Index No. 16-civ-07665 AMENDED COMPLAINT
JURY TRIAL DEMANDED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAUREL ZUCKERMAN, AS ANCILLARY
ADMINISTRATRIX OF THE ESTATE OF ALICE LEFFMANN,
Plaintiff,
vs.
THE METROPOLITAN MUSEUM OF ART,
Defendant.
Case 1:16-cv-07665-LAP Document 8 Filed 11/02/16
-----
Estate of Alice Leffmann, Plaintiff vs The Metropolitan Museum of Art, Defendant DOWNLOAD AMENDED COMPLAINT
TEXT ONLY
UNITED STATES
DISTRICT
COURT SOUTHERN DISTRICT OF
NEW YORK
|
--------------------------------------------------------------
LAUREL ZUCKERMAN,
AS ANCILLARY ADMINISTRATRIX OF THE ESTATE
OF ALICE LEFFMANN,
|
x
:
:
:
:
:
|
Index No.
16-civ-07665
|
|
Plaintiff,
vs.
THE METROPOLITAN MUSEUM
OF ART, Defendant.
|
:
:
:
:
:
:
:
:
|
AMENDED COMPLAINT
JURY
TRIAL DEMANDED
|
|
--------------------------------------------------------------
|
x
|
|
Plaintiff, Laurel Zuckerman, as Ancillary
Administratrix of the estate of Alice
Leffmann, through her undersigned
counsel, Herrick, Feinstein LLP, for her
Complaint against
Defendant, alleges as
follows:
NATURE OF THE ACTION
1. This
is an action by Laurel Zuckerman, the Ancillary
Administratrix of the estate of
Alice Leffmann (the sole
heir of Paul Friedrich Leffmann) (the “Leffmann estate”),
to recover from New York’s Metropolitan Museum of Art (the “Museum”) a monumental work by
Pablo
Picasso entitled “The Actor,”
1904-1905, oil on canvas, 77 1/4 x 45 3/8 in., signed lower right
Picasso (the “Painting”), which was owned by Paul Friedrich Leffmann (“Leffmann” or “Paul”), a German
Jew,
from approximately 1912 until
1938.
2. In
1937, Paul, who
until the advent
of the Nazi
regime had
been a prosperous industrialist and investor,
and his wife, Alice, were forced to flee Germany in fear for their lives, after losing their business, livelihood, home and most of their possessions due to Nazi
persecution. The feasible escape route at
the
time was Italy, but any hope of finding a safe haven
from the Nazis in Italy was soon dashed.
Shortly
after their arrival, Mussolini and his Fascist regime increasingly
adopted and implemented the Nazi pattern of rampant anti-Semitic policies and outright physical persecution of Jews, especially
of immigrants from Austria and Germany.
By 1938, it was clear that remaining in Italy was no longer an option, and, desperate to flee, the
Leffmanns were forced to sell their remaining possession of substantial value, The Actor, at a price well below its actual value.
They left Italy a few months after the sale, in October 1938,
only
days after
the racist laws expelling foreign Jews from Italy were enacted.
3. The Leffmanns would not have disposed of this seminal work at that time, but for the Nazi and Fascist persecution to which they had been, and without doubt would continue to be,
subjected.
THE PARTIES
4. Laurel Zuckerman, the great-grandniece
of Paul and
Alice
Leffmann, received
Ancillary Letters of Administration CTA for the estate of Alice Leffmann from the Surrogate’s Court
of the State of New York, New York County, on October 18, 2010. Pursuant to 28 U.S.C.
§ 1332(c)(2), since Alice Leffmann was a Swiss domiciliary, the Ancillary Administratrix is
deemed to be a citizen of Switzerland as
well.
5. Defendant,
the
Metropolitan Museum of Art, is a New York
not-for-profit
corporation
operating as a public museum
located in New York
County, New York.
6. This
Court has subject matter
jurisdiction over this action pursuant to 28 U.S.C.
§ 1332, because there is complete diversity of citizenship between Plaintiff and Defendant, and
the matter in controversy exceeds $75,000, exclusive of interest
and costs.
7. Venue
is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(a), (b)
and
(c), because Defendant is a New York not-for-profit corporation located in New York County and
the Painting that is the subject matter
of this dispute is located
in this judicial district.
8. The Court has
jurisdiction to grant
the
relief
requested
pursuant to 28 U.S.C.
§§ 2201(a)
and 2202.
STATEMENT OF FACTS
9. In 1912, Leffmann purchased the Painting, which, until he was forced by
the circumstances in Fascist Italy
to sell it under duress in 1938, was one of his most valuable acquisitions. From 1912 until at least 1929, Leffmann exhibited the Painting at a variety of exhibitions in Germany, at which he was identified as the owner of the Painting. The Painting
was also featured
in newspaper articles, magazines and monographs during
this time.
