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Konowaloff v. Metropolitan Museum of Art

September 22, 2011

PIERRE KONOWALOFF, PLAINTIFF,
v.
THE METROPOLITAN MUSEUM OF ART, DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

INTRODUCTION

Pierre Konowaloff brings suit against the Metroplitan Museum of Art (the "Museum") to recover a painting by Paul Cezanne, entitled Madame Cezanne in the Conservatory, or Portrait of Madame Cezanne (the "Painting").*fn1 Alleging that the Painting was "taken by force and without compensation in 1918 by Russia's former Boshevik regime from its owner, Ivan Morozov," Konowaloff asserts, as Morozov's great grandson and sole heir, that he is the rightful owner of the Painting.*fn2 Konowaloff seeks injunctive and declaratory relief, granting him title and replevying the Painting from the Museum, as well as compensatory damages for the Museum's "wrongful acquisition, possession, display and retention of the Painting."*fn3 The Museum now moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), on the grounds that Konowaloff's claim is barred by the act of state doctrine, the political question doctrine, the doctrine of international comity, and the statute of limitations and laches, or, in the alternative, for failure to state a claim.*fn4 For the reasons stated below, the Museum's motion is granted.

II. BACKGROUND

A. Morozov Acquires the Painting and the Bolsheviks Seize It Ivan Morozov was a "wealthy Moscow textile merchant" with an extensive collection of modern art.*fn5 He acquired the Painting on April 29, 1911.*fn6 As a result of the March 1917 revolution in Russia, Nicholas the II was overthrown and a Provisional Government was installed, which the United States quickly recognized.*fn7 In November 1917, Lenin and the Bolsheviks seized power from the Provisional Government.*fn8 The United States did not officially recognize the Russian Socialist Federated Soviet Republic ("RSFSR") that the Bolsheviks established until 1933.*fn9
The Bolsheviks issued a multitude of decrees nationalizing private property and abolishing private property ownership.*fn10 Konowaloff alleges that "[t]ypically these decrees were directed to general categories of property or classes."*fn11 However, a December 19, 1918 decree "singled out the art collections of two families, the Morozovs and the Ostroukhovs."*fn12 Both families were "Old Believers," -- "religious schismatics who split from the official Orthodox church in the seventeenth century," and who were persecuted by the Bolsheviks.*fn13 Under the December 19 decree, "the art collection [] of I.A. Morozov, including the Painting, was [deemed] state property, to be transferred to the jurisdiction of the People's Commissariat of the Enlightenment [Narkompros]."*fn14

Members of the Bolshevik secret police and Narkompros occupied Morozov's home, looting furniture, stealing various items, and seizing Morozov's art collection.*fn15 Konowaloff alleges that "Morozov did not voluntarily relinquish the Painting nor did he receive any compensation for being deprived of his rights and interests in the Painting."*fn16 On April 11, 1919, Morozov's home was declared the "Second Museum of Western Art," though it also "served as a storage facility for confiscated art and salesroom for those buyers (mainly foreigners) interested in purchasing its contents."*fn17 Morozov, along with his wife and daughter, eventually fled in exile to England and then France, where he died in 1921.*fn18

B. The Bolsheviks Sell the Painting to Clark, Who Bequests It to the Museum Konowaloff allege that the Bolsheviks "systematically destroyed evidence of title and origin" of confiscated artworks to be sold abroad.*fn19 Leonid Krasin, who had previously worked for the Morozov family, became the Commissar of Foreign Trade and was "the main architect of the laundering system for these sales."*fn20 Krasin established the Soviet Trade Delegation in Berlin to serve as "the transit point for confiscated art being sold abroad."*fn21 Starting in 1928, the Matthiesen Gallery ("Matthiesen") in Berlin "became the main transit point for Soviet shipments of art for sale to the West."*fn22 Matthiesen was involved in "laundering illegally acquired art" from the Nazis and the Bolsheviks.*fn23
Konowaloff alleges that upon receiving stolen art from the Soviet government, Matthiesen would transfer funds into Soviet bank accounts in Berlin and Zurich.*fn24 Matthiesen would then frequently transfer the artworks to the P. & D. Colnaghi ("Colnaghi") gallery in London and from there to the Knoedler & Company ("Knoedler") gallery in New York City.*fn25 Each gallery would earn a 7.5-10% commission for handling the artwork.*fn26 Konowaloff alleges that these parties -- together with Stephen C. Clark in this particular transaction -- were engaged in a "partnership and conspiracy to sell Bolshevik looted art abroad."*fn27

