Edward W. Greason, Plaintiff, v. INTERNATIONAL ART CENTER (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 042) 2968, 2969, 2970, 2971, 2972, 2973, 2974, 2975, 2976, 2977, 2978, 2979, 2980, 2981, 2982, 2983, 2984, 2985, 2986, 2987, 2988, 2989, 2990, 2991, 2992, 2993, 2994, 2995, 2996, 2997, 2998, 2999, 3000, 3001, 3002, 3003, 3004, 3005, 3006, 3007, 3008, 3009, 3010, 3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019, 3020, 3021, 3022, 3023, 3024, 3025, 3026, 3027, 3028, 3029, 3030, 3031, 3032, 3033, 3034, 3035, 3036, 3037, 3038, 3039, 3040, 3041, 3042, 3043, 3044, 3045, 3046, 3047, 3048, 3049, 3050, 3051, 3052, 3053, 3054, 3055, 3056, 3057, 3058, 3120, 3121, 3122, 3135, 3136, 3137, 3138, 3139, 3140, 3141, 3142, 3143, 3144, 3145, 3146, 3147, 3148, 3149, 3150, 3151, 3152, 3153, 3154, 3155, 3156, 3157, 3158, 3159, 3160, 3161, 3162, 3163, 3164, 3165, 3166, 3167, 3168, 3169, 3170, 3171, 3172, 3173, 3174, 3175, 3176, 3177, 3178, 3179, 3180, 3181, 3182, 3183, 3184, 3185, 3186, 3187, 3188, 3189, 3190, 3191, 3192, 3193, 3194, 3195, 3196, 3197, 3198, 3199, 3200, 3201, 3202, 3203, 3204, 3205, 3206, 3207, 3208, 3209, 3210, 3211, 3212, 3213, 3214, 3215, 3216, 3217, 3218, 3219, 3220, 3221, 3222, 3223, 3224, 3225, 3226, 3227, 3228, 3229, 3230, 3231, 3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241, 3242, 3243, 3244, 3245, 3246, 3247, 3248, 3249, 3250, 3251, 3252, 3253, 3254, 3255, 3256, 3257, 3258, 3259, 3260, 3261, 3262, 3263, 3264, 3265, 3266, 3267, 3268, 3269, 3270, 3271, 3272, 3273, 3274, 3275, 3276, 3277, 3278, 3279, 3280, 3281, 3282, 3283, 3284, 3285, 3286, 3287, 3288, 3289, 3290, 3291, 3292, 3293, 3294, 3295, 3296, 3297, 3298, 3299, 3300, 3301, 3302, 3303, 3304, 3305, 3306, 3307, 3308, 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317, 3318, 3319, 3320, 3321, 3322, 3323, 3324, 3325, 3326, 3327, 3328, 3329, 3330, 3331, 3332, 3333, 3334, 3335, 3336, 3337, 3338, 3339, 3340, 3341, 3342, 3343, 3356, 3579, 3586 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 043) 3059, 3060, 3061, 3062, 3063, 3064, 3065, 3066, 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074, 3075, 3076, 3077, 3078, 3079, 3080, 3081, 3082, 3083, 3084, 3085, 3086, 3087, 3088, 3089, 3090, 3091, 3092, 3093, 3094, 3095, 3096, 3097, 3098, 3099, 3100, 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3108, 3109, 3110, 3111, 3112, 3113, 3114, 3115, 3116, 3123, 3124, 3125, 3126, 3127, 3128, 3129, 3130, 3131, 3132, 3133, 3134, 3344, 3345, 3346, 3347, 3357, 3358, 3359, 3360, 3361, 3362, 3363, 3364, 3365, 3366, 3367, 3368, 3369, 3370, 3371, 3372, 3373, 3374, 3375, 3376, 3377, 3378, 3379, 3380, 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3389, 3390, 3391, 3392, 3393, 3394, 3395, 3396, 3397, 3398, 3399, 3400, 3401, 3402, 3403, 3404, 3405, 3406, 3407, 3408, 3409, 3410, 3411, 3412, 3413, 3414, 3415, 3416, 3417, 3418, 3419, 3420, 3421, 3422, 3423, 3424, 3425, 3426, 3427, 3428, 3429, 3430, 3431, 3432, 3433, 3434, 3435, 3436, 3437, 3438, 3439, 3440, 3441, 3442, 3443, 3444, 3445, 3446, 3447, 3448, 3449, 3450, 3451, 3452, 3453, 3454, 3455, 3456, 3457, 3458, 3459, 3460, 3461, 3462, 3463, 3464, 3465, 3466, 3467, 3468, 3469, 3470, 3471, 3472, 3473, 3474, 3475, 3476, 3477, 3478, 3479, 3480, 3481, 3482, 3483, 3484, 3485, 3486, 3487, 3488, 3489, 3490, 3491, 3492, 3493, 3494, 3495, 3496, 3497, 3498, 3499, 3500, 3501, 3502, 3503, 3504, 3505, 3506, 3507, 3508, 3509, 3510, 3511, 3512, 3513, 3514, 3515, 3585, 3587 were read on this motion for SUMMARY JUDGMENT.

This is a conversion and replevin action brought by Edward W. Greason, as Ancillary Administrator D.B.N. of the Estate of Oscar Stettiner ("Plaintiff"), seeking return of Amedeo Modigliani's Seated Man With a Cane (the "Painting") from Defendants International Art Center, S.A. and David Nahmad (collectively, "Defendants"), who purchased the Painting at auction in 1996 at Christie's London. Plaintiff contends that the Painting was improperly seized from Mr. Stettiner by the Nazi-controlled French government and auctioned off in 1944, and that Plaintiff therefore is entitled to its return. Both parties now move for summary judgment in their favor.

As discussed below, the Court finds that Plaintiff has established a prima facie case that: (i) Oscar Stettiner owned or at a minimum had a superior right of possession of the Painting prior to its unlawful seizure, and (ii) he never voluntarily relinquished it. Both claims are supported by a post-War French court decision in 1946 that ordered the Painting be returned to Mr. Stettiner by the man whose heirs ultimately sold the Painting to Defendants fifty years later. In response, Defendants failed to raise any material issues of fact, and offer no evidence that identifies anyone other than Mr. Stettiner as the owner of the Painting or that he voluntarily relinquished it. Rather, their defense consists of unsupported speculation of "possibilities" which are insufficient to defeat summary judgment or to warrant summary judgment in Defendants' favor. Nor have Defendants presented evidence sufficient to establish or raise a triable question of fact on their defense of laches based on Plaintiff's purportedly unreasonable delay in asserting a claim to the Painting. The summary judgment record indicates that the Stettiner family had been affirmatively misled for fifty years (not by Defendants, who had no involvement in this matter until 1996) as to the whereabouts of the seized Painting and there is no evidence they had knowledge of the sale of the Painting to Defendants.

Accordingly, Plaintiff's motion for summary judgment is granted, and Defendants' motion is denied.

BACKGROUND

Oscar Stettiner was a Jewish man living in Paris prior to World War II (NYSCEF 3345 [Defendants' Response to Plaintiff's Statement of Facts ("Response to PSOF")] ¶ 1).¹ In the 1930s and 1940s, Mr. Stettiner was a shareholder of Stettiner & Cie, located at 18 Avenue Matignon in Paris, France (NYSCEF 3342 [Plaintiff's Response to Defendant's Statement of Fact ("Response to DSOF")] ¶ 3). Stettiner & Cie mostly sold antiques (Response to DSOF ¶ 5), as well as a few paintings but did not specialize in modern art (NYSCEF 3079 ["De Boer Report"] ¶¶ 44—45).

The evidence that Mr. Stettiner owned (or at a minimum had a superior possessory right to) the Painting, identified variously as "Portrait of a Man," "Portrait of Mr. X" and "Ritratto d'uomo" and, since the end of World War II, known primarily as "Homme assis (appuye sur une canne)" or "Seated Man with a Cane" (see NYSCEF 3062—NYSCEF 3068), is set forth below.

