75 years ago, in 1933, Hitler came to power and soon Germany and then the whole of Europe descended into the long, dark night of Nazi terror. I have memories of asking my Dad about Normandy, the slog toward the Rhine and the final major contest in the Ardennes forest, in what became known as the Battle of the Bulge. And, like many others of his generation, my Dad said little, except that he made it home.
But despite the passage of years, the darkness of that era is ever present. Among this year’s featured and award-winning films were Dunkirk and The Darkest Hour. And, so too, is the law is still grappling with Nazi atrocities, confronting the problem of title to Nazi-looted art and “forced sales” of art resulting from relentless persecution of Jewish collectors and dealers. All of the reported decisions tug at the heart. But perhaps none more so than Judge Loretta A. Preska’s recent decision in Laurel Zuckerman, As Ancillary Administratrix of the Estate of Alice Leffman v. The Metropolitan Museum of Art (SDNY, 16 Civ.7665, February 7, 2018).
There, in stark and gripping prose, the Court described the flight of the Leffman family from Germany to Italy to Switzerland, and ultimately, to the United States, after losing their business, livelihood, home, and virtually all of their possessions because of Nazi persecution of Jews. Yet, despite the horrors endured by the Leffmans, the Court had to grapple with a narrow legal issue: Did The Metropolitan Museum of Art have good title to an iconic work of Pablo Picasso entitled “The Actor” (1904-1905) which the Leffmans owned from 1912 to 1938 until its sale that year by the Leffmans to a Paris dealer for U.S. $13,200? Thereafter, in 1940, the Paris dealer consigned the work for sale to the Knoedler Gallery in New York. Ultimately, Thelma Chrysler Foy purchased the work in 1941 for U.S. $22,500 and later, in 1952, Foy donated the work to The Met, where it remains today.
Ms. Zuckerman, the great-grandniece of the Leffmans, as auxiliary administrator of their estate, brought a writ of replevin against The Met to recover the Picasso, as rightful owner, claiming that the work’s sale was “forced” under the duress of the Nazis in Germany and later Italy where the Leffmans first fled. As such, the Court had to grapple with the question of whether the work was sold under” duress” as a matter of Italian or New York law.
Finding no outcome determinative difference between the two jurisdictions in respect of this issue, the Court looked to the facts surrounding the actual sale of the work to determine whether a threat by another party trumped the exercise of free will by the Leffmans. But the facts pleaded–and accepted by the Court–revealed the work itself was in safekeeping in Switzerland and the Leffmans had “shopped” the work to Paris dealers to leverage its sale value before finally making the deal. Beyond that, the pleading established that the Leffmans had other financial alternatives to raise cash for their continued flight from Nazi terror.
So, as a matter of pleading deficiencies, the action was dismissed. No doubt, an appeal will follow. But this decision reminds us the very difficult task jurists face–applying the law to the facts when, often, the heart wants to take us in a different direction.
And that’s it for this This and That.