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August 16, 1984


The opinion of the court was delivered by: SPRIZZO



 Plaintiff, Robert Owen Lehman, commenced this diversity action against his former wife, Aki Eveline Lehman, to recover possession or, in the alternative, the value of forty-three objects of art that he claims to own. *fn1" His pleadings allege causes of action in replevin and conversion, and for breach of a bailment agreement. *fn2" The action was tried before this Court, and the parties filed post-trial memoranda. The Court heard oral argument on November 28, 1983; thereafter, the parties submitted additional correspondence. Having reviewed the submissions of both parties, the Court renders the following findings of fact and conclusions of law.


 1. Mr. and Mrs. Lehman were married in April 1964. They physically separated in late 1971. At that time, the Lehmans were living in their London home (the "White House") with their two young children. At the time of the Lehman's separation, the items of art at issue in this proceeding were all in the White House.

 2. When the parties separated, Mrs. Lehman retained the forty-three items of art in the White House. *fn3" Shortly thereafter, in February 1972, she and the children moved to a house in Paris, France (the "Paris House") and took the artwork with them. *fn4"

 3. In October 1974, the Lehmans entered into a separation agreement which, inter alia, provided for alimony and support for Mrs. Lehman and set forth who was entitled to which items of art. *fn5" That agreement, however, specifically stated that, in the event the Lehmans were not divorced by June 30, 1976, its terms would not take effect and the rights of the parties would revert to the status quo existing prior to the execution of the agreement.

 4. Although Mr. Lehman commenced a divorce action in New York state court, a judgment of divorce was not obtained prior to June 30, 1976. *fn6" As a result, Mrs. Lehman became entitled to an independent determination of her alimony and support, and ownership of the artwork reverted to the status existing prior to the execution of the separation agreement.

 5. From July 1976 until January 1980, the parties intermittently negotiated and litigated over the issues of alimony and support. On several occasions during this period, Mr. Lehman, either personally or through his attorneys, demanded that the artwork be returned to him. On each occasion, counsel mutually decided to wait to resolve issues concerning the artwork until after they settled the alimony and support issues.

 Ownership of the Artwork

 6. Each of the parties claims to own all forty-three items of art. Mr. Lehman contends that, with one exception, he acquired ownership of the items by either purchasing them himself or receiving them as gifts from his father. *fn7" Mrs. Lehman claims that she and/or her children acquired ownership of the items in a variety of ways -- by purchasing them herself with her own or joint funds, by her husband's purchase of them with joint funds, and by gift from her husband or her father-in-law.

 7. Mrs. Lehman's claim of ownership over all of the artwork is inconsistent with the position she took earlier in this litigation in responding to one of plaintiff's interrogatories -- when she asserted ownership over only eight items. *fn8" It is also inconsistent with her conduct prior to the commencement of this litigation. First, between July 1976 and December 1979, Mr. Lehman or his attorneys made several requests that Mrs. Lehman return the artwork to her husband. At no time did she respond to those requests by contesting her husband's claim to the property and asserting instead that she was the proper owner. Second, when questioned in the state matrimonial proceeding regarding the artwork, she also did not claim to own all forty-three items. *fn9"

 8. Since Mrs. Lehman's interrogatory response only asserted ownership of eight items, and in light of her previous failure to claim ownership over all of the artwork, the Court finds that plaintiff, Robert Lehman, is the exclusive owner of thirty-five of the forty-three items. In so finding, the Court primarily relies upon Mrs. Lehman's response to plaintiff's interrogatory; however, it also relies upon her overall lack of credibility in explaining how she came to own those thirty-five items.

 9. The remaining eight items are those enumerated in Mrs. Lehman's interrogatory response: # 2 -- Costa Rican stone figure; # 3 -- Indian stone statue; # 6 -- Byzantine tapestry Flemish; # 7 -- Benin bronze cock; # 12 -- Ashanti carved wood door; # 37 -- one Shepard drawing; *fn10" # 40 -- model of steam engine; and either # 22 or 23 or 24 -- cassone. *fn11"

 10. The Court finds that plaintiff, Robert Lehman, is the exclusive owner of items ## 2, 6, 7, 12, 22, 23, and 24. In so finding, the Court specifically rejects the testimony of Mrs. Lehman as to how she came to own the artwork and accepts the testimony of plaintiff and his witness, Dr. George Szabo, curator of the Robert Lehman Art Collection at the Metropolitan Museum of Art.