The 1930 Venice Biennale

The Painting was exhibited at the "17 Esposizione Biennale Internazionale d'Arte (1930) Mostra Individuale di Amedeo Modigliani" in Venice (the "1930 Venice Biennale"), which took place from May 1930 until November 1930 (De Boer Report at 15 ¶ 12). This fact is undisputed (Response to DSOF ¶ 20 [undisputed]).

By letter dated March 21, 1930, a C.S.W. Mori advised the President of the 1930 Venice Biennale that Mr. Stettiner, 6 Rue du Cirque 8e, Paris, was the owner of "the portrait of a man" by the artist Amedeo Modigliani and that Mr. Stettiner had agreed to lend it to the 1930 Venice Biennale of Modigliani's works (NYSCEF 3069 ["It is understood that I lend for your exhibition the portrait that I own of Modigliani. I beg you to write soon to my friend Mr. Oscar Stettiner 6 Rue du Cirque 8e Paris owner  ² of the portrait of a man that is the pendant of Mr. Gualino which Mr. L. Venturi much desires to have after all my friend Stettiner promised me to lend it."] [translated]).

On April 12, 1930, in correspondence to Romolo Bazzoni, Director of the International Exhibition of Fine Arts Venice, Italy, the shipping company, De La Rancheraye, & Co., inquired "Do we have to collect painting at Stettiner's Rue du Cirque." (NYSCEF 3071 [translated]). It is undisputed that the 1930 census records lists 6 Rue du Cirque as Mr. Stettiner's private home address (Response to PSOF ¶ 6). On April 24, 1930, Rancheraye confirmed to Bazzoni, that "We have the honor of informing you that today we proceed to the collection of the Modigliani painting belonging to Stettiner" (NYSCEF 3072 [translated]). Two days later, Rancheraye confirmed to Bazzoni that the Painting was collected from Stettiner and sent to the 1930 Biennale (NYSCEF 3073 ["We Send Today Nine Paintings Netter One Painting Stettiner" [translated]).

The 1930 Biennale catalogue lists as No. 35 "Ritratto d'uomo. (Coll. Sig. Stettiner, Parigi)" (NYSCEF 3065; NYSCEF 3591 [translated to "Portrait of a man (Collection of Mr. Stettiner — Paris)"]). A photograph from the Venice Biennale Archives and a photograph of the Exhibition gallery also confirms the Painting was No. 35 in the exhibition (NYSCEF 3074; 3066; Response to PSOF ¶ 10 [undisputed]). It is undisputed that a label from the "XVIIeme EXPOSITION INTERNATIONALE DES BEAUX ARTS VENISE 1930" is glued to the back of the Painting and remains today (NYSCEF 3075 ["Smith Report"], Exhibit 2; Response to PSOF ¶ 11 [undisputed for the proposition stated]).

The label is written in French and has pre-printed rubrics, filled in by hand (Smith Report ¶13). Plaintiff's expert, Marc Smith, reviewed three digital photographs of the label glued to the stretcher of the Painting, taken under daylight, ultraviolet and infrared light (id.). He determined that the label states as follows:

17th International Art Exhibition - Venice 1930 / Type C / "720"

First and last names: "Modigliani"

Title of work: "Portrait of Mrs X"³

Selling price: "25000 francs"

Owner: "Stettiner"

Address: "6 rue du Cirque [ ... ]"

[ . . . ] these labels, one to the stretcher, the other to the back of the frame [ . . . ]

(Smith Report ¶¶ 13—15, Exhibit 2; see also NYSCEF 3064). Defendants contend that "[t]he name and address are unreadable and what is stated there is a matter of conjecture" (Response to PSOF ¶ 11). As discussed infra at section A(3)(c), the Court does not find Defendants' contentions to be persuasive.

The Painting is not listed as sold in the Venice Biennale Archives (see NYSCEF 3076—3077, and translations at NYSCEF 3592 and 3593). Although Mr. Stettiner's name is not listed in the transportation records from the Venice Biennale, the records indicate that "Ritratto del Sig. X" was sent back to Paris on 19 November 1930, as part of transport no. 1304, together with 9 Modigliani paintings of the collection (NYSCEF 3078; De Boer Report at 16—20 ¶¶ 19—26).

The Sale of Mr. Stettiner's Personal Property

According to a French court document submitted on behalf of Mr. Stettiner on April 21, 1945, after the liberation of France, German authorities arrested and interned Stettiner in 1943 and appointed Mr. Stettiner a provisional administrator, Marcel Philippon, who sold Mr. Stettiner's property located at Stettiner & Cie (see NYSCEF 3062, 3063 [apostille]).⁴

In support of that roughly contemporaneous assertion, Plaintiff submits a March 30, 1944 document (NYSCEF 3083), written during the Nazi occupation of France, concerning "[t]he case of SETTINER et Cie, 18, avenue Matignon, Paris" and sent to "the representative of MILITARBEHFEHLSHAUBER IN FRANKREICH for ECONOMIC ARYANIZATION at the General Commissariat for Jewish Affairs." The document includes a handwritten note dated April 4, 1944 stating: "Despite considerable research, Mr. PHILLIPON, provisional administrator, has been unable to find new buyers by reason of the very burdensome expenses sustained by this company (rent of 86,000 Francs + expenses of 21.5%). The merchandise in stock was sold at Hôtel des Ventes on February 5 and 17 and May 4, 1943. To this end, I ask you to let me know whether you have any objection to the liquidation of this company, on which matter the Organization Committee is in agreement" (NYSCEF 3083 [translated]).

While Defendants speculate that the Painting may have belonged to Stettiner & Cie rather than Mr. Stettiner personally, the Painting was not contained in a May 20, 1940 inventory of the Stettiner & Cie's contents purportedly prepared by German authorities (NYSCEF 3081; Response to PSOF ¶17 [admitted, but dispute whether the inventory was prepared by German authorities]).

On July 1, 1944, there was a notice of "public auction" published in the Gazette de L'Hotel Drouot by Maurice Quoniam as an auctioneer for the sale of the "Equipment For Art Gallery" to take place on the premises of Stettiner & Cie on July 3, 1944 (NYSCEF 3080, NYSCEF 3062, 3063 [apostille], 3084, 3085 [apostille]; Response to PSOF ¶ 19 [undisputed]). Though not listed in the notice, the record indicates that the Painting was included in the sale at the July 3, 1944 auction as lot number 6, as were other personal possessions of Mr. Stettiner, including a painting of Mr. Stettiner as a child as lot number 5 and a carpet (NYSCEF 3062, 3084). The announcement of the results of the July 3, 1944 sale published in the Gazette de l'Hotel Drouot on July 8, 1944 stated that "a painting by Modigliani" was sold July 3, 1944 (NYSCEF 3082 [translated]). There is no evidence in the record that Mr. Stettiner owned any Modigliani painting other than the Painting.

French court proceedings commenced by Mr. Stettiner in 1945 seeking restitution of the Painting found that it was purchased at the July 3, 1944 auction for 16,000 francs by John Van der Klip. (NYSCEF 3084, 3085 [apostille]). Plaintiff has submitted evidence of other various proceedings filed against Mr. Van der Klip and/or his heirs for dealing in Nazi-looted art (NYSCEF 3088—3090 [referencing a Mr. and Mrs. Van der Klip]; NYSCEF 3086—3087 [referencing a "mademoiselle Van der Klip"]).

