Warin v Wildenstein & Co., Inc.

[*1] Warin v Wildenstein & Co., Inc. 2006 NY Slip Op 51631(U) [13 Misc 3d 1201(A)] Decided on June 23, 2006 Supreme Court, New York County Kapnick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2006
Supreme Court, New York County

Frances Warin, individually and EN MEMOIRE D'ALPHONSE KANN, an unincorporated association, Plaintiffs,

against

Wildenstein & Co., Inc., a New York corporation, DANIEL WILDENSTEIN, ALEC WILDENSTEIN and GUY WILDENSTEIN, Defendants.



115143/99

Barbara Kapnick, J.

This replevin action arises out of the tragic occupation of France by the Nazis during World War II, and specifically, the Nazis' widespread and systematic looting of the great Jewish owned art collections in France (and elsewhere in Europe). These activities were conducted primarily through a unit of the Nazi army known as the Einsatzstab Reichsleiter Rosenberg (ERR). Among the collections raided by the Nazis were those of two Parisian art collectors, Alphonse Kann and Georges Wildenstein.

Plaintiffs Frances Warin, individually and En Memoire D'Alphonse Kann, an unincorporated association of plaintiff Warin's relatives, as successors-in-interest to Alphonse Kann, seek to recover from the defendants eight rare illuminated manuscripts which plaintiffs claim were stolen by the Nazis from Mr. Kann's residence at 7 rue des B cherons in Saint Germaine-en-Laye, a small town on the outskirts of Paris, in October 1940, and which plaintiffs claim are now wrongfully in the possession of the defendants Wildenstein & Co., Inc., a New York corporation, Daniel Wildenstein, Alec Wildenstein and Guy Wildenstein.[FN1] [*2]

Plaintiffs claim that the manuscripts were included in an inventory compiled by the ERR, a copy of which was provided to Francis Warin by the French Ministry of Foreign Affairs for the first time in September 1996, after Mr. Warin learned of its existence through reading a book entitled The Lost Museum: The Nazi Conspiracy to Steal the World's Greatest Works of Art, by Hector Feliciano, published in the Spring of 1995.

According to Feliciano, some time in early 1941, the Nazis conducted an inventory of the looted artwork at the Jeu de Paume museum in Paris. As part of the Nazis' established procedure, they assigned catalogue numbers or code letters to indicate from whose collection a particular piece of artwork had been stolen. For example, items seized from the Rothschild collection were assigned the code letter "R", items stolen from the Kann collection were assigned the code "KA" and items taken from the Wildensteins were assigned "W" or "WIL."

Warin and Feliciano claim that this inventory list contained a reference to eight illuminated manuscripts and each manuscript had a "KA" number assigned to it beginning with "KA879" and running consecutively through "KA886". However, a handwritten inventory created by the ERR at or about the time of the looting of Mr. Kann's residence does not list the manuscripts at issue.

Further, there is no evidence that Kann ever filed a claim for the manuscripts at issue, although Kann and/or a Mr. Habert, an agent he apparently appointed prior to the end of the war, composed lists and made claims for the restoration of numerous other art objects which were taken from his home, many of which were recovered.

Beginning in 1945, Kann corresponded directly with Albert Henraux, the President of the Commission de Récupération Artistique ("CRA"), an entity established by Special Ordinances ("Ordonnances") issued by the post-occupation French government to facilitate the return of looted artwork to its original owners, concerning his collection and claims, and Henraux visited Kann in London. Kann was also acquainted with Georges Salles, the Director of French national museums, who assisted him in his efforts to recover his art from the CRA. Kann himself never returned to France after the war.

After Kann died in London in 1948, the effort to recover his [*3]collection was taken over by Michel Maurice Bokanowski, who was the executor and probator of Kann's estate. Bokanowski was in frequent contact with the CRA and also corresponded directly with Mr. Henraux, but there is no evidence that he ever attempted to recover the manuscripts at issue.

