Heated U.S. restitution suit continues over long-lost Modigliani valued at approximately $30 million

Posted on: February 21, 2020 by

Pit a billionaire art collector against a French farmer, add in a mysterious offshore company and a Modernist painting confiscated by the Nazis and missing for over a half-century and – voilà – you have the makings of a highly contentious lawsuit.

Modigliani’s Seated Man With a Cane

Those are the facts swirling in an ongoing case involving Seated Man With a Cane, a 1918 oil on canvas by Italian painter and sculptor Amedeo Modigliani. The painting was owned by Jewish Parisian art dealer Oscar Stettiner during World War II and taken by Hitler’s agents.[1] Megacollector Davide Nahmad currently controls the painting and has it stored in a Geneva warehouse.[2] Having ignored demands for its return by Stettiner’s grandson, Nahmad now finds himself squarely under the jurisdiction and heir-friendly laws and policy of the Supreme Court of the State of New York.[3]

The painting’s muddled provenance

In 1930, Seated Man With a Cane appeared in the Venice Biennale on loan from Stettiner.[4] Nine years later, Stettiner left the painting behind as he fled his home to avoid advancing Nazi troops.[5] Just after D-Day, the Nazis auctioned it for a below-market price to John Van der Klip who, a few years later, falsely denied ownership of the painting when Stettiner prevailed in a French civil claim that voided the 1944 sale.[6] Misdirected by Van der Klip’s false information that the painting was sold to an American, Stettiner searched for the painting without success until his death in 1948.[7]

The painting did not appear again until 1996 when it was auctioned at Christie’s in London to the International Art Centre (IAC), a Panamanian offshore entity, for over $3 million.[8]

In 2011, Stettiner’s heir, Phillippe Maestracci, who lives in France and is reported to be a farmer, learned of its whereabouts and twice demanded its return from the Nahmads.[9]  After both demands were ignored, Maestracci commenced legal proceedings against Nahmad, his son, his son’s namesake gallery, and IAC.[10]

 Nahmad’s relationship with IAC

Davide Nahmad is the alleged principal of IAC.[11] Wielding this control, it is further alleged that he “used [IAC] to conceal his name, and thus the name of the owner of the Paintings [including Seated Man With a Cane] to perpetuate a wrong.”[12] This, along with a fulsome list of other allegations, supported the Court’s finding that Nahmad is the alter ego of IAC, and thus triggered personal jurisdiction over Nahmad.[13]

The New York court’s jurisdiction over IAC was based on its failure to answer Maestracci’s demands, which the Court deemed to be tortious conduct.

HEAR Act and choice of law

The Nahmads have twice failed to avoid the application of the Holocaust Expropriated Art Recovery Act of 2016, US legislation that extends the time within which suits can be brought to recover Nazi-looted property.[14] In 2017, New York’s appellate court ruled that the HEAR Act’s statute of limitations would be applied because HEAR preempts state law, rejecting the defendants’ argument that HEAR could be displaced by a choice of law analysis.[15] In 2018, New York’s lower court noted and affirmed this prior appellate decision.

The Court also rejected the Nahmads’ request for application of the substantive laws of France or, alternatively, Switzerland.[16] The Court applied an ‘interest analysis’ that calls for use of the law of the jurisdiction with the greatest interest in a lawsuit’s outcome. New York was found to have a “vested interest in protecting its stream of commerce from those who would seek to profit from plunder and pillage”, and that interest strongly outweighed the interests of other jurisdictions.[17] “New York markets are not now, and shall not become, a safe harbor for the fruits of property pillaged during the course of the Nazi genocide.”[18]

Moreover, the Court noted that, unlike the laws of France and Switzerland, New York law “expressly voids a transaction to a thief and, if the thief sells the painting, requires the owners to make a diligent inquiry and a demand upon a good faith purchaser”.[19]

Nahmad’s burden to investigate

In a replevin action in which the conduct of both the prior owner and subsequent purchaser of a stolen Chagall gouache were at issue, the New York Court of Appeals held that “the burden of investigating the provenance of a work of art [is on] the potential purchaser.”[20] Yet, it does not appear Nahmad, as alter ego of IAC, investigated the painting’s provenance prior to purchase, other than to rely on the 1996 Christies catalogue, which contained numerous reported errors.[21] The 1996 catalogue states the painting was sold by an anonymous owner circa 1940 to 1945 (omitting reference to Stettiner); names the 1944 purchaser as Van der Klip’s not-yet-born heir; and “misidentified” the Painting with the incorrect lot number from the Venice Biennale.[22]

A red flag in the 1996 catalogue is its reference to anonymous ownership during the war. A search of available records – the 1930 Venice Biennale archives and the French court records being two examples – indicate ownership of the painting lay with Stettiner during those volatile years.