The 1946 Restitution Order

In 1945, after the liberation of France, Mr. Stettiner brought a claim in his name for return of the Painting which he identified as Portrait of a Man signed Modigliani purchased at the July 3, 1944 auction before the Civil Court of the Seine against Mr. Philippon and Mr. Van der Klip (NYSCEF 3062, 3063 [apostille]; Response to DSOF ¶¶ 45—46). The Civil Court of the Seine's Emergency Summons stated:

Given that Mr. Stettiner, English subject of Jewish faith, was arrested and interned by the German Authorities in 1943 and provided with a Provisional Administrator in the person of Mr. Philippon;

Given that on July 3, 1944, Mr. Philippon, acting as Mr. Stettiner's Provisional Administrator, sold at the domicile of the latter located in Paris, 18, Avenue de Matignon, through Mr. Maurice Quonium, Official Auctioneer:

1 - A painting signed Modigliani, representing a portrait of a man and bearing the number 6 in the sale for 16,000 francs,

2 - a painting showing the plaintiff as a child and bearing the number five in the sale for the sum of 400 francs,

3 - a carpet for the sum of 14,000 francs;

Given that these items were purchased by Mr. Van der Klip, residing in Paris, 36 Rue de Courcelles;

Given that with regard to Mr. Stettiner this sale constituted real spoliation . . . .

***

As a result, order the immediate restitution of the abovementioned items [including the painting] to the benefit of Mr. Stettiner.

Order Mr. Van der Klip or any subsequent purchasers, to return the said items to Mr. Stettiner.

(NYSCEF 3062 [translated], 3063[apostille]).

In response to the Emergency Summons, Mr. Van der Klip appeared by counsel on July 29, 1946, and admitted that he purchased "a painting attributed to Modigliani" at the July 3, 1944 sale, but claimed to have sold it to an unspecified "dealer" (NYSCEF 3091 [translated], 3092 [apostille]).

By emergency order dated November 22, 1946, the Civil Court issued an Order stating:

Duly note the nullity of the sale granted by Mr. Philippon acting in the capacity of Mr. Stettiner's Provisional Administrator, to the benefit of Mr. Van der Klip on July 3, 1944 of

1 - a painting signed Modigliani (portrait of a man) number 6 in the sale, 2? - a painting (portrait of a child) number 5 in the sale,

3 - a carpet, as the said items belong to Mr. Stettiner, in compliance with the order of April 21, 1945;

as a result, order the immediate restitution of the above-mentioned items to the benefit of Mr. Stettiner;

Order Mr. Van der Klip or any subsequent purchasers, to return the said items to Mr. Stettiner, subject to a penalty of 300 francs per day of delay as of the notification of the upcoming order, for one month, after which deadline it will be asserted;

Order the provisional enforcement of the upcoming order, notwithstanding opposition or appeal, immediately and even before registration, given the urgency;

Sentence the defendants to pay all the legal costs, from which a deduction will be made to the benefit of Attorney de la Fournière, counsel to whom legal fees should be paid;

Without prejudice, in particular to any other spoliation lawsuits;

And justice may be served;

(see NYSCEF 3084 [translated], 3085 [apostille]; Response to DSOF ¶ 49).

Pursuant to that order, the Bailiff filed a report dated March 22, 1947 (the "Bailiff's Report"), setting forth the court's order and detailing his efforts to obtain the ordered restitution (NYSCEF 3093, 3094 [apostille]; Response to PSOF ¶ 28 [undisputed]; Response to DSOF ¶ 49 [undisputed]). The Report provides that the Bailiff was appointed by the Court and "[h]aving carried out my task, I make my report as follows: Mr. STETTINER demanded the restitution of 1. a painting signed by MODIGLIANI, being a portrait of a man and bearing the number 6 from the sales 2. a painting depicting Mr. STETTINER as a child and bearing no. 5 from the sale 3. a pile carpet[.] The said objects having been acquired by Mr. VAN DER KLIP 1944 by Mâitre QUONIAM, licensed auctioneer" (NYSCEF 3093 [translated]). The Bailiff Report goes on to note that "I visited a shed situated on the ground floor and adjoining a courtyard at 27 rue Richer in Paris . . . As regards the painting depicting the painter MODIGLIANI, painted by the same, Mr. VAN DER KLIP declared to me that he had entrusted it to Mr. MARIAGE EU DE SAINT PIERRE. The latter, who was present, upon being questioned by me replied that he had resold the said painting in October 1944 for a sum of 25,000 Fr. to an American officer whom he had met at the Café de Rohan in Paris, but whose name and address he did not know. Consequently, Mr. VAN DER KLIP declared to me that it was impossible for him to return the said painting" (id.).

Mr. Stettiner died in France in 1948 (Response to DSOF ¶ 8 [undisputed]) without having recovered the Painting.

Christie's 1996 Sale

There is no evidence in the record indicating that the Painting was ever publicly shown, exhibited or offered for public sale between July 3, 1944 and 1996 when it was offered at auction by Christie's London and purchased by Defendants. As described below, the sellers at that auction were descendants of the very same Mr. Van der Klip who had represented (falsely, it seems) to French authorities that he sold the Painting in 1944 to an unnamed "dealer" or to an "American officer."

The Christie's catalogue from the 1996 sale states that the provenance of the Painting was:

Provenance:

Roger Dutilleul, Paris

Anon. sale, Paris. circa 1940-45, to J. Livengood, Paris, and

thence by descent to the present owners

Exhibited:

Venice, XVll Exposizione Biennale Internazionale d'Arte,

Mostra Individuale di Amedeo Modigliani, 1930, No. 16 (titled

'Rittratto del dott. X').

(NYSCEF 3067).

Notably, the consignors of the Painting to Christie's in 1996 were the sole heirs of Mr. Van der Klip, i.e., his daughter Maude Stanley and grandson John Livengood (NYSCEF 3101—3104).

The summary judgment record indicates that the provenance under which the Painting was offered for sale at Christie's (NYSCEF 3067), whether by design or inadvertence, was false and misleading in three critical respects. First, as noted above, it stated that the Painting (then more descriptively called Man with a Cane) was bought at "anon[ymous] sale, Paris, circa 1940-45 by J. Livengood, Paris and thence by descent to the present owners." In fact, John Livengood was the co-consigner to Christie's in 1996, not the purchaser at a so-called anonymous sale circa 1940-45 (Response to PSOF ¶ 50 [undisputed]). Indeed, Livengood was not born until XX XX, 1952 (NYSCEF 3104). Second, the Christie's catalogue stated that the Painting had previously been owned by Roger Dutilleul of Paris (NYSCEF 3067). Defendants' expert admits that Dutilleul was not an owner of the Painting (NYSCEF 3105 ["Berthier Report"] ¶ 9; Response to PSOF ¶ 53 [undisputed]). Third, Christie's provenance states that the Painting was exhibited as Number 16 at the 1930 Biennale. As the 1930 catalogue and photograph of the exhibit show, the Painting was item 35 at the 1930 Biennale (NYSCEF 3065—3066, 3074, 3100; Response to PSOF ¶ 55 [undisputed]). Sotheby's 2008 catalogue in connection with a proposed sale of the Painting by Defendants correctly identifies the Painting as No. 35 at the 1930 Exhibition (NYSCEF 3068; Response to PSOF ¶ 56 [undisputed as to the proposition stated]).

Defendant IAC was the purchaser of the Painting at the 1996 Christie's London auction (NYSCEF 3106 ["David Nahmad Tr."] at 40:5-7; Response to PSOF ¶ 57 [undisputed as to the proposition stated]). Defendants testified that they did not conduct independent research as to the provenance of the Painting prior to its purchase in 1996, relying instead on Christie's provenance (David Nahmad Tr. at 157:12-159:21; 212:3-214:6).

While owned by Defendants, the Painting was exhibited at the Museo d'Arte Moderna in Italy in 1999, at Helly Nahmad Gallery in New York in 2005, at the Royal Academy in London in 2006, and in 2008 by Sotheby's in London (October 3-7), Moscow (October 16-19), and New York (October 29-November 3) (Response to DSOF ¶¶ 85—87).

Sotheby's 2008 Auction

In 2008, IAC entered into an agreement with Sotheby's New York to consign the Painting for sale and authorized Sotheby's to prepare and disseminate marketing material and provenance information for the auction (NYSCEF 3107; Response to PSOF ¶ 59 [undisputed]). Sotheby's stated in its marketing catalogue that the Painting was Number 35 at the 1930 Biennale (not Number 16, as Christie's 1996 provenance had claimed) (NYSCEF 3068). Sotheby's cataloguing, as of September 24, 2008, listed the provenance as "(possibly) Roger Dutilleul, Paris" but also "Stettiner, Paris (by 1930)" (NYSCEF 3110).