10. During
this
time and up to the start of the Nazi period, Paul and Alice, German Jews,
led a wonderful life together in Cologne, Germany. They had sizeable assets, including
Atlantic Gummiwerk, a
rubber manufacturing
company that
was
one of the leading
concerns of
its kind in Europe, which Paul co-owned with Herbert Steinberg; real estate
investment properties in Cologne (Hohenzollernring 74 and Friesenwall 77); and their home located at Haydnstrasse 13, Köln-Lindenthal. The Leffmanns’
home included a collection of Chinese and Japanese artifacts and
other artworks, including the
masterwork by Pablo Picasso that is
the subject of this action.
11. Beginning in 1933, the world the Leffmanns knew in Germany began to shatter. Adolf
Hitler came to power and the racist laws directed against Jews quickly began to be enacted
and
enforced, leading
to the adoption of the Nuremberg Laws (“The Laws for
the Protection of German Blood and German
Honor”) on September
15, 1935. The Nuremberg laws deprived all German Jews, including
Paul and Alice, of the rights and privileges of German citizenship,
ended any
normal life or existence for Jews in Germany and relegated all Jews to a marginalized existence,
a first step toward
their mass extermination.
12. The Nuremberg Laws formalized a process of exclusion of Jews from Germany’s economic and social life. It ushered in a
process of
eventual total dispossession through what became known as “Aryanization” or “Arisierung,” first by
takeovers by “Aryans” of Jewish- owned businesses and then by forcing Jews to surrender virtually all of their assets. In this
process, all Jewish workers and managers
were dismissed, and businesses and corporations
belonging to Jewish owners were forcibly transferred
from
those owners
to non-Jewish Germans, who
“bought” them at prices officially fixed and well below market value. As a result, the
number of Jewish-owned businesses in Germany was reduced by approximately
two-thirds from
April 1933 to April 1938.
By
that time, the Nazi regime moved to the final phase of
dispossession, first requiring
Jews to register all their domestic and foreign assets and then moving to possess
themselves of all such assets.
13. On September 16, 1935, the Leffmanns were
forced to sell their home to an Aryan
German corporation, Rheinsiche Braunkohlensyndikats
GmbH Köln; on December 19, 1935, Paul and his
Jewish partner, Herbert
Steinberg, were forced to transfer ownership of
Atlantic Gummiwerk to Aloys Weyers (their non-Jewish minority business partner); and on July 27,
1936, Paul was forced to sell all of his real estate investments to Feuerversicherungsgessellschaft
Rheinland AG, yet another Aryan German corporation. In return, Paul had no choice
but to accept only nominal compensation. These were, indeed, not real sales at all, but essentially thefts by
Nazi designees of substantially everything the Leffmanns ever owned, except for The
Actor, which was, at
the
time, ever so fortuitously for them,
located in neutral Switzerland.
14. Some time prior to their departure from Germany, Paul and Alice had arranged for
The Actor to be held in Switzerland by a non-Jewish German acquaintance named Professor Heribert Reiners.
Reiners kept The Actor in his family home in Fribourg, where it remained for its entire stay in Switzerland.
For this reason only, The Actor was saved from Nazi confiscation or worse.
15. The Leffmanns’ world was falling apart piece by piece. Having
lost their home, their business and their investment properties, and witnessing the rise to power of the Nazi regime, its adoption of
radical racist policies, and the accompanying increase
in physical violence against
Jews, it became clear that the persecution of Jews in Germany was growing at an alarming rate.
Paul and Alice, like so many
other German Jews, found themselves faced with the threat of growing violence, the risk of imprisonment and possibly
deportation and death. Thus,
to avoid the loss of the property they
had
left -- not to mention their lives -- they began planning
their flight from Germany, liquidating
their remaining assets in Germany to enable them to survive
and
escape. Their lives were changed forever as they abruptly lost their wealth and identity and
became fugitives.
16. The Leffmanns finally were able to flee Germany in the spring of 1937.
By 1937, when the Leffmanns’ migration began, the Nazi regime had already put in place its ever
tightening network
of taxes, charges, and foreign exchange regulations designed to arrogate most, and subsequently all, Jewish-owned assets to itself. Emigrants were only able to leave
with a tiny fraction of their assets.
The Leffmanns, upon their escape from the Reich, consequently left having
been dispossessed of most
of what
they
once owned.
17. The
groundwork for, as Reichsmarschall Hermann Göring put it, “getting rid of the
Jews, but keeping their assets,” had been laid as early as 1934 with a change in the tax law that
declared
that the law be interpreted according to the National-Socialist ideology. This meant that Jews and
other
persecutees lost all legal recourse against
discriminatory tax
treatment and
legislation. Subsequently, tax instruments became increasingly important in the set of quasi-legal
instruments used to strip Jews of their assets.
Among these, the flight tax (“Reichsfluchtsteuer”) was prominent. But even before this, the wave of emigration following Hitler’s accession to
power had led to a tightening of the flight tax regulations not only by lowering its threshold,
but even more important, by authorizing the tax offices to require security deposits as they saw fit. This became one of the more important
instruments in the
dispossession of emigrants and would-
be emigrants, and was used, inter alia, to put Jews, especially wealthy ones, under surveillance by the foreign
exchange authorities (the “Devisenstelle”).