Defendants contend that they are entitled to retain ownership to seven of the eight manuscripts, since they claim that these manuscripts were looted by the Nazis not from Mr. Kann but from Mr. Wildenstein. They further claim that the manuscripts were recovered from the Nazis and properly restored to Mr. Wildenstein between 1949 and 1952 by the CRA and its successor organization, the Office des Biens et Inter ts Privés ("OBIP").[FN2]

Defendants deny any knowledge regarding the fate of the eighth manuscript at issue in this lawsuit, which is described by plaintiffs as "Manuscript on Parchment, without calendar, Italian early 16th century."

By Decision/Order dated September 4, 2001, aff'd, 297 AD2d 214 (1st Dep't 2002), the Hon. Marylin G. Diamond determined that French law governs this case.

Defendants have now filed a Request for Judicial Notice of French law pursuant to CPLR § 4511, seeking a determination by this Court that plaintiffs' claims are time barred under the applicable provisions of both the Special Ordinances and the [*4]French Civil Code.[FN3]

In support of their Request, defendants have submitted an Affidavit from Sauveur Vaisse, a member of the Bar of Paris, and a Professor of Law Emeritus at the School of Law of Rene Descartes University in Paris. He contends that this dispute is governed by the Special Ordinance (Order No. 45-824) of April 11, 1945.

Article 1 of the Special Ordinance of April 11, 1945 provides, in essence, as follows:[FN4] [F]urniture, professional movables ... books, paintings ... and all other items of this nature apprehended by the enemy under conditions falling outside the scope of general law and recovered by the State are subject to the special rules covered by this Order, notwithstanding all legal provisions providing to the contrary (emphasis supplied).[FN5]

Pursuant to Article 5 of the Ordinance of April 11, 1945, a "claim or action to establish title" to looted art recovered by the authorities was no longer "admissible after the expiration of a period of one year from the legal date of the cessation of hostilities." That deadline was later extended by Decree No. 47-2105 which was issued on October 29, 1947, until "two months after the date of publication of [that] decree"; i.e., until December 31, 1947.

Under the Ordinance of April 11, 1945, once the French authorities returned recovered property to a claimant, a claimant held the item "precariously" for two years, during which time the Administration could annul its decision to return the property. However, after the expiration of that period, the claimant became the legal owner of the property.

Professor Vaisse contends that the plaintiffs' current claim for the manuscripts is barred under the Ordinance of April 11, 1945 because plaintiffs and their predecessors failed to make a claim prior to December 31, 1947, and because Georges Wildenstein became the legal owner of the manuscripts after the expiration of the two year period starting in 1952, the date of restitution of the last two manuscripts. Therefore, Professor Vaisse contends that, as of 1954, any claim by plaintiffs against the Wildensteins could only be filed on the basis of the French Civil Code, which applies generally to property disputes in France.

Article 2279 of the French Civil Code, which according to Professor Vaisse, applies to a possessor who holds goods in "good faith", provides as follows: With respect to personalty, possession is equivalent of title. Nevertheless, a person who has lost or from whom a thing has been stolen, may claim it within three years starting with the day it was stolen or lost, from the person who holds it, the latter reserving his right to claim against the person from whom he received it (emphasis supplied).

Article 2262 of the French Civil Code applies to a possessor [*5]who hold the goods in "bad faith" and provides as follows: All actions, whether involving real property or personal property, are barred after thirty years, without the party alleging the bar having to prove a right to the real or personal property and without being subject to the defense of bad faith (emphasis supplied).

According to Professor Vaisse, under the French Civil Code (Article 2268), a holder of property is presumed to hold property in "good faith", and the burden of proof rests on the party alleging "bad faith" to prove the contrary.[FN6]

Professor Vaisse contends that even if this Court were to assume that the Wildensteins hold the manuscripts in "bad faith", a claim which defendants vehemently deny, "any claim to them is nonetheless barred because the prescriptive period expired, at the very latest, in 1984, thirty years after the Wildensteins became the legal owners of the last manuscripts which were returned to them in 1952," notwithstanding the fact that the Wildensteins did not publicize the fact that they were holding these precious manuscripts.

