Plaintiff appeals from an order of the Supreme Court, New York County(Rolando T. Acosta, J.), entered November 26, 2007, which granted defendant's motion to dismiss the complaint and denied his motion for leave to file a third amended complaint.
The opinion of the court was delivered by: Nardelli, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Luis A. Gonzalez, J.P., Eugene Nardelli, James M. Catterson, Karla Moskowitz, Dianne T. Renwick, JJ.
The genesis of this litigation occurred in 1935 in pre-war Germany, when Paul von Mendelssohn-Bartholdy, a German-Jewish banker, was allegedly forced to sell a valuable Picasso painting to a German art dealer. The issue before this Court is whether plaintiff Julius Schoeps, a German national, may pursue his claim against defendant, which acquired the painting in 1995, without first being appointed a representative of Bartholdy's estate. We hold that plaintiff lacks standing, and thus affirm the Supreme Court's dismissal of the action.
In his proposed third amended complaint, which is unverified, plaintiff Julius Schoeps states that he is a great-nephew of Bartholdy, and an heir to 12.5% of the estate. He further alleges that all of the living heirs have assigned their claims to him in this matter, but has not provided any proof of such assignments. Bartholdy was a member of a prominent Jewish family in Germany, and included among his forebears the composer Felix Mendelssohn. Prior to his death in 1935 he owned an extensive art collection, including a painting by Pablo Picasso entitled "The Absinthe Drinker (Angel Ferdinand de Soto)." According to Schoeps, Bartholdy had sold the painting to a German art dealer in 1935 under duress resulting from Nazi persecution.
Defendant, The Andrew Lloyd Webber Art Foundation, is an express charitable trust established under the laws of England and Wales, and is the current owner of the painting. It acquired the artwork in 1995 in an open auction by Sotheby's in New York.
The Foundation sought to sell the painting at a November 8, 2006 auction at Christie's in New York. Plaintiff filed a complaint against defendant in the United States District Court for the Southern District of New York, and sought temporary restraining orders to stop the sale of the painting and to prevent defendant from taking it out of the United States. That complaint was dismissed for lack of federal jurisdiction on November 7, 2006, and the restraining orders were lifted. Nonetheless, due to the controversy, the Foundation withdrew the painting from auction. It was returned to London on November 8, 2006.
On November 8, 2006, plaintiff commenced this action in Supreme Court, New York County with the filing of a summons and complaint. On November 9, 2006, he filed a first amended complaint. The complaints asserted causes of action for restitution, constructive trust, declaratory relief, replevin and conversion. The Foundation claims that it was never served with either complaint.
On March 5, 2007, plaintiff filed a second amended complaint without seeking or being granted leave to do so. Counsel for defendant returned the second amended complaint.
On or about April 5, 2007, defendant moved to dismiss the first amended complaint upon the ground, inter alia, that plaintiff lacked standing to bring the action because he had neither been appointed a representative of decedent's estate, nor did he have any other personal capacity for bringing such an action.
In opposition, Schoeps maintained that, under German law, ownership rights vested immediately in the heirs, and the appointment of a personal representative of the estate was thus unnecessary. He further contended that Bartholdy did not have a cause of action in Nazi Germany during his lifetime, and, therefore, his individual heirs had the right to file suit on their own behalf.
On May 2, 2007, plaintiff moved for leave to file a third amended complaint. The Foundation responded that the amended pleadings did not cure plaintiff's lack of ...