18. By the end of 1936 (i.e., shortly before the Leffmanns’ emigration), the increasingly
precarious foreign
exchange
position of the
Reich caused
a
further
tightening of foreign
exchange regulations, which imposed the death penalty on attempts to undercut these regulations and codified the Devisenstelle’s authority to block assets of persons found to be evading or intending to evade the regulations. Thus, even suspicion of the intention to emigrate led the
authorities with ever increasing frequency
to require a suspect to put his assets in a blocked emigrant’s account, which he could dispose of only with the approval of the Devisenstelle. Any legal transfers abroad could be made only
from such blocked accounts via the Deutsche Golddiskontbank, the government bank through which foreign exchange transactions were made (the “DeGo”), at
increasingly large discounts. In
1937
the
discount
charged by
the DeGo
exceeded 80%.
This, then, was the environment in which the Leffmanns prepared for their
flight from the Reich.
19. Another measure by which the Reich seized assets from fleeing Jews was the flight
tax. Flight tax assessments were based on wealth tax declarations, which referred to wealth in
the previous year and which were calculated at 25% of the
value
of the reported assets.
Payment of
the flight tax did not give the emigrant any right whatsoever to transfer abroad any of the remaining assets after payment of the tax.
In fact, the flight tax amount
typically would have
been considerably higher than 25% of the assets
actually owned at the time of emigration, as those
who were persecuted by
the Nazis -- as were the Leffmanns -- suffered dramatic financial
losses in the period leading
up to their emigration, so that their assets at the time of emigration
would have been considerably smaller than those on which their flight tax was assessed.
The
payment of the flight tax
was
necessary to
obtain the no-objection certification of the tax authorities, which in turn was necessary to obtain an exit permit.
In the case of the Leffmanns,
the flight tax was thus calculated at 25% of the assets they reported on their 1937 tax form, which
would have included their
total assets held in 1936.
The Leffmanns paid this flight
tax in the amount of 120,000 to 125,000 RM in cash.
20. While they would have preferred neutral Switzerland over Italy, where the Fascists
were already in power and closer relations
with Nazi Germany had begun to develop, at the time, a long-term stay in Switzerland would have been virtually impossible.
Italy, as opposed to Switzerland, was one of the few European countries still allowing the
immigration of German Jews, so that is where they
went, hoping that Italy, with its significant Jewish population, would be a safe haven
from the Nazi
onslaught.
21. In light of
the ever-tightening regulations governing the transfer
of assets, emigrants sought alternative means of moving
their funds abroad. One major avenue involved creating
a triangular agreement whereby individuals
who owned property outside the Reich and were in
need of RM would agree to exchange the currency for property, which they
would then immediately liquidate upon arrival in the new country. This is exactly the type of transaction the
Leffmanns took part in when, in December 1936, they
purchased a house and factory in Italy for
an
inflated price of RM 180,000 from the heirs of Eugenio Usenbenz from Stuttgart and pre-
agreed to sell the property
back to a
designated Italian purchaser for
lire, at a considerable loss, upon their arrival in Italy a few months later.
22. In April 1937, the Leffmanns crossed the border into Italy, going first to Milan and
then to Florence, where many
other
German Jewish refugees ended up, and where their newly acquired house and factory were located. Their hope, shared by other Jews emigrating from Austria and Germany
to Italy, was that life there could go on in some form of normalcy, which it
could not in Cologne.
23. Shortly after their arrival in Italy, as pre-agreed, the Leffmanns sold their newly-
acquired properties to an Italian businessman named Gerolamo Valli, who was a business partner of the family from Stuttgart from whom they
had
originally purchased the house and factory.
They sold the properties at a considerable loss -- for 456,500 Lira (or about 61,622 RM) -- and rented
a home in Florence at
Via Terme 29 and later
at Via di San Vito 10.
24. But the Leffmanns’ time in Italy was short-lived.
It soon became clear that the
nightmare from which they had fled was about to engulf them there as well. But moving on
meant yet again losing a significant part of their remaining
financial assets.
The Leffmanns
had
already lost two-thirds
of their initial
RM investment in
transfer costs, and they now stood to lose much of their remaining cash proceeds as the tight Italian foreign exchange
restrictions forced
them to seek conversion in “unofficial” ways. Paul was in his late sixties when they arrived in
Italy; Alice was six years his junior. They were living as refugees, unable to work in Italy, their
prior lives destroyed by Nazi persecution,
and on the run.
The Growing
Influence of
Nazi
Germany on Mussolini and Italy
25. In April 1936, Italy and Germany had secretly adopted
the Italo-German Police
Agreement, which provided for the exchange
of information, documents, evidence and
identification materials by the police with regard to all emigrants characterized as “subversives,” which by definition included German Jews residing in Italy. Pursuant to this agreement, the Gestapo could compel the Italian police to interrogate, arrest and expel any German Jewish
refugee.
