Geore Gowen as LIMITED ANCILLARY ADMINISTRATOR OF THE ESTATE OF OSCAR STETTINER, Plaintiff,
Helly Nahmad Gallery, Inc., DAVID NAHMAD, HELLY NAHMAD, INTERNATIONAL ART CENTER, S.A., Defendants.
Attorneys for Plaintiffs: Landrigan and Aurnou, LLP.
M. Aurnou, Esq. Phillip C. Landrigan, Esq. Attorneys for
Defendant: Aaron Richard Golub, Esquire, P.C.
Nehemiah S. Glanc, Esq. Aaron Richard Golub, Esq. Russell I.
move to dismiss the complaint based upon CPLR 3211(a)(1),
CPLR 3211(a)(2), CPLR 3211(a)(3), CPLR 3211(a)(4), CPLR
3211(a)(5), CPLR 3211(a)(7), CPLR 3211(a)(8), CPLR
3211(a)(10), CPLR 327 (forum non conveniens), CPLR 1001 and
1003, CPLR 3025, and CPLR 306-b.
further move to have this court take judicial notice of
foreign laws pursuant to CPLR 4511.
a case involving Amadeo Modigliani's Seated Man with a
Cane, 1918 ("the Painting"), a painting that was
allegedly taken by the Nazis and was lost for over a
half-century. See Amen. Comp. ¶¶1, 3, 34-58. This
action is brought by George Gowen as the Ancillary
Administrator for the Estate of Oscar Stettiner, the original
owner of the painting. Id. at ¶4.
Stettiner was a Jewish art dealer who both lived and worked
in Paris, France in the 1930's. Amen. Comp. ¶38. The
Painting was part of Oscar Stettiner's private
collection. Id. at ¶¶ 38-40.
in 1933 and lasting until their defeat in 1945, the Nazi
Reich enacted laws which confiscated the possessions of
Jewish persons in occupied territory. Amen. Comp.
¶¶ 34-37. In 1939, as the Nazi's advanced
toward France, Oscar Stettiner fled his Paris home, leaving
behind many possessions, including the Painting. Id. at
¶42. He took up residence at a home he owned in La
Force, Dordogne, France, this area remained unoccupied by the
Nazis through the end of World War II. Id. at ¶43.
the period of the Nazi occupation of Paris, possessions which
had belonged to Jewish individuals were assigned to a
Temporary Administrator for auction. Amen. Comp at
¶¶ 47, 48. Oscar Stettiner's property,
including the Painting, was taken into custody by Marcel
Philippon who was appointed to be the Temporary Minister of
Oscar Stettiner's Parisian Estate. Id. at ¶49.
Marcel Philippon held four public auctions in 1943 and 1944;
the Painting was sold at one of these auctions on July 3,
1944. Amen. Comp. at ¶¶ 50-51.
1946, forced sales of property by the Nazi regime were
declared null and void; Oscar Stettiner is alleged to have
obtained an order granting the return of the Painting from
the courts of France on July 31, 1946. Id. at ¶52.
Subsequent to obtaining that Order Oscar Stettiner, and his
heirs, attempted to locate the Painting to no avail. Id. at
¶¶ 57-58. In 1948, Oscar Stettiner died at his home
in La Force, leaving behind a wife and two children without
having discovered the location of the Painting.
Id. at ¶¶ 43, 44.
The Elusiveness of the Painting and Ownership by IAC
1930, Oscar Stettiner exhibited the Painting at the Venice
Biennale.  The evidence of ownership as
catalogued by the Venice Bienale provides the basis for
Stettiner's claim of title to the Painting. See id
at ¶58. Despite the reasonable efforts of Oscar
Stettiner and his heirs to locate the Painting, it eluded
them for years. Amen. Comp. Â¶57-58 During a 1996
auction at Christies in London, the Painting was
misidentified as being a different painting, with an owner
other than Stettiner, where it was bought by Defendant
International Art Center. See id. at Â¶59. At the
1996 auction, the Painting was identified as having been sold
by an Anoynmous seller between 1940 and 1945 to a J.