 11. Items ## 3, 37, and 40 were purchased on Mr. and Mrs. Lehman's joint checking account. *fn12" The Court therefore finds that they are owned jointly by Mr. and Mrs. Lehman.

 Possession of the Property

 12. Mr. Lehman left the items in London, in his wife's possession, at the time of their separation. He did so for safekeeping and with the understanding that he owned the items and could repossess them on demand.

 13. Mrs. Lehman took the items with her when she and the children moved to Paris in 1972.

 14. At no time was any of the artwork returned to plaintiff.

 15. Items ## 2, 3, 5, 6, 7, 12, 22, 23, 24, 37, 40, 41, and three of the twenty-two drawings comprised by item # 37 were in Mrs. Lehman's possession when this action commenced. *fn13"

 16. The Court is unable to find by a preponderance of the evidence that the remaining items were in defendant's possession in July 1980, when this action was commenced. The Court does, however, find that Mrs. Lehman has failed to explain adequately what happened to those items. Her testimony that they were somehow destroyed, lost, stolen, are missing was incredible and supported by no corroborating evidence. *fn14"


 1. Plaintiff, Robert Lehman, is the exclusive owner of all of the items of art except ## 3, 37, and 40, which he owns jointly with the defendant.

 2. When Mr. Lehman left the artwork in his wife's possession at the time of their separation, his wife became a bailee of the property.That bailment continued after the terms of the separation agreement became a nullity in 1976.

 3. Plaintiff established his prima facie case for conversion by showing that he owned the artwork, that he placed the property in his wife's possession, and that she refused to return it upon demand. *fn15" See I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 664-66, 431 N.Y.S.2d 372, 376-78, 409 N.E.2d 849, 853-55 (1980); Damast v. New Concepts in Jewelry Ltd., 86 A.D.2d 886, 886, 447 N.Y.S.2d 530, 531 (2d Dep't 1982); see also 23 N.Y. Jur. 2d Conversion ยง 76, at 312 (1982).

 4. Since Mrs. Lehman refused to return the property to the plaintiff, and since she failed to explain adequately what became of the missing items she is liable as a converter with respect to all items not in her possession at the time this action was commenced. *fn16"

 5. With respect to the jointly owned property (items ## 3, 37, and 40), plaintiff is entitled to one half the value of those items at the time of trial. *fn17"

 6. With respect to all items that were in defendant's possession when this action was commenced (except the jointly owned items -- ## 3, 37, 40), plaintiff is entitled to a writ of replevin and possession of those items or, in the alternative, their value at the time of trial. *fn18"

 7. With respect to the remaining items, plaintiff is entitled to recover their value at the time and place of conversion. *fn19"

 8. The Court rejects defendant's affirmative defense that this action is barred by the statute of limitations. *fn20"


 In accordance with the foregoing findings of fact and conclusions of law, plaintiff is declared to be the exclusive owner of items ## 1, 2, 4-36, 38, 39, 41-43. He is entitled to recover damages from the defendant for conversion of items ## 1, 4, 8-11, 13-21, 25-36, 38, 39, 42, and 43. The determination of those damages will be referred to a Magistrate. The Court orders that defendant return items ## 2, 5, 6, 7, 12, 22, 23, 24, and 41 to the plaintiff. If a writ of replevin cannot be satisfied with respect to those items, plaintiff is entitled to their valueat the time of trial.

 Plaintiff and defendant are declared to be joint owners of items ## 3, 37, and 40. The parties and their attorneys are directed to confer regarding those items to resolve whether plaintiff or defendant is to have possession and sole ownership.The party not receiving possession and sole ownership is entitled to receive one half of the value of the item at the time of trial.

 Pre-judgment interest is awarded in accordance with the applicable rate under New York law. Attorneys for the parties are directed to confer and submit a joint proposed order and judgment to this Court in accordance with this opinion.


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