26. By the fall of 1936 and into 1937, things had grown even bleaker for Jews.
On
November 1, 1936, Mussolini publicly announced the ratification of the Rome-Berlin Axis.
By
March 1937, Italian
bookshops had begun to exhibit and openly sell the notorious book, The
Protocols of the Elders of Zion, along with other anti-Semitic writings. During the summer and
fall of 1937,
the head of the Italian
Police, Arturo Bocchini, and Mussolini accepted
a proposal from the notorious
SS General Reinhard Heydrich, the chief of the Security
Service of the Reichsführer (the SS) and the German Secret State Police
(the Gestapo), to assign a member of
the German police to police
headquarters in the
ten largest Italian cities, including Florence,
where the Leffmanns resided. This facilitated the
Nazi efforts to check on “subversives,” that is,
Jewish
individuals.
27. By
the fall of 1937, anti-Semitism in Italy, including in the highest levels of the Ministry of the Interior, dashed any illusions about a longer stay in Italy for the Leffmanns. That
fall, Germany
and
Italy began to prepare for Hitler’s visit to Italy. In October, the Ministry of the
Interior created lists of all German refugees residing in Italy’s various provinces. The lists were
intended to draw clear
distinctions between “those who supported the Nazi regime” and “anti-
Nazi refugees” or Jews. This was the first time that the Italian Government had explicitly associated all German Jews with anti-Nazi Germans. This marked a turning point
in the 1936
Italo-German Police Agreement, with the Gestapo requesting these
lists so that it could monitor “subversives” in anticipation of Hitler’s visit. From the beginning of January 1938 until Hitler’s visit
in
May,
the Gestapo
received
a total of 599 lists from
the police
throughout Italy’s
provinces.
Le ffmann ’s Sale
of the Painting
28. As the situation grew increasingly
desperate for Jews living in Italy, it became clear that it would only be a matter of time before the Fascist regime’s treatment of Jews would mimic
that of Hitler’s Nazis. Paul and Alice had to make plans to leave, and this would require money.
Switzerland was where they wanted to go to escape the horrors of Nazism and Fascism and find a truly safe haven. But, as was well known at the time, passage into Switzerland, permanent or temporary, did not come easily or cheaply. Given the urgency of their situation, Paul began to
explore the possibility of selling his masterpiece, The Actor, with dealers in Paris.
The events following the Austrian
Anschluss and
Hitler’s visit
to
Italy
in
May 1938 confirmed
the
correctness of his actions -- i.e., that they would have had no choice but to turn whatever assets
they still controlled into
cash.
29. Meanwhile, conditions for Jews in Italy only grew worse. On February 17, 1938, every newspaper in Italy published a Government announcement (“Diplomatic Notice
Number
18,” issued on February 16), which stated that “[t]he Fascist Government reserves to itself the
right to keep under close observation
the activity of Jews newly arrived
in our country.”
30. In March 1938, SS General Heydrich traveled to Rome to meet with the head of the
Italian Police, Bocchini, in order to plan for Hitler’s visit. Nazi police officials were posted at 13
Police
Headquarters in border towns,
ports and large cities to conduct interrogations and house
searches. These officials, dressed in Nazi uniforms, arrived on April 10-11, 1938. Meanwhile,
on March 18, 1938, the Italian
Ministry of the Interior informed prefects in border provinces that “ex-Austrian Jewish subjects”
should be denied entry into Italy.
31. Also
in March 1938, the Italian Minister of Foreign Affairs informed the
U.S. Ambassador to Italy
that Italy would
not be participating in the international initiative to
“facilitate” the emigration of “political refugees” from Austria
and
Germany. Italian
newspapers
made clear that “political refugees” was
a synonym
for Jews.
32. In April 1938, in the face of the growing Nazi persecution spreading across Europe and
into
Italy, Paul escalated his efforts to liquidate
The Actor.
33. In September of 1936, after he had been forced by
the Nazis to part with nearly everything he owned, Leffmann had rejected an offer from the notorious art dealer, C.M. de
Hauke of Jacques Seligmann &
Co. (whom the U.S. State Department later identified as a trafficker in Nazi-looted art) to sell The Actor. Nearly two
years later, on April 12, 1938,
Leffmann, in an even more desperate state, reached out to de Hauke asking him if he would be interested
in purchasing the Painting.
34. Just days after writing to de Hauke, the situation in Italy grew even worse. From April 24-26, General Heydrich, SS Reichsführer Heinrich Himmler
(whom Hitler later entrusted with the planning and implementation of the “Final Solution”) and SS General Josef “Sepp” Dietrich,
the commander of Hitler’s Leibstandarte (Hitler’s personal army), went to Rome to
complete preparations for Hitler’s visit. For three weeks in April and May 1938 there were over
120 Gestapo and SS officers in Italy -- primarily in Florence, Rome and Naples.
The Gestapo officials and Italian police continued investigations and surveillance of “suspicious persons”
until the end of Hitler’s visit, arresting at least 80 people in Florence. The arrests were carried out by the Italian police. Many German Jewish residents fled in anticipation, and as a result, of these
arrests.