Livengood in Paris and "thence by descent to the present
owners". Amen. Comp. Â¶62.
Discovery of the Painting by Oscar Stettiner's Heir
2005-2006, the Defendants exhibited the painting at Defendant
Helly Nahmad Gallery. In 2008, the Painting was offered at
auction at Sotheby's in New York City. Id. at
Â¶Â¶64-67. After failing to sell the Painting at the 2008
auction, Defendants purportedly moved the painting to a
warehouse in Switzerland.  See id at Â¶70. On February
28, 2011, and again on March 29, 2011, Phillippe Maestracci,
a French resident and sole heir to the Estate of Oscar
Stettiner, wrote the Defendants through counsel demanding the
return of the Painting. See id Â¶72-73. The
Defendants did not respond to this demand. Id. at
¶74. Thereafter, Philippe Maestracci commenced an action
in the Southern District of New York for the return of the
Painting. Id. at ¶75. It was during the
discovery phase of the federal action that International Art
Center was revealed to be the owner of the Painting,
jeopardizing diversity jurisdiction. Id. at Â¶76.
Maestracci then withdrew the federal action without
prejudice. Id. at ¶78. In 2014, the Plaintiff
commenced the present action seeking the return of the
Painting. Id. at Â¶Â¶79-80.
the complexity of the issues involved in this decision the
court has subdivided this opinion into a number of sections.
Section A addresses the general legal standards of a motion
to dismiss pursuant to CPLR 3211 and, given the extensive
documentary evidence submitted by both parties, the
heightened standards of CPLR 3211(a)(1). Section B of this
decision addresses Defendants' argument that there is no
personal jurisdiction over Defendants Davide Nahmad and
International Art Center pursuant to CPLR 3211(a)(8). Section
C examines the amendment of the complaint without first
seeking leave of the court. Section D discusses the
Defendants' argument that there is no subject matter
jurisdiction over the Painting pursuant to CPLR 3211(a)(2).
Section E addresses a later filed turnover proceeding,
pending before the Surrogate Court of New York County,
wherein Plaintiff George Gowen, in his capacity as limited
ancillary administrator of the estate of Oscar Stettiner, and
Defendant International Art Center are also parties. Section
F discusses the Defendants argument that there are missing,
necessary parties, pursuant to CPLR 3211(a)(10). Section G
addresses a related argument made by the Defendants that the
Plaintiff lacks capacity to assert claims under CPLR
3211(a)(3). Section H then examines the general argument that
the Plaintiff has failed to state claims for Declaratory
Judgment, Conversion, and Replevin under CPLR 3211(a)(7).
Section I discusses the applicable statute of limitations.
Section J addresses the Defendants' foreign affairs
arguments including the Act of State Doctrine, the principle
of international comity, the conflict of laws, and the effect
of judicially noticing foreign law pursuant to CPLR 4511.
Section K examines the Defendants' argument that New York
is an inconvenient forum. Last of all, Section L addresses
the Defendants' arguments raised under the doctrine of
Legal Standards of CPLR 3211 
Court, recognizing the multiple provisions under CPLR 3211 by
which the Defendants seek dismissal, notes that the general
legal standard of a motion to dismiss brought under CPLR 3211
is to afford the pleading a liberal construction, accepting
the facts as alleged to be true, and according the Plaintiff
the benefit of every possible favorable inference. See
Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). Under CPLR
3211(a)(1), even where documentary evidence seems to
controvert the pleadings, dismissal is warranted
only where that documentary evidence
conclusively establishes a defense to the asserted
claims as a matter of law. Id. (emphasis added). The
caveat to this treatment, however, is that the allegations
can neither consist of bare legal conclusions, nor can the
factual claims be flatly contradicted by documentary
evidence. See Myers v. Schneiderman, 30 N.Y.3d 1, 11
(2017) reargument denied, 30 N.Y.3d 1009 (2017)
citing Simkin v Blank, 19 N.Y.3d 46, 52 (2012).