The story behind that description is intriguing, albeit not definitive. Elizabeth Gorayeb, a head researcher in the impressionist and modern art department of Sotheby's (see NYSCEF 3108 ["Gorayeb Tr"] at 7-9, 14; see also NYSCEF 3131 ¶ 5), contacted Marie-Christine Decroocq (who, according to Gorayeb, was a researcher for a Modigliani Catalogue Raisonné project) at the Wildenstein Institute in Paris about the Painting because she had a "question about the provenance" particularly that she had "not been able to find the auction during those years when this work was sold." She wrote, "Because there is a gap in our provenance during the war years, I wonder if you might be able to tell me a bit more information that would at least account for the whereabouts of the picture between the 1930s until 1945" (NYSCEF 3099; Gorayeb Tr at 9:8-9). She was informed by Decroocq that the Institute's archive contained a note on the back of a photograph of the Painting indicating that Mr. Stettiner was the lender of the painting at the Biennale (NYSCEF 3099—3100). Decroocq also noted that "[a]t the present state of our knowledge, Stettiner had only one Modigliani painting" (NYSCEF 3099).

The note, which has been the subject of much contention in this case,⁵ is an image of the Painting with the words "vole" [stolen] "Cherche [searching] in Amerique." "Famille Stettiner" [Stettiner Family] and "filed 26 April 1950" hand-written on the back of the image (NYSCEF 3100 [the "Wildenstein Note"]).

Gorayeb testified that this information "raised our suspicions" and that she discussed this information with Sotheby's General Counsel and Lucian Simmons, the head of Sotheby's Restitution Department, and they determined "that the best thing to do would be to put it out there to the public and metaphorically shake the tree to see if anybody would come forward because we had no idea about the veracity of the statements in the file" (Gorayeb Tr at 45:6-46:17).

The provenance in Sotheby's September 24, 2008 draft catalog for the Painting was therefore amended to:

(possibly) Roger Dutilleul. Paris

(possibly) Stettiner. Paris (by 1930)

J. Livengood. Paris (acquired circa 1940-45 from an anonymous Paris sale)

Private Collection (by descent from the above and sold: Christie's. London. June 25. 1996. lot 15)

Acquired at the above sale by the present owner

(NYSCEF 3068; compare with NYSCEF 3110).

Although Simmons acknowledged that he was made aware of Decroocq's disclosure of the "stolen" notation, he claimed to have no recollection of discussions or any action taken in response to that disclosure (NYSCEF 3109 ["Simmons Tr"] at 39:21—43:12).

As to the label on the back of the Painting, Simmons testified that when the Painting came to Sotheby's in 2008, "when [he] looked at the painting at first hand and turned it over, [he] could read the label" (NYSCEF 3369 at 134-135), and while it was "smudgy" he believed he "could read the word 'Stettiner' under the smudge" although he noted that "[h]ad I not known the word 'Stettiner,' I might not have made it out. But having had the word 'Stettiner' put into my mind by the 1930 expedition catalog, I could make it out" (id.).

The Painting did not sell at the auction, and remains in the possession of Defendant IAC (Response to PSOF ¶ 68).

Procedural History

The long and contentious procedural background to this dispute dates back to April 2010, when Mondex Corporation first contacted Sotheby's Restitution Department to ask for the name of the consignor of the Painting and requested that Sotheby's inform the consignor of a claim by Stettiner's heirs (NYSCEF 636). In early 2011, Philippe Maestracci, the grandson and sole heir of Oscar Stettiner, through counsel twice contacted Helly Nahmad Gallery and demanded return of the Painting with no response (NYSCEF 638).

In 2011, Maestracci commenced an action in the United States District Court for the Southern District of New York against Defendant Helly Nahmad Gallery as well as against the Painting in rem (NYSCEF 9). Only after Maestracci brought the Federal action did he learn that IAC was the buyer and owner of the Painting, not Helly Nahmad Gallery (NYSCEF 489 ["Am Compl."] ¶ 76). The action was voluntarily withdrawn (Am Compl. ¶ 78).

The present action was commenced by Maestracci in February 2014 by Summons with Notice against Defendants Helly Nahmad Gallery, Inc., David Nahmad, Individually, Helly Nahmad, Individually, International Art Center, S.A., and several John Does (see NYSCEF 1). ue to several stipulated adjournments, the complaint was not filed and served until February 2015, in the name of both Maestracci and George Gowen, as the Ancillary Administrator for the Estate of Oscar Stettiner. The Complaint asserted three causes of action: (1) declaratory judgment, (2) conversion, and (3) replevin (NYSCEF 239).

Defendants moved to dismiss Plaintiff's complaint, inter alia, on the grounds that Maestracci did not have standing. After the Court (Bransten, J.) granted Defendants' motion to dismiss, it directed Plaintiff to file an amended and supplemental complaint which was filed on June 7, 2016 with only Mr. Gowen as plaintiff (see NYSCEF 465; NYSCEF 489 ["Am. Compl."]). On appeal, the First Department ruled that, among other things, Maestracci had standing to bring the action, and that Gowen was properly added as a co-plaintiff (see Maestracci v Helly Nahmad Gallery, Inc., 155 AD3d 401 [1st Dept 2017]).

In 2016, Justice Bransten appointed a Special Master to oversee discovery (see NYSCEF 901). The parties filed various motions to vacate or review the Special Master's orders, which were denied (see NYSCEF 1811, 1812). A motion to dismiss the Amended Complaint was denied by Justice Bransten in 2018 (NYSCEF 1810) and affirmed by the First Department in February 2019 (see Gowen v Helly Nahmad Gallery, Inc., 169 AD3d 580 [1st Dept 2019]).

In November 2018, Justice Bransten denied Plaintiff's motion to amend seeking to reinstate Maestracci as a plaintiff to this action based on the First Department's decision (Maestracci, 155 AD3d 401). Justice Bransten held that the First Department's decision "was silent as to whether Maestracci was thereafter reinstated as a Plaintiff" (NYSCEF 2010 at 11:2-6) and found that various factors weighed against his reinstatement (id. at 11-12). Justice Bransten also granted in part Defendants' motion to strike portions of Plaintiff's proposed Second Amended Complaint (NYSCEF 2010).

In February 2019, the undersigned (as successor to Justice Bransten) denied Defendants' motion to renew their motion to dismiss (NYSCEF 2072). In January 2020, this Court denied Plaintiff's motion for a preliminary injunction enjoining Defendants from selling or other disposing of the Painting based on the representation by Defendants that they have not engaged in any such conduct and had no intention to do so (NYSCEF 2291).

In 2021, this action was stayed pending the designation of a new representative for Plaintiff (see NYSCEF 2564). In December 2023, this Court granted Plaintiff's motion to vacate the stay and to amend the caption to reflect the plaintiff as: "Edward W. Greason as Limited Ancillary Administrator of the Estate of Oscar Stettiner d.b.n." (NYSCEF 2647). On the same day, the Court granted Defendants' motion for partial summary judgment, dismissing the claims against Defendants Helly Nahmad and the Helly Nahmad Gallery, Inc. with prejudice (NYSCEF 2646).

In June 2024, a dispute arose regarding Plaintiff's request to inspect the Painting, which is currently in Switzerland, because despite extensive effort, Plaintiff was unable to obtain the insurance that the Special Referee ordered was required by the deadline (NYSCEF 2657, 2656). Specifically, Defendants argued that Plaintiff needed to obtain insurance from an American company. At oral argument, the Court questioned Defendants' position as well as the availability of a domestic insurer in these circumstances and directed the parties to work together to work this issue out (June 18, 2024 Tr 21:15-18). Ultimately, the parties were able to resolve the motion (NYSCEF 2722) and the inspection went forward.