35. On May 3, Adolf Hitler arrived in Italy
for his official state visit. It was a momentous
occasion for Mussolini, and the Italian
people
turned out in the tens of thousands to greet the
German leader.
From
May 3
through
May 9,
1938,
Hitler
traveled to
Rome,
Naples and
Florence. This was no typical state visit. Mussolini, anxious to strengthen the Axis alliance, made
sure that Italy spared no expense in putting on its grandest show for Hitler. The streets of these
Italian cities were covered in thousands of Nazi swastika flags, which flew alongside
Italy’s tricolor; flowerbeds were decorated
in
the
shape of swastikas
and photographs of Mussolini and Hitler were
made into postcards and displayed in shop windows.
Parades and
military displays in honor of Hitler, attended by thousands of Italians, young and old, took place
in every city he visited. In Florence, the last city
visited by
Hitler on May 9th, city officials made
an official postmark that commemorated Hitler’s visit. Mail sent during that time was stamped
“1938 Il Führer a Firenze” and decorated with swastikas.
36. Hitler’s visit made clear that the situation in Italy
for
Jews was tense and the fear
palpable. For Leffmann, the time to flee Italy was quickly approaching, so he continued to try
to sell the Painting through de Hauke.
Trying to raise as much cash as possible for the flight and
whatever the future would bring, Leffmann responded to a letter from de Hauke, telling him that
he had already rejected an offer obtained through another
Paris dealer (presumably Käte Perls)
for U.S. $12,000 (net of commission). It is clear from the letter
that Leffmann was desperately
trying to
improve his leverage to maximize the amount of hard
currency he could
raise.
37. Violence was increasing and the persecution of Jews was on the rise. All foreign
Jews in Italy
risked arrest, and had good reason to fear possible deportation and death. Paul and Alice
were in fear of their liberty and their lives. There was no time left. So just days after telling
de Hauke that he had rejected Mrs. Perls’ low offer, in late June 1938, Leffmann sold the Painting at the very
price he told Perls and de Hauke he would not consider. He finally
accepted Käte Perls’ offer of U.S. $13,200 (U.S. $12,000 after a standard 10% selling commission), who was acting
on behalf of her ex-husband, Hugo Perls, also an art dealer, and art dealer Paul Rosenberg,
with whom Perls was buying the
Painting.
38. On July
26, 1938, Frank
Perls,
Käte’s
son, who was
also a dealer, wrote
to
automobile titan
Walter
P. Chrysler Jr.,
asking if he would be
interested in purchasing The Actor. Obviously aware of the “sensitivity” of his overture, having just acquired a Picasso masterpiece
from a German Jew on the run from Nazi Germany living in Fascist Italy for a low price that
reflected the seller’s desperate circumstances and the extraordinary prevailing conditions, he described the work as having
been purchased by
Mrs. Perls from “an Italian collector” -- an outright
lie.
39. In July 1938, the Leffmanns, as German Jews, submitted their “Directory of Jewish Assets” forms detailing all of
their assets, which the Reich
required all Jews (even those living
abroad) to complete. The penalties for failing to comply
with this requirement included “fines,
incarceration, prison,
seizure of assets.”
40. Meanwhile, the plight of the Jews in Italy
deteriorated even further.
In August 1938,
enrollment of foreign Jews in Italian schools
was prohibited. A Jewish census, in which the
Leffmanns were
forced to participate, was conducted in preparation for
the
Italian racial laws,
which were soon to follow.
A legal definition of what constituted a “Jew” was considered, and
discriminatory legislation was drafted.
The Italian government increased surveillance of Jews because of the fear that Jews would transfer their assets out of Italy or emigrate and take their
assets with them. A series of anti-Semitic publications were released, among
them the infamous “Manifesto degli scienziati razzisti” (“Manifesto of the Racial Scientists”), which attempted to provide a scientific
justification for the coming
racial laws, and the venomous magazine, “La difesa della razza” (“The
Defense of the
Race”). In addition, a
number of regional newspapers published lists of many of
the names of Jewish
families
residing in Florence.
41. On September 7, 1938, the first anti-Semitic racial laws were introduced in Italy,
including “Royal Enforceable Decree Number 1381,” which was approved by the Council of Ministers on September 1st and was published in daily newspapers on September 2nd. It was
signed by the King on September
7th and was
published in the “Gazzetta Ufficiale”
on September
12th. With this Enforceable Decree, all “alien Jews” were forbidden from residing in Italy. All
Jews who arrived in Italy after January 1, 1919 had to leave Italy within six months (i.e., by
March 12, 1939) or face forcible expulsion. Bank accounts
opened in Italy by
foreign Jews were immediately blocked. At that point in 1938, Italy’s anti-Jewish measures had become extremely draconian, and in some instances had become even harsher than the corresponding
measures enacted
in Germany.
42. The Leffmanns had no choice but
to prepare for immediate departure.
