Yula Lipchitz, the wife of famed sculptor Jacques Lipchitz, died on July 20, 2003. During the probate of her will, Biond Fury asserted a claim of ownership in The Cry a 1,100 pound bronze sculpture, valued at around $1 million.

Fury claimed that Lipchitz gave him the sculpture in 1997, citing a handwritten note on the back of a photograph of the sculpture as proof. Fury said he stored the sculpture in a warehouse at his expense until it was removed by Hanno Mott, Lipschitz son, who shipped it to a gallery and then loaned it to the French government.

Fury subsequently sold his interest in the work to Petitioners David Mirmish, who filed the action against Mott. The Surrogate’s Court ruled in favor of the Fury/Mirmish, finding that a valid gift was made by Lipchitz to Fury. On appeal, the First Department held that the Surrogate Court improperly granted summary judgment because Fury’s testimony as to the transaction with Lipschitz was inadmissible pursuant to New York’s “Dead Man’s” statute. The Appellate Court also held there was in issue of fact as to whether a gift was made because there was conflicting evidence as to whether Lipchitz parted with “dominion and control” of the sculpture.

However, the Court held that the petitioner’s claims were barred by the three year statute of limitations for conversion and replevin claims. The court noted a conversion cause of action accrues upon the occurrence of “some affirmative act of asportation” – which occurred here no later than 1998, when respondent had The Cry removed from the Michael Leonard Warehouse without Fury’s permission, delivered to the Marlborough gallery and then loaned to the French Government, all in the name of the Lipchitz family.

Thus, the Appellate Court reversed the Surrogate’s Court’s decision and held Mirmish’s claims of ownership were time barred.

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