standards, which govern the favorable treatment given to the
complaint, underlie this Court's consideration as to each
of the Defendants' arguments. Given the vast number of
exhibits proffered by both parties, and the need to address
this documentary evidence throughout, this Court also
considers the standard set forth under CPLR 3211(a)(1),
wherein documentary evidence conclusively establishes a
defense as a matter of law, to underlie each of its
CPLR 3211(a)(8) - Personal Jurisdiction over the
International Art Center and Davide Nahmad argue that this
court lacks personal jurisdiction over them as they are
neither residents nor domiciliaries of New York nor have they
conducted business in New York sufficient to establish
personal jurisdiction over them. Defendant Davide Nahmad, in
particular, states he does not have a residence in New York,
does not conduct business in New York, and was not served
properly through an affidavit. The court initially notes that
this is not conclusive documentary evidence warranting
dismissal under CPLR 3211(a)(1). See generally David
Nahmad Aff; see also Tsimerman v. Janoff, 40
A.D.3d 242, 242-243 (1st Dep't 2007) (holding affidavits
do not constitute conclusive documentary evidence).
jurisdiction is conveyed over a Defendant under CPLR 302.
Here Plaintiff argues that CPLR 302(a)(1) conveys personal
jurisdiction over the Defendants by virtue of their
conducting business in the state of New York. Plaintiff
further argues that, under CPLR 302(a)(2), personal
jurisdiction is also acquired over the Defendants through
their committing a tortious act in the state of New York.
Defendant Davide Nahmad, specifically, the Plaintiff argues
that personal jurisdiction is acquired by and through alleged
alter egos, Defendants International Art Center and Helly
Nahmad Galleries. See Amen. Comp. ¶18-21. Aurnou
2018 Affirm. Ex. 12 (NYSCEF Doc. No. 1620) (Sotheby's
Email); Aurnou 2016 Affirm ¶¶33-35 (NYSCEF Doc.
Nos. 1621 and 1655) (also annexed to the 2018 affirmation as
Ex. 13); Aurnou 2018 Affirm. Ex. 24 (NYSCEF Doc. No. 1633) (a
New York Times article quoting David Nahmad as having said
"the International Art Center is me personally"...
"it's David Nahmad").
answering the question of personal jurisdiction, this Court
will first address the issue of whether it has acquired
personal jurisdiction over Defendant International Art
Center. The Court will next address the issue of whether the
Plaintiff has sufficiently pleaded whether International Art
Center can be construed to be merely the alter ego of Davide
Nahmad such that personal jurisdiction would be extended to
them. The Court will then turn to the Plaintiff's second
allegation of alter ego, namely whether Davide Nahmad or
International Art Center could be construed to be alter egos
of Defendant Helly Nahmad Gallery, Inc., a New York
Personal Jurisdiction over Defendant International Art
concerned a related action before the Surrogate Court of New
York County, the Appellate Division, First Department, stated
"a court may exercise personal jurisdiction over any
nondomiciliary who, in person or through an agent, transacts
any business within the state or contracts anywhere to supply
goods or services in the state or commits a tortious act
within the state or regularly does or solicits business or
engages in any other persistent course of conduct. The
commission of some single or occasional acts of an agent
in a state may be enough to subject a corporation to specific
jurisdiction in that state with respect to suits relating to
that in-state activity." Estate of
Stettiner, 148 A.D.3d 184, 192 (1st Dep't 2017),
leave to appeal denied sub nom. Matter of Estate
of Stettiner, 30 N.Y.3d 907 (2017) (emphasis added). The
appellate division found that personal jurisdiction existed
over International Art Center by virtue of its having offered
the Painting for sale at Sotheby's. See id at
192. The Appellate Division also found a basis for
personal jurisdiction which may have been based on the
allegations that "IAC transacted business in New York
through the Nahmads at the gallery's office in
Court acknowledges the Appellate Division's determination
that there is personal jurisdiction over the International
Art Center in the related probate matter and, independent of
the Surrogate's Court, holds that personal jurisdiction
is acquired against Defendant IAC under two grounds.