Paul had sold
The Actor not a moment too soon. Switzerland was the obvious destination. But Switzerland, which already had strict border controls, became even more difficult to enter beginning in 1938.
In
fact, it was about the worst time to try to enter Switzerland. Switzerland, following the
incorporation of Austria into the Reich, imposed visa requirements
on holders of Austrian
passports on March 28, 1938, and in April began negotiations with the Germans regarding the introduction of the notorious “J”
stamp. On August 18-19, 1938 the Swiss decided to reject all refugees without
a visa; on October 4, 1938, with an agreement
reached on the adoption of the
“J” stamp, they imposed visa requirements on German “non-Aryans.” Receiving asylum was
virtually impossible, and German and Austrian Jews could only enter Switzerland with a temporary residence permit which, given the strict controls, and asset requirements imposed by
the Swiss government, was not easy to
obtain.
43. Sometime before September 10,
1938, however, the Leffmanns managed to obtain a Toleranzbewilligung (a tolerance or temporary
residence visa) from Switzerland, valid from
September 10, 1938 to September 10, 1941.
In October 1938, just days after the enactment of the racial laws expelling them from Italy, the Leffmanns fled yet again, this time
to Switzerland, where they were allowed to stay only temporarily.
44. By the time
the
Leffmanns arrived in Switzerland,
the
Anschluss and
other
persecutory events had triggered a rising wave of flight from the Reich.
Consequently, Swiss
authorities required emigrants to pay substantial sums through a complex system of taxes and
“deposits”
(of
which the emigrant had no expectation
of recovery).
45. In October 1938, all German Jews were required to obtain a new passport issued by
the German government stamped with the letter “J” for Jude, which definitively identified them as being Jewish.
As
German
citizens who required a passport
to continue their
flight, the Leffmanns had no choice but
to comply.
46. The Leffmanns
temporarily resided
in
Bern,
Switzerland,
but,
unable to stay, prepared to flee yet again, this
time to Brazil. In addition to
bribes that were typically required
to
obtain necessary
documentation, Brazil would only
provide visas for Jews who could transfer more than 400 contos (USD $20,000) to the Banco do Brasil.
On May 7, 1941, the Leffmanns, still on the run, immigrated to Rio
de
Janeiro, Brazil,
where they lived for the next six years.
But even in Brazil, they could not escape the effects of the ongoing
war.
All German residents living
there, including the Leffmanns, were forced to pay a levy imposed by the Brazilian government of
20,000 Swiss Francs
(or
about U.S. $4,641).
47. Given
the
various payments required by Switzerland,
as well
as those
that
the
Leffmanns would need
to
enter Brazil,
the
Leffmanns depended on the
$12,000 (or
approximately
SF 52,440 in 1938) they
received from the sale of The Actor, as it constituted the
majority of the Leffmanns’ available resources in June 1938. Had the Leffmanns not fled for
Brazil when they did, they
would have likely suffered a much more tragic fate at the hands of the
Nazis
regime and its
allies.
48. The
Leffmanns were not able to return to Europe until after the War had ended. In
1947
they
settled in Zurich,
Switzerland.
49.
Paul Leffmann died on May 4, 1956 in Zurich, Switzerland at the age of 86.
He left
his entire estate to his wife, Alice
Brandenstein Leffmann.
50. Alice
Leffmann died on June 25, 1966 in Zurich, Switzerland at the age of 88. She
left her entire estate to 12 heirs (all relatives
or friends).
The Ancillary Estate of Alice Leffmann
51. In or about August 26, 2010, Nicholas John Day, the
Executor named
in the
will of Alice Anna Berta Brandenstein, a legatee
named in the will of Alice Leffmann, submitted a
Petition for Ancillary Probate for the estate of Alice Leffmann in the Surrogate’s Court of the
State of New York, New York County authorizing Laurel Zuckerman
to receive Ancillary
Letters of Administration CTA
of the estate. On October
18, 2010, Laurel Zuckerman received Ancillary Letters of Administration CTA and was named Ancillary Administratrix by the Surrogate’s Court
of the State of
New York, New York County.
The Museum’s
Acquisi ti on
and Possession of the
Painting
52. The immediate history of the Painting after it was purchased by Perls and Rosenberg
in June of 1938 is unclear, but it is known that after the purchase, the Painting
was
loaned by art dealer Paul Rosenberg
to the Museum of Modern Art (“MoMA”) in New York in 1939. In the
paperwork documenting
the loan, Rosenberg requested that MoMA
insure the Painting for
$18,000 (a difference of $6,000
or a 50% increase over what had been paid to Leffmann less than a year
earlier).
53. Sometime prior
to
October 28, 1940, the Painting was
consigned
for sale
by Rosenberg to the well-known M. Knoedler & Co. Gallery in New York, New York. On
November 14, 1941, M. Knoedler & Co. sold the Painting to Thelma Chrysler Foy for $22,500
(a difference of
U.S.
$9,300 or a 70% increase from the price paid
to Leffmann).
