The “forced sale” by the Nazis of art owned by Jewish dealers and collectors is once again in the legal news. In Schoeps v. The Andrew Lloyd Webber Art Foundation (Appellate Division, First Department, August 11, 2009), the court addressed a rather routine procedural question: Whether plaintiff had standing to pursue recovery of Picasso’s “Absinthe Drinker” without first becoming appointed a representative of the estate of the original owner. The appellate court decided that Schoeps did indeed lack standing to bring the action, and thus affirmed dismissal of the complaint.
But the underlying facts are fascinating and likely will re-surface in the very near future. In 1935, Paul von Mendelssohn-Bartholody, a German-Jewish banker, was forced to sell a valuable Picasso to a German art dealer. According to Julius Schoeps, a great-nephew of Bartholody and one of the heirs to the Bartholody estate, Bartholody was compelled to sell the painting under duress resulting from Nazi persecution. Schoeps claimed — albeit without written proof — that all of the Bartholody heirs had assigned their rights to him in respect of the Picasso.
As such, Schoeps brought an action against The Andrew Lloyd Webber Art Foundation, as the current owner of the artwork. The foundation bought the painting in 1995 in an open auction by Sotheby’s in New York. The disputed claim to ownership came to light when the Foundation sought to sell the painting at a November 8, 2006 auction at Christie’s in New York. Ultimately, because of the controversy, the Foundation withdrew the painting from the Christie’s auction and returned it to London.
The sole issue before the court was whether Schoeps could bring the action to challenge ownership without first being appointed a representative. In ruling for the Foundation on the “standing” issue, the court made plain that its decision rested on Schoeps’ failure to establish by expert evidence or otherwise that he had the right to bring the action. As the court stated: “Clearly, we do not seek to limit the manner by which a foreign legal representative can establish standing; our decision is limited to the holding that merely being vested with title at the time of the decedent’s death is insufficient grounds for permitting a party to pursue a claim in this jurisdiction.”