According to Professor Vaisse, "[t]he Ordinance of April 11, 1945, does not contain any provision which provides that the claimant might be relieved of the time bar provided for by Article 5 of the Ordinance, even if it was materially impossible for him to file a declaration before December 31, 1947", and does not "provide for a derogation from Articles 2262 and 2279 of the Civil Code, once the two year period after the return of the property has expired."

Plaintiffs, however, have submitted an affidavit from [*6]Raymond Le Guidec, a Professor at the School of Law of the University of Nantes. He is of the opinion that the plaintiffs' Complaint in this action "is well-founded and is admissible" under the provisions of the Special Ordinance (Order No. 45-770) of April 21, 1945.

Article 1 of the Special Ordinance of April 21, 1945 provides as follows: Individuals or legal entities or their successors whose property, rights and interests have been disposed of, even if with their substantive assistance, as a consequence of seizures, provisional administration, management, liquidation, confiscation, or any other measures falling outside the scope of the ordinary law in effect on June 10, 1940, and carried out either by virtue of alleged laws, decrees and decisions, rules and regulations, or decisions of the de facto authority claiming to be the government of the French State, or by the enemy or at its instigation, may, on the basis of the order of November 12, 1943, relating to the nullity of acts of despoliation perpetrated by or under the supervision of the enemy, and on the basis of the order of August 9, 1944, relating to the re-establishment of Republican law on the continent, have said measures declared null and void.

This nullity is lawful.

Pursuant to Article 21 of the Ordinance of April 21, 1945, Demand for nullification or cancellation is no longer admissible after expiration of a six-month period commencing on the legal date of cessation of hostilities. Nonetheless, in the event that the dispossessed owner can prove, even without force majeure, that it was materially impossible for him to act within the above prescribed time limit, the judge may extend said time.

Thus, according to Professor Le Guidec, "owners of stolen property, or their successors in title, had until December 31, 1947, to declare property seized by the enemy (D.29.10.1947) or until December 31, 1949 to demand return from a third party." However, "the plaintiff for restitution may obtain from the judge an extension of time by proving the material impossibility of [*7]acting within the statutory time period."

Plaintiffs contend that this Court should extend the prescribed time period since it was materially impossible for them to act within that time limit given the fact that it was not until September 1996 that Mr. Warin first obtained knowledge of the additional works of art looted from Mr. Kann's home.

Professor Vaisse, however, is of the opinion that [t]he Ordinance of April 21, 1945, which contains the "material impossibility" exception, is not applicable to claims for property - like the property at issue in this case - that was recovered by the French authorities and then returned to a claimant. Rather, the Ordinance of April 21, 1945 is aimed at nullifying private transfers of property, such as the original act of looting or consecutive transfers in which the property thereafter passed from purchaser to purchaser (emphasis supplied).

This interpretation is consistent with the plain language of the Ordinance of April 21, 1945 which specifically provides in Article 2 that "[w]hen nullity is established, the dispossessed owner recovers his property, rights or interests exempt from all charges and mortgages with which the buyer or the successive buyers (emphasis supplied) may have encumbered them." Likewise, Article 4 provides, in relevant part, that "[t]he buyer or successive buyers (emphasis supplied) are considered bad faith possessors with regard to the dispossessed owner." Moreover, Article 6 specifically provides that "[t]he dispossessed owner will repay the buyer the price paid by this buyer, as well as the interest pertaining thereto paid by the depository, all insofar as the buyer has gained therefrom..."[FN7] [*8]

This Court finds no support in the language of the statute to deem the defendants "buyers or successive buyers" of the manuscripts in question since they did not acquire the manuscripts through purchase but rather through the French Government's official restoration process.

This case is thus distinguishable from the case, Matter of Gentili Di Giuseppe, Salem, Tribunal de Grande Instance of Paris, (July 10, 1998), and Cour D Appel de Paris, 1st Chamber section A (June 2, 1999), cited by plaintiffs, in which the Court applied the Ordinance of April 21, 1945, without any reference to the Ordinance of April 11, 1945. The painting in question in that litigation, which was in the possession of the Louvre Museum, was not acquired through the French Government's official restoration process, as is the case here, but was purchased through a sale at auction in April of 1941.