54. Thelma Chrysler Foy donated the Painting to the Museum in 1952, where it remains
today. The Museum accepted
this donation.
55. As a matter of law and public policy, good title to the Painting
never passed from Leffmann to Perls and Rosenberg, and thus neither Perls, Rosenberg
nor Foy could convey
good title to the Painting. Therefore, the Museum never acquired good title to the Painting, and it
remains the property of
the
Leffmann
estate.
56. The
Museum, given its resources, relationships, expertise, and status as a museum that holds its collection in the public trust, should have discovered, through due diligence,
Leffmann’s ownership up and until 1938, and the circumstances under which he was compelled
to dispose
of the Painting because of Nazi and Fascist persecution.
57. Nonetheless, the Museum’s published provenance for the Painting was manifestly
erroneous when it first appeared in the Museum’s
catalogue of French Paintings in 1967. Instead
of saying
that Leffmann owned the Painting from 1912 until 1938, it read as follows: “P. Leffmann, Cologne (in 1912); a German private collection (until 1938) . . .”, thus indicating
that Leffmann no longer owned
the Painting in the years leading up
to its sale in 1938.
58. This
remained the official Museum provenance for the Painting
for the next 45 years, including when it was included on the Museum’s website as part of the “Provenance Research Project,”
which is a section of the website that includes all artworks in the
Museum’s collection that have an incomplete Nazi-era provenance.
59. From 1967 to 2010, the provenance listing was changed numerous times. It continued to state, however, that
the Painting was part of a German private collection, and not that it was
owned by Leffmann continuously from 1912
until 1938.
60. In connection with a major exhibition of
the Museum’s Picasso holdings in 2010 entitled, “Picasso in the Metropolitan Museum of Art”, the provenance was changed yet again.
The forward to the exhibition catalogue by the Museum’s director, Thomas P. Campbell, states
that “[m]ore than a dozen members of our curatorial and conservation staff devoted the last year to an intensive study of
the
Museum’s works by Picasso. . . Thanks to these extensive
studies, for example, we have been able to confirm the authorship of one painting and to better establish the
early ownership
and exhibition history of many other works.” Picasso in the Metropolitan
Museum of Art, The Metropolitan Museum of Art, New
York,
2010, p. vii.
61. Despite purportedly careful examination, as of 2010, the provenance of the Painting
continued to erroneously list
the
“private collection” subsequent to
the Leffmann listing.
62. All of
these versions of the
Painting’s provenance
were
incorrect. Paul owned the Painting
from 1912 until its “sale” under duress to Perls in June 1938.
The Museum’s asserted
explanation for the forty-five years of erroneous provenance only underscores
its improper
conduct when
it first acquired the Painting.
The Museum asserts that the genesis of the
original provenance entry in 1967 was
that,
some
fifteen years after acquiring the Painting, the Museum’s curators finally asked Perls where he had obtained the Painting and that his answer was that he
had
bought it in 1938 from a
“German professor”
in Solothurn, Switzerland who had been
“thrown out by Nazis.” (Perls allegedly
could not remember the name of the German collector when asked in the 1960’s.) Therefore, at least at the time of the cataloguing, red flags should have been raised for the Museum. It should
have tried to correct its error by then investigating
the acquisition of the Painting, especially
because Perls already
said that he could not remember the name of the German collector and, more pointedly, that the seller had been “thrown out” of Germany by
the Nazis. But obviously no investigation was conducted in 1967, and the provenance published in
1967, and for many
years thereafter,
was
erroneous.
63. In October 2011, only after extensive correspondence with Plaintiff, the Museum
revised its provenance yet again. The
revised provenance omitted the reference
to the mysterious
private German collector who had purportedly owned The Actor from 1913-1938 and finally
acknowledged Leffmann’s ownership through 1938 and
his transfer of it during
the Nazi era.
64. The Museum’s
conduct ignored directives and
warnings issued by the U.S. Government. The Museum had specifically
been warned about accepting or buying art
misappropriated during the Nazi era. As early as 1945,
the American Commission for the
Protection and Salvage of Artistic and Historic Monuments in War Areas (also known as the
“Roberts Commission”) issued a
circular, addressed “to museums, art and antique
dealers and
auction houses,” which emphasized the importance of bringing “specific examples of looting of works of art or cultural material []
to light as soon as possible,” and which encouraged museums and others to inform the Roberts Commission of
objects of “special artistic importance” that had “obscure or suspicious”
provenances.
The Commission also issued the following statement:
“[i]t is, of course, obvious that no clear title can be passed on objects that have been looted from public
or private collections abroad.”
In or
about 1947, the Department of
State sent American
museums, as well as
universities, libraries, art dealers and book sellers, another bulletin, in which it highlighted the responsibility of museums and other American institutions to exercise
“continued vigilance” in identifying cultural objects with provenances tainted
by World War
II.
The directive underscored the need for museums to notify the Secretary of State of any objects identified as lacking
a clear title. In 1950, the College Art Association of America
reprinted the directive in College Art Journal,
and
in 1951, the American Federation of Arts
reprinted
the directive again in Magazine of Art.