The contested evidence

The Nahmads deny Seated Man With a Cane is the same painting owned by Stettiner.[23] However, Van der Klip’s family has confirmed it was the same painting purchased by Van der Klip at the 1944 auction and remained with the family, out of public view, until 1996: “[t]his Painting was stored and not hung on a wall”.[24] They also confirmed that Van der Klip’s heirs consigned the Painting for the 1996 auction.[25]

It is reported that further evidence to support Stettiner’s ownership recently surfaced from a Paris archive. A photograph of the painting with a note dated 1950 reads in French, “Modigliani. Stettiner Family. Stolen. Sought in America.”[26]

The Nahmads dispute the authenticity of this evidence.[27]

The painting’s legacy

Through the acts of the Third Reich, Seated Man With a Cane was removed from the hands of its then owner nearly a lifetime ago. Its reclusive existence since then – stored first with the Van der Klips and now in a duty-free warehouse – has kept it out of public view. As the saga surrounding its title escalates, it is hoped that a resolution as to this painting’s ownership can soon be reached.

 

(Image: Public Domain via Wikimedia Commons)

[1] Gowen v. Helly Nahmed Gallery, Inc. Index No. 650646/2014, Doc. No. 489, Verified Amended and Supplemental Complaint at Para 42, 49-51. https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=OBSWMTtt1mkVJ44j5jMCJw==&display=all&courtType=New%20York%20County%20Supreme%20Court&resultsPageNum=1

[2] Gowen, Doc. No. 2208, Plaintiff’s Memorandum of Law in Support of Its Order to Show Cause at 4-5.

[3] Gowen, May 8, 2018 Opinion at 6-7.

[4] Am. Comp. at Para 58.

[5] Am. Comp. at Para 42.

[6] Am. Comp. at Para 34-58; Memo at 3, 7, 10.

[7] Am. Comp. at Para 43-44, 52, 57-58.

[8] Memo at 6; Am. Comp. at Para 59.

[9] Am. Comp. at Para 72-73.

[10] Am. Comp. at Para 74-75, 78-80.

[11] Am. Comp. at Para 21.

[12] Opinion at 6-7.

[13] Opinion at 6-7.

[14] Pub. L. 114-308, December 16, 2016, 130 Stat 1524; Opinion at 14-15.

[15] Maestracci v. Helly Nahmad Gallery, Inc., 155 A.D.3d 401, 404, 63 N.Y.S.3d 376 (1st Dep’t 2017).

[16] Opinion at 17-20.

[17] Opinion at 17-18.

[18] Opinion at 18.

[19] Opinion at 18 (emphasis added)(citing Bakalar v. Vavra, 619 F.3d 136, 143 (2d Cir. 2010); Solomon R. Guggenheim Found. V. Lubell, 77 N.Y.2d 311, 319-320, 569 N.E.2d 426, 567 N.Y.S.2d 623 (1991).

[20] Memo at 6, quoting Lubell, 77 N.Y. 311, 320-321. [Is this publicly accessible? Can we link to it?]

[21] Opinion at 2; Am. Comp. at Para 59, 62.

[22] Memo at 7; Opinion at 2; Am. Comp. at Para 59, 62.

[23] Gowen, Doc. No. 1820, First Amended Verified Answer and Counterclaim at 2-3.

[24] Gowen, Doc. No. 894, May 21, 2016 Eve Livengood Letter at 3.

[25] Memo at 7.

[26] Gowen, Doc. No. 2192; www.theartnewspaper.com/news/new-evidence-cited-in-heir-s-modigliani-restitution-claim. [Let’s link to this article]

[27] Id.