In March 2025, the Court allowed Plaintiff to serve Non-Party Wildenstein & Co. Inc. with a subpoena seeking an original copy of the Wildenstein Note (NYSCEF 2903). Subsequently, the Court denied Defendants' motion to preclude various iterations of the Wildenstein Note and any translation thereof, and granted in part Plaintiff's cross-motion regarding Defendants' knowledge of the Wildenstein Note. The Court found that "Defendants were aware of and should have produced the Note and related correspondence during discovery in this action" given that "the record reflects that Defendants were aware of and potentially in possession of the Note by 2011 at the latest" (NYSCEF 3532). The Court directed Defendants to "promptly search for and produce any and all correspondence Defendants and/or their agents had with any auction house, gallery, collector or art dealer concerning the Painting, including communications with Sotheby's, Christies, and the Wildenstein entities, and including their side of the correspondence and attachments recently produced by Wildenstein" (id.).

Both parties filed summary judgment motions seeking summary judgment in their favor, and oral argument on these motions was held on February 10, 2026 (NYSCEF 3601—3602).

DISCUSSION

Under CPLR 3212, summary judgment is appropriate when a party establishes with evidence "that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law" (Brill v City of New York, 2 NY3d 648, 651 [2004]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.).

Relevant Legal Framework

New York courts addressing the unique nature and evidentiary challenges presented in purported Nazi-looted art cases have looked to the various principles, goals, statutes and guidelines that have been promulgated to aid victims seeking restitution (see generally Reif v Nagy, 175 AD3d 107 [1st Dept 2019]; Matter of Art Inst. of Chicago, 85 Misc 3d 1265(A) [Sup Ct, NY County 2025] [setting forth history and framework to evaluate Nazi-looted art]; Avni v Sotheby's, 2024 NY Slip Op 30004[U], 11 [Sup Ct, NY County 2024]).

In particular, to " 'ensure that laws governing claims to Nazi-confiscated art and other property further United States policy,' and that 'claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations,' Congress enacted the Holocaust Expropriated Art Recovery Act of 2016 (HEAR Act)" (Reif, 175 AD3d at 131, citing Pub L No 114-308 § 3 [1], [2] [2016]). "One of the stated purposes of the HEAR Act is to ensure that claims to recover art lost in the Holocaust era are 'resolved in a just and fair manner' " (Zuckerman v Metro. Museum of Art, 928 F3d 186, 195 [2d Cir 2019]).

Indeed, in addressing a statute of limitations argument made in this case, the First Department recognized that:

While this great theft may have taken place more than 70 years ago, a resolution was not possible until a combination of scholarship and technology allowed for the creation of databases compiling lists of missing works, and until nations agreed to international guidelines on art restitution such as those laid out in the 1998 Washington Principles on Nazi-Confiscated Art. Even at the tail end of 2016, the United States Congress felt it necessary to pass additional legislation to aid victims of Holocaust-era persecution and their heirs to recover works of art confiscated or misappropriated by the Nazis, and to ensure that claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations but are resolved in a just and fair manner.

(In re Estate of Stettiner, 148 AD3d 184, 186-87 [1st Dept 2017], citing the HEAR Act).

Subsequently, in Reif v Nagy (175 AD3d 107), the First Department affirmed a grant of summary judgment in favor of plaintiffs in a similar case. In Reif, the heirs of Fritz Grünbaum, a well-known Viennese Jewish art collector murdered by the Nazis, brought claims of replevin and conversion against a dealer for artworks they claimed were looted during the war. The issues raised were whether Grünbaum owned the artworks prior to World War II and whether he voluntarily relinquished them. In finding that plaintiffs had met their burden of proving superior title to the artworks, the Court noted the need to take into account the special circumstances of the relevant time period in evaluating the evidence presented to make that determination:

The tragic consequences of the Nazi occupation of Europe on the lives, liberty and property of the Jews continue to confront us today. We are informed by the intent and provisions of the HEAR Act which highlights the context in which plaintiffs, who lost their rightful property during World War II, bear the burden of proving superior title to specific property in an action under the traditional principles of New York law. We also note that New York has a strong public policy to ensure that the state does not become a haven for trafficking in stolen cultural property, or permitting thieves to obtain and pass along legal title

(Reif, 175 AD3d at 132 [citations omitted]).

In Matter of Art Inst. of Chicago (85 Misc 3d 1265(A)), this Court (Drysdale, J.) recently added another guidepost to the evaluation of the proof presented in Nazi-looted art cases—the use of the guidelines in the 2001 publication of the American Alliance of Museums, The AAM Guide to Provenance Research ("The AAM Guide"). The court noted that in determining whether reasonable inquiries were made by the current possessor (in that case, the Art Institute of Chicago) regarding the provenance of the artworks at issue, it would rely on the AAM Guide "to provide a rubric for the Court's evaluation" (id. *28). In so doing, it pointed to The AAM Guide's instruction that provenance research should be done "by employing the assistance of 'established archives, databases, art dealers, auction houses, donors, scholars, and researchers who may be able to provide Nazi-era provenance information' " (id.). The court concluded that the defendant museum in that case failed to employ such assistance after it had information that the artwork that had a change of ownership during World War II and a possible question was raised regarding its provenance (id. *30-31).

While these principles in mind, the Court turns to the claims in this case.

A. Conversion & Replevin

"A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). "Two key elements of conversion are (1) plaintiff's possessory right or interest in the property[;] and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's rights" (Reif, 175 AD3d at 120 [citation omitted]).

"To prevail on a claim of replevin, a plaintiff must demonstrate that he or she owns specified property, or is lawfully entitled to possess it, and that the defendant has unlawfully withheld the property from the plaintiff" (Stewart Family LLC v Stewart, 184 AD3d 487, 490 [1st Dept 2020]). In short, "a plaintiff must establish a superior possessory right to property in a defendant's possession" (Reif v Nagy, 175 AD3d 107, 120 [1st Dept 2019]).

Where "an issue of fact exists as to whether [the property] was stolen . . . the burden of proof with respect to this issue is on defendant, it being settled that a complaint for wrongful detention contains every statement of fact essential to a recovery where it alleges the plaintiff's ownership of the property and the defendant's possession and refusal on demand to deliver " (Solomon R. Guggenheim Found. v Lubell, 153 AD2d 143, 152 [1st Dept 1990] [noting that "[w]e recognize this burden to be an onerous one, but it well serves to give effect to the principle that " '[p]ersons deal with the property in chattels or exercise acts of ownership over them at their peril' "], affd, 77 NY2d 311 [1991]).

1. Plaintiff Has Established a Prima Facie Case That Mr. Stettiner Owned or Had a Superior Right of Possession to the Painting Prior to World War II.

In support of its prima facie showing of ownership and/or a superior legal right possession, Plaintiff has submitted an unusually strong record for a case of this type. As detailed above, the evidence shows a straightforward and persuasive chain of ownership/right of possession flowing directly from Mr. Stettiner to Nazi seizure to a forced sale to Mr. Van der Klip to a sale from Mr. Van der Klip's heirs 52 years later to the Defendants.

The evidence of Mr. Stettiner's ownership of the Painting (and at the very least his superior possessory interest to Mr. Van der Klip and his assigns), recounted at length supra, is compelling and any disputes raised by Defendants are based on speculation. There is, for example, no dispute that the Painting was No. 35 at the Venice Biennale, that 1930 Biennale catalogue lists No. 35 as from the collection of Stettiner, Paris, that the Painting was picked up at "at Stettiner's Rue du Cirque," and the 1930 census records lists 6 Rue du Cirque as Mr. Stettiner's private home address. Moreover, it is undisputed that a label from the Biennale remains on the back of the Painting, and with technological assistance, Plaintiff's expert has been able to identify that the label lists the owner as "Stettiner." The Court finds that the summary judgment record is sufficient to establish Plaintiff's prima facie case of ownership and/or a superior legal right possession of the Painting prior to its seizure.