first alleges that Defendant IAC transacts business in New
York by and through Defendant Helly Nahmad and Helly Nahmad
Gallery . See Amen. Comp. ¶¶17-19, 21
(alleging that the Helly Nahmad Gallery sells pieces of art
of which Defendant IAC is the title holder). Under this
theory of engaging the Helly Nahmad Gallery to sell artwork
owned by IAC, jurisdiction is proper under CPLR 302(a)(1)
where Defendant IAC has transacted business by and through
next alleges that after the painting was exhibited at the
Nahmads' gallery, and placed into New York's stream
of commerce for auction, Oscar Stettiner's heir,
Phillippe Maestracci, made a demand in New York for the
Painting's return. See Amen Comp.
¶¶71-78. "[A] demand consists of an
assertion that one is the owner of the property and that the
one upon whom the demand is made has no rights in it other
than allowed by the demander." See Feld v.
Feld, 279 A.D.2d 393, 394-95 (1st Dep't 2001). This
demand went unanswered which, under New York's law, gives
rise to a cause of action such that personal jurisdiction
would be acquired pursuant to CPLR 302(a)(2). See
id. (noting that a refusal need not specifically use the
word "refuse"); see also Solomon R. Guggenheim
Foundation v. Lubell, 77 N.Y.2d 311, 316-317 (1991)
(stating that, under New York Law if stolen property was sold
to a good faith purchaser, a cause of action accrues when the
owner of the stolen property makes a demand upon that
purchaser for the return of that property); see also
Estate of Stettiner, 148 A.D.3d at 191 (noting that an
estate's assets can include a cause of action which arose
in New York); Maestracci v. Helly Nahmad Gallery,
Inc., 155 A.D.3d 401, 405 (1st Dep't 2017) (noting
the earliest time Maestracci became aware of Defendant IAC as
the title holder to the Painting was after the ownership
interest was revealed during the discovery phase of the prior
federal action). As a result, personal jurisdiction is
acquired over Defendant International Art Center under the
theory that it has committed tortious conduct in the State of
foregoing reasons, personal jurisdiction has been acquired
over Defendant IAC under CPLR 302 by and through it's
having conducted business in the state of New York and by the
allegation that it has committed tortious conduct in the
state of New York.
ii. Alter Ego as a Basis for Personal Jurisdiction over
alleges Defendant International Art Center is actually the
alter ego of Defendant Davide Nahmad. In order to state a
basis for alleging an alter ego such that the court can
pierce the corporate veil, the complaining party must
"establish that the owners of the entity, through their
domination of it, abused the privilege of doing business in
the corporate form to perpetrate a wrong or injustice against
the party asserting the claim such that a court in equity
will intervene." See Tap Holdings, LLC v. Orix
Finance Corp., 109 A.D.3d 167, 174 (1st Dep't, 2013)
citing Morris v. NY State Dep't of Taxation &
Fin., 82 N.Y.2d 135 (1993); see also Baby Phat
Holding Co., LLC v. Kellwood Co., 123 A.D.3d 405, 407
(2014) (noting that stating a claim under a theory of alter
ego requires a demonstration of complete domination with
respect to the transaction attacked).
determining whether the corporation was completely dominated
by another, the Court may consider factors such as "the
disregard of corporate formalities; inadequate
capitalization; intermingling of funds; overlap in ownership,
officers, directors and personnel; common office space or
telephone numbers; the degree of discretion demonstrated by
the alleged dominated corporation; whether the corporations
are treated as independent profit centers; and the payment or
guarantee of the corporation's debts by the dominating
entity... [n]o one factor is dispositive." Tap
Holdings, LLC, 109 A.D.3d at 174.
support of its contention that Defendant Davide Nahmad is the
alter ego of IAC, Plaintiff has pleaded a number of facts
supported by documentary evidence. These include the
1) Defendant, Davide Nahmad, is the principal of Defendant
IAC. See Amen. Comp. ¶21(a); see also Amen. Comp.
