Recently, your faithful lawblogger attended a seminar at the local bar association which was emceed by Nassau County Surrogate John Riordan. The surrogate took this opportunity to discuss  the recently decided case of Schoeps v. Andrew Lloyd Webber Art Foundation which is reported at 884 NYS2d396. This First Department Appellate Division case is of interest on several levels. It deals with the attempt of  a German national to recover a multi-million dollar Picasso painting which he alleged was part of a huge art collection sold for a fraction of its true value when the Nazis were seizing Jewish assets in pre-war Germany.

Relying on German law which provides that ownership rights of property vest in the heirs at death, Schoeps brought suit in New York without first obtaining letters of administration appointing him as the legal representative of the deceased. Schoeps maintained that if a German court would recognize his status, an American court should afford him the same right pursuant to the principles of comity. He had filed a complaint in United States District Court for the Southern District of New York seeking to block the sale of the Picasso by the Andrew Lloyd Webber Foundation at an auction at Christies in New York. After this complaint was dismissed for lack of federal jurisdiction, the defendant opted to withdraw the piece from auction and returned it to London on the very same day that plaintiff Schoeps sued in the New York County Supreme Court seeking to impose a constructive trust and damages for conversion among other things. The lower court granted a motion to dismiss and plaintiff appealed.

Citing New York law that "absent extraordinary circumstances, even a party who is the sole beneficiary of the estate ‘cannot act on behalf of the estate or exercise…fiduciary’s rights without respect to estate property’" the court ultimately affirmed the lower court’s decision. The catch here is that the court, in this decision now recognizes that "extraordinary circumstances" might exist such as would give the claimant the right to act in New York without first obtaining letters. The problem here was that Schoeps failed to establish the existence of extraordinary circumstances . He might possibly have succeeded had (as the court notes) he provided a verified provenance of the painting showing decisively that it had been in his family prior to the Nazi takeover of Germany. He also failed to provide "an affidavit from an expert in the law of the foreign jurisdiction concerning inheritance rights together with certified documentation from that jurisdiction formally certifying his right to pursue his claim.

In essence, this case is a cautionary lesson for the practitioner. Here, plaintiff had a legal mountain to climb with a reward worth millions at the peak. Though the challenge was formidable, he also could have had the tools to succeed –the expert opinions and certifications noted by the court– had he only made a reasonable effort to obtain them. What would the outcome of this case have been had plaintiff taken the extra time and effort to be thoroughly prepared to establish the existence of extraordinary circumstances? One can only wonder!