2. Plaintiff Has Established a Prima Facie Case that Mr. Stettiner Did not Voluntarily Relinquish the Painting

Plaintiff has also submitted evidence establishing its prima facie case that Mr. Stettiner did not voluntarily relinquish the Painting, including that Stettiner & Cie was seized and that a Modigliani painting was included in the July 3, 1944 auction of Stettiner property at the l'Hotel Drouot as item no. 6 and sold at the auction to John Van der Klip (NYSCEF 3156, 3157, 3158). Moreover, a French Court found in 1946—much closer to the events than is available in many similar cases—that Mr. Stettiner was entitled to restitution for spoliation of a "painting signed by Modigliani representing a portrait of a man and bearing the number 6 in the sale," the Bailiff's Report indicating that Mr. Van der Klip purportedly sold the painting to an American officer, and the 1950 Wildenstein contained in the Wildenstein archive attached to a photograph of the Painting containing the words "stolen" "Stettiner Family" and "searching in America" (NYSCEF 3100). Moreover, when the painting resurfaced in 1996, it was held by Mr. Van der Klip's direct descendants who admit they acquired it "by descent" from the purchaser at an anonymous sale in Nazi-occupied Paris in 1944 (NYSCEF 3067, 3101, 3104).

This contemporaneous evidence is more extensive than what the First Department found sufficient in Reif. In that case, the court found ownership even though there was no contemporaneous documentary evidence specifically attributing the painting in question to Grünbaum, relying mostly on historical circumstances and expert testimony. Specifically, in Reif, the Court found that "[w]hile the specific works in question are not named in the inventories of Grunbaum's property or the prewar catalogs, there is sufficient proof of Grunbaum's ownership of the Artworks before World War II" (Reif, 175 AD3d at 120) including that (i) a 1956 catalog in which the artworks in question were listed without any attribution but another painting in the same collection was attributed to Grünbaum, (ii) a federal court finding that another painting in that catalog had a Grünbaum provenance, (iii) plaintiffs' expert's conclusion based on (a) "relevant evidence" that the artworks in question were part of the Grünbaum collection, (b) his explanation why "gaps in the record" do not support the defendants' experts' theories that the Painting was returned to the victim, but rather "strongly suggests that former Nazis took and sold the Artworks in the thriving black market for stolen art in postwar Europe," (iv) one of the dealers involved with the sale of Grünbaum's collection was known to have trafficked in Nazi-looted art, and (v) a 2004 email from a Gallery confirming that the provenance of the work was Grünbaum, as well as another listing and testimony from the granddaughter of the purchaser of the collection listed in the 1956 catalogue regarding her grandfather's purchase and relationship with Grünbaum (id. at 120—124). The Court then held that the defendants' experts' speculations that the artwork belonged to Grünbaum's wife's sister were unsupported by the evidence in the record and were insufficient to defeat summary judgment (id. at 124—125).

In contrast, as outlined above, the contemporaneous documentary record indicates that Mr. Stettiner was the owner (and at the very least authorized possessor and lender) of the Painting, without the need to rely on any expert testimony, subsequent provenance records, or deposition testimony from tangential family members. Moreover, a French court proceeding immediately after the war concluded that Mr. Stettiner was entitled to possession of the Painting and ordered that Mr. Van der Klip turn it over to him. The evidence indicates that it was only by subterfuge that the Painting remained in the Van der Klip family for five decades before being sold to Defendants (the Court notes there is no evidence that Defendants were aware of the facts surrounding Mr. Van der Klip's actions at the time they acquired the Painting).

Therefore, given Plaintiff's prima facie showing of entitlement to judgment as a matter of law, the burden shifts to Defendants to establish the existence of material issues of fact.

3. Defendants Have Failed to Meet Their Prima Facie Entitlement to Summary Judgment and Have Failed to Raise Any Issues of Fact

In response to Plaintiff's motion and in support of their own summary judgment motion, Defendants' submission consists principally of speculation by their experts that it is possible that someone other than Mr. Stettiner owned the Painting, or that the painting displayed at the 1930 Biennale is not in fact the painting that was sold in the 1944 sale to Mr. Van der Klip. Defendants' evidentiary showing is unavailing to rebut Plaintiffs' prima facie case or to establish that there are legitimately contested issues of fact requiring a trial.

a) The Lack of Proof of Purchase does not Negate Plaintiff's Claim

First, Defendants argue that there are no records, including invoices, bills of sale, checks or receipts, documenting that the Painting was purchased by Mr. Stettiner, thus Plaintiff cannot prevail. While Defendants do not dispute that the Painting was exhibited under Stettiner's name at the 1930 Venice Biennale, they argue that the Painting could have been in Mr. Stettiner's possession because it was on consignment from a client, or that it owned by Stettiner & Cie.

First, Defendants set forth no authority for their claim that a bill of sale or receipt is necessary to prove ownership. In Reif, the Court held that the plaintiff had demonstrated "ownership" without any such documentation (Reif, 175 AD3d at 120 ["While the specific works in question are not named in the inventories of Grunbaum's property or the prewar catalogs, there is sufficient proof of Grunbaum's ownership of the Artworks before World War II"]).

While Defendants argue that there is no evidence that Mr. Stettiner only owned one Modigliani, in researching the provenance of the Painting, Decroocq wrote to Gorayeb that "[a]t the present state of our knowledge, Stettiner had only one Modigliani painting" (NYSCEF 3099). Defendants have not presented any contradictory evidence that would raise an issue of fact.

Defendants further point out that there is no correspondence between Mr. Stettiner and the Biennale organizers in the Biennale Archives or the Lionello Venturi Archives (NYSCEF 3014 ["Report of Noel-Johnson"] ¶ 16), however, Defendants have not identified any correspondence that would contradict the Painting as being lent by Mr. Stettiner as noted in the letter by C. Mori.

Defendants further argue that there is no evidence that the Painting was shipped back to Mr. Stettiner following the Biennale. However, as described by Plaintiff's expert, who studied the two registers of artworks in the Venice Biennale archives, the registers give a complete overview of all artworks sold during the 1930 Biennale, and the Painting is not listed in the registers (De Boer Report at 16 ¶ 18). Moreover, the Venice Biennale archives also contain transportation records related to the 1930 Biennale (NYSCEF 3078). The record indicates that the Painting was sent back to Paris on 19 November 1930, as part of transport no. 1304, together with 9 Modigliani paintings of the collection Netter. While Plaintiff's expert admits that neither the name Stettiner nor the name Netter is mentioned in this transport register, it can be concluded that these are the paintings from Netter and Stettiner by cross-referencing the descriptions of the subject matters in the transport register with those of the paintings at the Modigliani exhibition in the 1930 Biennale catalogue (De Boer Report at 16—20 ¶¶ 19—26). Moreover, as De Boer detailed in his Report, it appears from the transport record that the only time any addresses were included in the return records was where the artwork was returned to a different address from the one it was picked up at (id. at 19—21 ¶¶ 22—28), and that was not indicated with respect to the Stettiner Painting (id. at 15—21 ¶¶ 17—27). The Court is persuaded by this analysis, which has not been adequately rebutted by Defendants' expert (see Schubs Report ¶ 46).

Second, the record does not support the speculative conclusion that Stettiner & Cie may have owned the Painting, rather than Mr. Stettiner himself. As noted, the Painting was picked up at 6 rue du Cirque, Mr. Stettiner's private residence, not 18 Avenue Matignon, which is the address of Stettiner & Cie. Stettiner & Cie mostly sold antiques and offered few paintings for sale, but did not specialize in modern art (De Boer Report ¶ 44). The Modigliani painting does not appear in the inventory list of the stock of Gallery, dated May 20, 1940, and per Plaintiff's expert, there are no modern paintings mentioned on this list (id. ¶45). Moreover, Mr. Stettiner submitted a claim in the Paris court for three objects, including "un tableau signé: Modigliani, représentant un portrait d'homme" [a painting signed: Modigliani, representing a portrait of a man], in his individual capacity, not by Stettiner & Cie. The Paris court ruled in favor of restitution of the Modigliani painting to Mr. Stettiner, not to Stettiner & Cie or a client of Stettiner & Cie, and this decision was made while Mr. Stettiner and the other shareholders of Stettiner & Cie were still alive (id. ¶ 46).