Exs. 7-8 (exhibit 7 is an article by WealthX, Exhibit 8
is a New York Times Article).
2) Davide Nahmad holds all of the shares of stock in
Defendant International Art Center. See Aurnou 2016
Affirm Ex. 12 (NYSCEF Doc. 1667) (a Panamanian Stock
Certificate stating Defendant IAC has 100 shares of stock and
issuing all 100 shares of stock to Defendant Davide Nahmad).
3) Plaintiff believes Defendant IAC was formed by a
law firm which has garnered a reputation for creating
"shell corporations". See Amen. Comp.
¶21(c); see also Amen. Comp. Ex. 9 (a news
article captioned "A Law Firm that Works with Oligarchs,
Money Launderers, and Dictators) (emphasis added).
4) Plaintiff alleges that Defendant Davide Nahmad has used
Defendant International Art Center to conceal his name, and
thus the name of the owner of the Paintings, to perpetuate a
wrong. See e.g. Aurnou 2018 Affirm. Ex. 24 (NYSCEF
Doc. No. 1633) (a New York Times article quoting David Nahmad
as having said "the International Art Center is me
personally"... "it's David Nahmad").
5) Plaintiff also has a good faith belief that Defendant IAC
fails to adhere to corporate formalities such as keeping
regular books and records, fails to generate income, and
fails to have an independent board of directors. See
Amen. Comp. ¶21; see also Amen Comp. Exs.
7-8; Aurnou 2016 Affirm Ex. 12 (NYSCEF Doc.
1667) (a Panamanian Stock Certificate stating Defendant IAC
has 100 shares of stock and issuing all 100 shares of stock
to Defendant Davide Nahmad); Aurnou 2016 Affirm Ex.
13 (NSCEF Doc. No. 1668) (a letter exclusively signed by
Defendant Davide Nahmad to the board of directors of
International Art Center purporting to revoke powers of
attorney to conduct corporate business).
6) Defendant Davide Nahmad is alleged to have placed
paintings owned by IAC into New York's Stream of Commerce
prior to the Painting at issue. See Amen. Comp.
¶¶ 23-26 (noting sales and profits of
Paintings purportedly owned by IAC are given to Defendant
Davide Nahmad, that Davide Nahmad has held himself out to be
the owner of Paintings, and that purchases and sales of
IAC's art have been orchestrated by Defendant Davide
Nahmad); see also Aurnou 2018 Affirm. Ex. 24 (NYSCEF
Doc. No. 1633).
7) Defendant International Art Center is alleged to be
underfunded such that the Plaintiff would be unable to
recover reasonable costs if he were to be successful on a
claim. See Amen. Comp. ¶¶20-21, 23.
8) The Painting at issue is alleged to be held in
Switzerland, but it is unclear under whose name the Painting
is held. See e.g. Amen. Comp. ¶¶15, 19-20
(noting that Defendant Davide Nahmad conducts business on
behalf of Defendatn IAC); Amen. Comp. ¶70
(noting the Painting is believed to have been moved to a
Swiss bank account under David Nahmad's, or the other
Defendants', names); Aurnou 2018 Affirm Ex. 24
(NYSCEF Doc. No. 1633) (a New York Times article quoting
David Nahmad as having said "the International Art
Center is me personally"... "it's David
these grounds, the Court finds that it has acquired personal
jurisdiction, pursuant to CPLR 302(a)(1), over Defendant
Davide Nahmad by and through his conducting business
vis-à-vis Defendant IAC and, in so doing, so
perverting its corporate form such that this court cannot
determine a substantial difference between the two
Defendants. The Court also finds that it has acquired
personal jurisdiction, pursuant to CPLR 302(a)(2), over
Defendant Davide Nahmad by and through his alter ego,
Defendant IAC, in committing tortious conduct in the State of
New York for failure to respond to the demand for the
Painting. See Solomon R. Guggenheim Foundation v.
Lubell, 77 N.Y.2d 311, 316-317 (1991).
iii. Alter Ego of ...