Here, plaintiffs are not seeking to recover the manuscripts from a "buyer". Thus, this Court finds that the Ordinance of April 21, 1945 does not apply to the instant case.

Accordingly, this Court is constrained to find that this action is time barred pursuant to the Ordinance of April 11, 1945 and Articles 2262 and 2279 of the French Civil Code.

The Clerk may, therefore, enter judgment dismissing plaintiffs' Complaint with prejudice and without costs or disbursements.

This constitutes the decision and order of this Court.

Date:June , 2006_________________________

Barbara R. Kapnick

J.S.C. Footnotes

Footnote 1:Defendant Wildenstein & Co., Inc. is a corporation beneficially owned by the Wildenstein family. During World War II, Wildenstein & Co. Inc. was headed by Georges Wildenstein. Defendant Daniel Wildenstein is his son and defendants Alec Wildenstein and Guy Wildenstein are his grandsons.

Footnote 2:The process leading to the restoration of seven of the manuscripts at issue (as well as another manuscript which is not at issue in this lawsuit) included the submission by Mr. Wildenstein to the CRA of various documents, including a document in May of 1947 containing a description of each of the manuscripts. The "KA" notation was on the manuscripts when they were examined by the CRA and OBIP, and they were, nonetheless, restored to the Wildensteins.

Footnote 3:In her prior decision of September 4, 2001, Justice Diamond denied that portion of defendants' motion seeking summary judgment dismissing plaintiffs' complaint as time barred under the applicable provisions of the French Civil Code, finding that there were issues of fact as to (i) whether or not defendants' possession of the manuscripts was open and public at any time prior to 1996; and (ii) whether Georges Wildenstein acquired the manuscripts in good faith. Justice Diamond also did not specifically determine the applicability of the French Civil Code versus the Special Ordinances or the relationship between the various statutes. Rather, she declined to take judicial notice of the subject French Ordinances on the ground that she lacked information sufficient to enable her to determine their scope and effect, since she was not provided with any expert affidavits as to French law.

Footnote 4:These are translations of the Ordinances from the French provided by certified translators.

Footnote 5:Although plaintiffs suggest that 'manuscripts' may not be covered by the language of this statute, this Court finds that manuscripts clearly fall within the definition of "books, paintings ... and all other items of this nature." Moreover, the CRA and OBIP referenced the Special Ordinance of April 11, 1945 when they granted Mr. Wildenstein's claims for the manuscripts at issue, thus also believing that 'manuscripts' fell within the purview of that Ordinance.

Footnote 6:Article 2262 provides an absolute bar against claims for property after thirty years, so long as the holder has possessed the property in a continuous, peaceful, open and unequivocal manner. Professor Vaisse argues that open possession does not require that the possession of the property be publicized, as plaintiffs suggest. Rather, in order for plaintiffs to show that possession had not been open, plaintiffs would have to prove active concealment of the manuscripts from the plaintiffs, involving suspicious circumstances - for instance, if the Wildensteins had erased the "KA" markings, which they did not.

Footnote 7:Plaintiffs have provided this Court with a copy of the Journal Officiel De La République Francais - Debats Parlementaires - Assemblee National, which includes a dialogue held on October 5, 2004 between the French Minister of Culture and Communications and a member of the French National Assembly regarding whether looted artwork still in the possession of French public institutions could be recovered under the Ordinance of April 21, 1945. The Minister stated that the Ordinance of April 21, 1945 remains in full force and effect. Professor Le Guidec represents that "the French courts attach a lot of importance to" an official interpretation of the law, within the competency of the Ministry, and urges this Court to do the same in this case. However, defendants have never taken the position that the Ordinance is no longer valid, but rather have argued that the Ordinance of April 11, 1945, as opposed to the Ordinance of April 21, 1945, governs the facts of this dispute.