasis in original), modified on other grounds, 279 N.Y.S.2d 608 (1st Dept. 1967), modification rev’d, 298 N.Y.S.2d 979 (1969). In order to avoid duplication and a waste of judicial resources, the Court is respectfully referred to the Brief of Amici Curiae, Archaeological Institute of America, et al., which is incorporated fully herein, for a more detailed analysis of the fundamental flaws in the Executors “spoils of war” theory. Third, the Appellate Division adopted the Surrogate’s findings of fact demonstrating that the Museum had legal title to the Tablet. (R. 1C). When an Appellate Division affirms the trial court’s findings of fact, those findings are binding on the Court of Appeals. Felt v. Olson, 51 N.Y.2d 977, 979-80, 435 N.Y.S.2d 708, 709 (1980); Matter of Rothko, 43 N.Y.2d 305, 318, 401 N.Y.S.2d 449, 453 (1977); Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 N.Y.3d 115, 119-20, 818 N.Y.S.2d 161, 163 (2006); Matter of E.S. v. P.D., 8 N.Y.3d 150, 158, 831 N.Y.S.2d 96, 100 (2007). Accordingly, the factual findings that the Museum demonstrated legal title and superior title to the Tablet are not reviewable on this appeal. 49 VIII. CONCLUSION For the foregoing reasons, it is respectfully submitted that this Court should: (1) affirm the Appellate Division’s Order; and (2) lift the Stay; and (3) order the immediate return of the Tablet to the Museum. Respectfully submitted, DUNNINGTON, BARTHOLOW & MILLER LLP By: Raymond J. Dowd Robert F. Dannhauser 1359 Broadway, Suite 600 New York, New York 10018 Tel: (212) 682-8811 Fax: (212) 661-7769 rdowd@dunnington.com rdannhauser@dunnington.com -and- John C. Fisher HAMBURGER, WEINSCHENK & FISHER 36 West 44th Street, Suite 1409 New York, New York 10036 Tel.: (212) 719-5930 fisherlawyer@aol.com