United States District Court, Southern District of New York
July 16, 1990
THE REPUBLIC OF TURKEY, PLAINTIFF,
THE METROPOLITAN MUSEUM OF ART, DEFENDANT.
The opinion of the court was delivered by: VINCENT L. Broderick, District Judge.
In this action the Republic of Turkey seeks to recover
artifacts in the possession of the Metropolitan Museum of Art.
Plaintiff asserts that the artifacts were excavated from burial
mounds in the Ushak region of Turkey in 1966 and exported to
the United States in contravention of Turkish law. The Republic
further claims that under Turkish law it owns all artifacts
found in Turkey. Defendant has moved for summary judgment. Oral
argument has been held.
As amended the complaint asserts two claims. The first claim
is premised on the assumption that the Museum is a bona fide
purchaser and sounds in conversion. The second claim asserts
that the Museum acted in bad faith when it purchased the
objects and that it concealed the illicit origin of the objects
through misrepresentations and other acts of concealment.
As to plaintiff's first claim, in New York an action to
recover chattel must be brought within three years of the time
the action accrues. CPLR § 214(3). An action does not accrue,
in the case of a good faith purchaser of personal property
until the person claiming to be the owner demands the return of
the property and the demand is refused. Gillet v. Roberts,
57 N.Y. 28 (1874). Thus the statutory limitations period will not
begin to run until after the owner has made a demand and the
possessor has refused to return the property. DeWeerth v.
Baldinger, 836 F.2d 103, 106 (2d Cir. 1987) (citing Menzel v.
List, 22 A.D.2d 647, 253 N.Y.S.2d 43, 44 (1st Dept. 1964), on
remand, 49 Misc.2d 300, 267 N.Y.S.2d 804 (N.Y.Co.Sup.Ct. 1966),
modified on other grounds, 28 A.D.2d 516, 279 N.Y.S.2d 608 (1st
Dept. 1967), modification rev'd, 24 N.Y.2d 91, 298 N.Y.S.2d
979, 246 N.E.2d 742 (1969)).
Relying on DeWeerth v. Baldinger, supra, defendant argues
that an owner of stolen property may not unreasonably delay
making the requisite demand. In DeWeerth, the Second Circuit,
interpreting New York law, creatively held that the owner has
"a duty of reasonable diligence in attempting to locate stolen
property, in addition to the . . . duty to make a demand for
return within a reasonable time after the current possessor is
identified." Id. at 108 (footnote omitted).
Since the instant motion was submitted, the New York
Appellate Division, First Department has decided Solomon R.
Guggenheim Foundation v. Lubell, 153 A.D.2d 143, 550 N.Y.S.2d
618 (1st Dep't 1990).*fn1 In Guggenheim, plaintiff Museum sued
for return of a Chagall painting which was
purchased by defendant from a reputable art dealer in 1967.
Defendant argued that New York's three year statute of
limitations barred the Museum's action which was commenced in
On defendant's motion the lower court dismissed plaintiff's
action as time-barred. The court found DeWeerth to be
controlling and observed that "[t]he Guggenheim's efforts [to
locate the stolen property] were minimal, much less than that
of the plaintiff in the DeWeerth case, [and] inadequate in view
of the value of the painting." N.Y.L.J., Feb. 15, 1989, p. 22,
col. 3. Thus the court dismissed the action as time-barred,
holding that plaintiff failed diligently to attempt to locate
the painting and that the action accrued in 1973.*fn2
On January 25, 1990 the Appellate Division reversed.
153 A.D.2d 143, 550 N.Y.S.2d 618 (1st Dep't 1990). After reviewing
the facts the court discussed the inadequacy of the Second
Circuit's solution to the "anomaly" presented in
[T]o eliminate the anomaly by placing the thief in
the same disfavored position as the good faith
purchaser is not to eliminate the potential for
stale, hard-to-defend claims created by a rule
which makes accrual depend on an act to be
performed by the plaintiff constrained only by his
fortuitous acquisition of the knowledge necessary
to perform the act.
Id. 550 N.Y.S.2d at 621. In the alternative, the court
When this potentiality for staleness becomes an
actuality because of the plaintiff's inexcusable
delay in performing the requisite act, or in
acquainting himself with the facts that would
enable him to perform such act, an appeal can be
made to the conscience of the court to dismiss the
action as untimely notwithstanding that it was
commenced within the statutory period . . . .
Id. The court then concluded that DeWeerth's "unreasonable
delay" requirement applied only to the equitable defense of
In support, the court observed that the Second
Circuit had failed to state when plaintiff had sufficient
knowledge to make a demand and therefore when the limitations
period began to run. "Instead, the dismissal in DeWeerth
appears to have been based not on the lapse of any particular
period of time, but on an estoppel." Id. By characterizing this
defense as laches, the court explicitly found that a showing of
prejudice as well as delay was required.*fn4
In this case, defendant argues that the Appellate Division's
decision in Guggenheim is distinguishable, urging that the
decision disagrees with DeWeerth only to the extent that the
Second Circuit extended the "unreasonable delay" rule to a case
where "a plaintiff has no knowledge of the whereabouts of his
stolen property, but would have discovered its whereabouts had
he exercised reasonable diligence." Defendant's Letter, Feb. 9,
1990, at 1-2. Defendant argues that in this case, no later than
1973 plaintiff had notice of sufficient facts to make a demand
on the Met. Defendant essentially seeks to create a distinction
between the rules applicable to cases where all the knowledge
attributed to plaintiff is implied and cases like this one,
where the Republic of Turkey allegedly had actual knowledge of
the facts needed to make a demand. Defendant further argues
that even if Guggenheim is controlling it is entitled to
summary judgment on the defense of laches, since it has been
prejudiced by the absence of witnesses and the loss of
I find that Guggenheim is applicable here and that
defendant's claims of
delay go solely to whether the defense of laches is available
and not to a defense based on the statute of limitations. Since
I further find that there are genuine issues of material fact
as to whether defendant was prejudiced by the alleged delay,
defendant's motion is denied without prejudice.
I also deny defendant's motion as to plaintiff's second claim
which assumes that defendant was not a bona fide purchaser,
since genuine issues of material fact exist as to whether
defendant purchased the artifacts in good faith.
The next conference in this case is scheduled for Wednesday,
August 8, 1990 at 4:30PM.