Third, even if Mr. Stettiner had possession of the Painting under consignment rather than full ownership, that would not a viable ground to permit Defendants to retain possession (see Pivar v Graduate School of Figurative Art of the New York Academy of Art, 290 AD2d 212, 213 [1st Dept 2002] ["It is no defense to a replevin action that someone other than the plaintiff is the true owner of the property: 'the plaintiff need only establish a superior possessory right in the chattel to that of the defendant' "] [addressing a bailment situation]; see also 77 C.J.S. Replevin § 24, Right of Particular Persons [A "consignee has sufficient interest in the property to maintain replevin against another person"]).⁶ There is no question that Mr. Stettiner had valid possession of the Painting, and that it was picked up from his residence. As the Court emphasized in Reif, "[i]t is important to note that we are not making a declaration as a matter of law that plaintiffs established the estate's absolute title to the Artworks. Rather, we are adjudicating the parties' respective superior ownership and possessory interests" (Reif, 175 AD3d at 132).

b) The Bailiff's Report Does Not Rebut Stettiner's Claim to the Painting

Next, Defendants imply that the Modigliani painting Mr. Van der Klip bought at the 1944 sale may not be the Painting at issue here. Defendants point to the Bailiff s Report, which described the painting sought by Mr. Stettiner as "the painting depicting the painter Modigliani, painting by the same" (NYSCEF 1513 [translated] ["Peint par lui-meme," i.e. a self-portrait]). Defendants proclaim that "[t]he [Bailiff] heard that description directly from [Oscar Stettiner]'s lips" (NYSCEF 3016 at 15). However, there is no proof that the statement written by the Bailiff was a statement made by Mr. Stettiner. Indeed, the sentence Defendants point to contradicts another sentence written by the Bailiff in the same report which all described the Painting as "a portrait of a man," which is how the Painting has been described.

Indeed, Defendants claim that because this phrase "peint par lui-meme" appears in the Bailiff's report, it is definitive as a matter of law. Thus, they argue that because the Painting is not a self-portrait it cannot have been the painting sold at the 1944 auction. That supposition in undermined by the fact that in the same report the Bailiff also described the painting at issue as "a painting signed by Modigliani being a portrait of a man." Defendants offer no explanation for elevating the "self-portrait" description (the one and only time it appears in the record) over the "portrait of a man" description.

To the contrary, the French court papers, including the Bailiffs report as noted, otherwise described the Painting sought and ordered to be returned to Mr. Stettiner as a painting signed by Modigliani being a "portrait of a man" (NYSCEF 3084, 3062, 3093). There is no evidence that Mr. Stettiner ever owned or claimed to own a self-portrait of the artist, or that any such painting was exhibited at the 1930 Biennale or sold at the 1944 auction. As set forth above, all documentation consistently referred to Mr. Stettiner's painting as a "portrait of a man" or "Portrait of Mr. X" (NYSCEF 3062—3068). In short, Defendants' speculation about an undescribed and never-before-catalogued self-portrait of Modigliani is insufficient to create a triable issue of fact, especially as compared with the substantial evidence in the record demonstrating that the painting awarded to Mr. Stettiner by the French court in 1945 was in fact the same painting (that is, the Painting) that was loaned by Mr. Stettiner to the 1930 Biennale.

Nor have Defendants set forth any evidence as to where else the Van der Klip heirs obtained the Modigliani Painting at issue. While Defendants' experts speculate that the Painting could have been obtained by Edwin Livengood (not John Livengood, as stated in Christie's 1996 provenance) (see Schub Report ¶¶ 51—60), who purportedly was a prominent art dealer, there is no evidence to corroborate this theory. Moreover, Defendants do not cite to any public exhibitions of the Painting between 1930 and the 1996 Christie's auction.

c) Defendants Fail to Raise Any Other Issues of Fact

Defendants make a handful of other arguments in an attempt to raise issues of fact, none of which the Court finds persuasive. The Court will address the main points briefly.

Defendants seek to imply that the painting sold at the 1944 auction was not authentic because only works of questionable authenticity sold for as low as 16,000 francs. Defendants have submitted an expert report stating that during the war years, authentic Modigliani paintings sold for six-figure prices (NYSCEF 2782 ["Berthier Report"] ¶ 11).⁷ However, Plaintiff's expert has provided an in-depth overview of the situation in Paris in the turbulent summer of 1944, including that "[t]he art market in Paris in June-July 1944 was characterized by an observable decrease in expensive transactions, which reflected a more general sense of trepidation. While Paris under German occupation had seen a thriving art market, the situation changed markedly after D-Day" (NYSCEF 3191 ["Petropoulos Rebuttal Report"] ¶ 41 [citation omitted]). Defendants' attempt to discredit the painting sold at the 1944 auction is speculative and unpersuasive.

Defendants also suggest that "[Oscar Stettiner]'s personal property and Paris apartment were not raided by the French government or the Nazis," citing to the report of their expert, Judith Schub (NYSCEF 3016 at 5, citing NYSCEF 2781 ¶ 10). However, the Schub Report only states that "Plaintiff has failed to show that the Nazis, the French Government or any other form of the French Government, such as the French Vichy Government, seized, occupied or entered in any way, shape or form Oscar's Paris residence/private apartment in which he resided with his family, located at 6 rue du Cirque . . ." (NYSCEF 2781 ¶10). Defendants' attempt to contort their own expert's conclusion as to what Plaintiff has "failed to show" into affirmative evidence on summary judgment is unavailing. In any event, the Court of the Seine court papers indicate that Philippon was Mr. Stettiner's personal administrator and there is no reference to Stettiner & Cie (NYSCEF 3062, 3084, 3086). The Paris court ruled in favor of restitution of the Modigliani painting to Mr. Stettiner, not to Stettiner & Cie or a client of Stettiner & Cie (see id.).

Next, Defendants argue that the label on the back of the Painting has no significance or that it is unreadable. However, the ultraviolet photos from the inspection they fought for years to avoid reveal it clearly. At his deposition, Lucian Simmons of Sotheby's testified that when the Painting came to Sotheby's in 2008, "when [he] looked at the painting at first hand and turned it over, [he] could read the label" (NYSCEF 3369 at 134—135), and while it was "smudgy" he believed he "could read the word 'Stettiner' under the smudge" although he noted that "[h]ad I not known the word 'Stettiner,' I might not have made it out. But having had the word 'Stettiner' put into my mind by the 1930 expedition catalog, I could make it out" (id.). Defendants do not dispute this testimony nor have they shown who other than the lender listed in the Venice Biennale catalogue would be on the label.

In sum, Defendants have failed to raise any triable issue of fact to rebut Plaintiff's prima facie case for possession of the Painting.

B. Laches

Finally, there is no triable issue of fact with respect to Defendants' equitable defense of laches.

"[A] laches defense [ ] requires that the party currently in possession of a chattel demonstrate prejudice sustained on account of the delay in the commencement of the action against it" (In re Peters, 34 AD3d 29, 37 [1st Dept 2006]). "The mere lapse of time, without a showing of prejudice, is insufficient to sustain a claim of laches" (Reif v Nagy, 175 AD3d 107, 130 [1st Dept 2019]). Prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" (id.). "[L]aches may be decided 'as a matter of law' when 'the original owner's lack of due diligence and prejudice to the party currently in possession are apparent.' " (Zuckerman v Metro. Museum of Art, 928 F3d 186, 193 [2d Cir 2019]] [applying New York law]; Bennigson v Solomon R. Guggenheim Found., 242 AD3d 567, 568 [1st Dept 2025] ["where the original owner's lack of due diligence and prejudice to the party currently in possession are apparent, the issue may be resolved as a matter of law"]).