65. The Museum’s conduct was also inconsistent with the principles espoused by the
American Alliance of Museums (“AAM”), by
which the Museum is accredited, and the
Association of Art Museum Directors (“AAMD”), to which the
Museum is a member
— principles closely correlated to the landmark Washington Conference Principles on Nazi- Appropriated Art. For example, recognizing that a museum’s mission
is to serve the public and that
its responsibility to practice ethical stewardship is paramount, AAM’s “Standards Regarding
Unlawful Appropriation of Objects During the Nazi Era” dictates that museums: (i) identify all
objects in their collections
that were created before 1946 and
acquired by the museum after 1932,
that underwent a change of ownership between
1932
and 1946, and
that
were
or might reasonably be thought to have been in continental Europe during those dates; (ii) make currently
available object and provenance (history of ownership) information on those objects accessible; and
(iii) give priority to
continuing research as resources allow.
Plaintiff Demands
the Return of the Painting and the Museum Refuses
66. On September
8, 2010, Plaintiff’s attorneys, Herrick, Feinstein LLP, wrote
to the General Counsel of the Museum, demanding the return of the Painting, but the Museum
failed and refused to deliver the Painting
to Plaintiff.
The Painting remains in the possession of the
Defendant
through
the filing of this Complaint.
67. On February
7, 2011, the parties entered into a standstill agreement tolling any statute
of limitations as of February
7, 2011. Such agreement was thereafter amended several times to terminate
on September 30, 2016.
The final amendment
of the standstill agreement terminated on September
30, 2016. The action is therefore timely.
FIRST CLAIM
(For Replevin)
68. Plaintiff repeats and realleges each of the allegations contained in the preceding
paragraphs of this Complaint as if fully set
forth herein.
69. The Leffmann estate is the rightful owner of the Painting, and Plaintiff, as Ancillary
Administratrix of the Leffmann
estate, is thus entitled to recover sole
possession of the Painting.
70. The
Painting is a unique and irreplaceable work of
art.
71. Plaintiff demanded the return of the Painting. Defendant failed and refused to deliver
the Painting to Plaintiff.
72. Plaintiff is
entitled to the immediate return of
the Painting.
SECOND CLAIM
(For Conversion)
73. Plaintiff repeats and realleges each of the allegations contained in
the preceding paragraphs
of this Complaint as
if fully set
forth herein.
74. The Leffmann estate is the rightful owner of the Painting, and Plaintiff, as Ancillary
Administratrix of the Leffmann
estate, is thus entitled
to recover sole possession of the Painting.
75.
Plaintiff demanded the return of the Painting.
Defendant failed and refused to deliver
the Painting to Plaintiff.
76. In
refusing to return
the Painting
when demanded, Defendant converted and
appropriated the
Painting for
its
own use in complete disregard and derogation of
the Leffmann estate’s rights,
title
and interest to the Painting.
77. As
a result
of
Defendant’s
wrongful conduct,
the
Leffmann
estate has
suffered damages, and Plaintiff is entitled to an award, in an amount to be determined at trial, but estimated
to be in excess of $100 million.
THIRD CLAIM
(For Declaratory Judgment)
78. Plaintiff repeats and realleges each of the allegations contained in
the preceding paragraphs
of this Complaint as
if fully set
forth herein.
79. The Leffmann estate is the rightful owner of
the Painting, and Plaintiff, as Ancillary
Administratrix of the Leffmann
estate,
is
thus
entitled
to the immediate possession of the Painting.
80. Defendant does not have good title to
the
Painting.
81. Plaintiff demanded the return of the Painting. Defendant failed and refused to deliver
the Painting to Plaintiff.
82. Plaintiff is entitled to a judgment declaring that the Leffmann estate is the sole owner
of the Painting.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment against
Defendant as follows:
a) On the
First Claim, directing that Defendant immediately deliver the
Painting to
Plaintiff;
b) On the
Second Claim, in the alternative, awarding
Plaintiff damages
in an amount to be proven at
trial, but estimated to be in excess of $100 million;
c) On the
Third Claim, declaring that the Leffmann estate
is the rightful owner of the Painting and
that Plaintiff, as Ancillary Administratrix of the Leffmann
estate, is entitled
to immediate possession of
the Painting;
d) Awarding Plaintiff fees and
costs pursuant to Fed. R. Civ.
P. 54(d); and e)
Awarding any such other
and further relief as the Court
deems just and
proper.
Dated:
New
York, New York
November 2, 2016 Respectfully submitted,
HERRICK, FEINSTEIN LLP
By: /s/
Lawrence M.
Kaye Lawrence M.
Kaye Howard
N. Spiegler Ross L. Hirsch
Yael
M. Weitz
2 Park Avenue
New
York, New
York
10016
Tel: (212) 592-1410
Fax:
(212) 592-1500
Attorneys for Plaintiff
Laurel Zuckerman, Ancillary Administratrix
of the estate of Alice Leffmann
No comments:
Post a Comment