Clark was a lifelong New York State resident and an heir to the Singer Manufacturing Company fortune.*fn28 He was also a "sophisticated art collector," acquiring his first Renoir in 1916.*fn29 Clark helped to open the new Museum of Modern Art ("MOMA") in 1929, later becoming its president and chairman of the board.*fn30 He also became a trustee of the Metropolitan Museum of Art in 1932.*fn31

Clark acquired numerous paintings from Colnaghi and from Knoedler.*fn32 Alfred Hamilton Barr, Jr., the first MOMA director, who frequently advised Clark on art purchases, "is likely to have identified the Painting for Clark."*fn33 Barr traveled to Moscow in 1928, where he visited the Museum of Modern Art, which housed the Painting at that time. Barr knew that at least part of that museum's collection had belonged to Morozov.*fn34
Clark directed Knoedler to purchase the Painting for him in secret, along with three others -- Edward Degas' Singer in Green, Pierre-Auguste Renoir's A Waitress at Duval's Restaurant, and Vincent Van Gogh's The Night Cafe.*fn35 The Painting was shipped from Berlin through London to New York, where it was delivered by Knoedler to Clark on May 9, 1933.*fn36 The price for the three paintings and one additional piece was approximately $260,000, "a bargain price even by 1933 standards."*fn37

Konowaloff alleges that the sale to Clark "may have violated Soviet law."*fn38 Sovnarkom -- the Council of People's Commissars -- issued a decree on September 19, 1918, entitled "Concerning the Ban on the Export and Sale Abroad of Items of Particular Significance."*fn39 That decree "prohibited the export of objects of particular and historical importance without permission of Narkompros and ordered the preservation and registration of artworks and antiquities."*fn40

Another decree issued on October 5, 1918 "provided that the prohibition on the export of artworks applied to private persons, societies and institutions."*fn41 On May 19, 1933, "the Politburo secretly approved the sale [of the Painting] over the written protests of Andrei Bubnov, head of Narkompros and other Soviet museum officials, who specifically requested that the Painting not be sold."*fn42 Konowaloff alleges that "[t]he Politburo members who ordered the sale of the Painting were acting independently of the Soviet state and were engaged in illegal private trade with western capitalists."*fn43

Konowaloff asserts that "[t]he Soviet state, including its institutions and laws, was distinct from the Communist Party of the Soviet Union ("CPSU")."*fn44

"The Politburo was the executive arm of the CPSU consisting of five members and [the] ultimate decision-making body of the CPSU."*fn45 Although private trade was a crime under Soviet law, "power was concentrated in the hands of Politburo members and their discussions and actions were secret," so they were able to act with impunity.*fn46 The Politburo made the decisions about art sales to foreign buyers, including the artworks sold to Stephen Clark in 1933.*fn47

Konowaloff alleges that Clark "concealed the provenance of the Painting," by hanging it in his house until his death in 1960; "not acknowled[ging] the Morozov provenance until 1954;" and failing "to provide notice to Morozov or his heirs that he possessed the Painting, although . . . it was common knowledge that the Morozov and other Russian emigres were living in Paris."*fn48 Clark's estate likewise "failed to provide notice to the Morozov family or their descendants of its possession of the Painting despite their likely knowledge of the Morozovs' ...

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