At an initial matter, Plaintiff's suggestion that a prior First Department decision in this matter (Maestracci v Helly Nahmad Gallery, Inc., 155 AD3d 401, 404 [1st Dept 2017]) precludes a laches defense is unavailing. That decision only addressed the statute of limitations argument (see id.). While the analysis is somewhat similar, and the decision may be of some relevance, it does not conclusively foreclose an equitable defense of laches.

Regardless, Defendants' laches defense fails. First, there is evidence in the record that the "original owner," Mr. Stettiner, made a 1946 claim in Paris for a "portrait of a man," and received a judgment in his favor the same year (NYSCEF 3084). In 1947, the French Bailiff appointed to enforce the judgment noted that Mr. Van der Klip said that the painting had been sold to an American officer (NYSCEF 3093). Thus, since Mr. Stettiner clearly made an effort to find the painting by filing a claim, going through a court proceeding, and following up with judgment enforcement, "the original owner's lack of due diligence" is not apparent as a matter of law.

While Defendants suggest that Plaintiff and/or his predecessors in interest since Mr. Stettiner's death should have taken additional steps to enforce the 1946 judgment or to investigate, research, or find the Painting by reporting or listing it to authorities or lost art registries, just suggesting that steps could have been taken is not sufficient. As in In re Flamenbaum, Defendants have "provided no proof to support its claim that, had the [plaintiff] taken such [additional] steps, the [plaintiff] would have discovered . . . [who] was in possession of the [Painting]" (22 NY3d 962, 965-66 [2013], comparing Matter of Peters v Sotheby's Inc., 34 AD3d 29, 37-38 [1st Dept 2006], lv denied 8 NY3d 809 [2007] [laches barred claim where owner had actual knowledge of the identity of the party in possession but did not demand return of the property]).

Specifically, there is no evidence that the Painting was publicly shown between the 1944 auction and the 1996 Christie's auction. Moreover, the story that Mr. Van der Klip promulgated to the French Bailiff that the Painting was sold to an American officer appears to have been a feint to throw Mr. Stettiner and the French authorities off the trail, considering that Van der Klip's heirs were the consignors of the Painting at the 1996 Christie's auction. The record also suggests that by 1950, the Stettiner family was searching for the Painting in America, consistent with the Bailiff's report, rather than in Europe. Thus, Mr. Van der Klip's apparent concealment of the Painting successfully thwarted Mr. Stettiner and his family from finding the Painting, and there is no evidence that further research would have been revealing since the Painting was (presumably) concealed.

The cases cited upon which Defendants rely undermine application of laches in this case because they involved circumstances where, unlike here, the artwork was not hidden from the purported owners (see Republic of Turkey v Christie's Inc., 62 F4th 64, 68 [2d Cir 2023] [finding plaintiff had sufficient knowledge to investigate its claim because "[s]ince the 1960s, the [artwork] has not lived in secrecy" and was "displayed publicly in the Met's permanent galleries"]; Bennigson, 242 AD3d at 568 [finding laches barred plaintiff's claim where the painting was not hidden and defendant had specific conversations with the plaintiffs family regarding the provenance of the artwork when it purchased it and the family raised no concern that the sale was tainted by duress at that time]).

Moreover, there is no evidence in the record to suggest that Plaintiff's heirs had notice of the 1996 auction. The auction took place in London, not in France where Maestracci lived, nor in Paris where the consigners of the Painting allegedly lived (NYSCEF 3601 [Feb. 2026 Tr.] at 19:6-12, 20:9-21). And as noted above, the Christie's provenance description incorrectly identified the Painting as No. 16 in the Venice Biennale, rather than No. 35, further confusing its identification. Once the Painting resurfaced in 1996 and was bought by Defendants, the Painting was exhibited occasionally by Defendants between 1999 and 2008. Plaintiff sought information about the Painting by 2010. And while Defendants argue that they have been prejudiced by the delay in bringing this claim because they would not have bought the Painting in 1996 (NYSCEF 3015 ["Nahmad 7/29/25 Affirm"] ¶ 22), Defendants also admit that they relied on the provenance in Christie's 1996 catalogue, and did not do any of their own research, despite Christie's provenance indicating that the Painting was transferred in a sale in Nazi-occupied Paris (NYSCEF 3067), sufficient to raise at least some suspicion.

In sum, the record reflects that Mr. Stettiner took all reasonable steps available to him to recover the Painting, but was thwarted by the false claim the Painting was resold by Mr. Van der Klip after the July 3, 1944 auction. Moreover, there is no evidence to suggest that Mr. Stettiner's heirs had any way of knowing where the Painting was in 1996 (or for 50 years before that) or that it was being auctioned in London. Therefore, Defendants' laches defense fails as a matter of law.

The Court has considered the parties' remaining arguments and finds them unavailing.

* * * *

Accordingly, it is

ORDERED that Plaintiff's motion for Summary Judgment on its claims for conversion, replevin, and declaratory judgment  ⁸ is GRANTED; it is further

ORDERED that Defendants' motion for Summary Judgment (Mot. Seq. 042) is DENIED; it is further

ADJUDGED and DECLARED that Plaintiff Edward W. Greason, as Ancillary Administrator D.B.N. of the Estate of Oscar Stettiner, is entitled to possession of the Painting by Amedeo Modigliani known as Seated Man With a Cane, 1918; it is further

ORDERED that the parties settle a judgment on notice consistent with the foregoing, with taxable costs (not attorney's fees) to Plaintiff.

This constitutes the Decision and Order of the Court.

DATE 4/3/2026

JOEL M. COHEN, J.S.C.

FOOTNOTES

1.   Defendants' attempt to dispute this fact (see Response to PSOF ¶1) is unavailing, as a roughly contemporaneous 1945 French Court Order confirms that "Mr. Stettiner, English subject of Jewish faith, was arrested and interned by the German Authorities in 1943" (NYSCEF 3084).

2.   The parties dispute which French word is used is in the original handwritten letter (written in French) (see Response to PSOF ¶ 3—4). Plaintiff has submitted two translations of this letter, both identifying the word as "possesseur" in French but translating it to "possessor" in English and later, as "owner" (compare NYSCEF 671 with NYSCEF 3069). Defendants have submitted a translation identifying the word as "porteur" in French, translated to "possibly holder" (NYSCEF 3037). Marc Smith, Plaintiff's expert, explains in his Report that "I am positive the word is not 'porteur', which would carry no meaning whatsoever in this context. By comparison with other occurrences on the same page, the word is clearly written with -ss-, not -rt-. The end is less detailed, but similar to the treatment of the end of 'Monsieur' in the same letter: a string of small, increasingly indistinct letters that tends to trail off" (NYSCEF 3144 ["Aug 2024 Smith Report"] ¶¶ 14—17). The Court finds that the word used is "possesseur" rather than "porteur." Defendants also argue that "French, 'possesseur' does not mean 'owner' " (Response to PSOF ¶ 3—4) but provide no explanation for that statement. In any event, for purposes of Plaintiff's conversion and replevin claims, it is immaterial whether the note says owner, possessor, or "holder" for the reasons discussed in Section A(3)(a), infra. In either case, Mr. Stettiner had a superior right of possession in the Painting and is therefore entitled to its return (Reif v Nagy, 175 AD3d 107, 132 [1st Dept 2019]).

3.   According to Plaintiff's expert, this original inscription was subsequently modified by notations changing an abbreviation for the subject of the painting from the French "Mrs." to "Mr." (Smith Report ¶ 16).

4.   Throughout this record, Plaintiff has submitted original documents with an apostille certifying the document as a public record. "An apostille is an authentication of a public document issued pursuant to the 1961 Hague Convention, whose signatory countries have agreed to recognize public documents when the apostille is attached to the document" (H.S. v M.S., 48 Misc 3d 1212(A) [Sup Ct, Westchester County 2015]). In a separate filing, Plaintiff has submitted the translation (and occasionally, the scan) of that original document. For clarity, the Court will note "apostille" in the citation to clarify that this document is same as the translated version.

5.   The Court has already determined that "the Note cannot be offered as evidence that the Painting was stolen (there is no suggestion that the writer would have known that one way or the other), but instead at most that the 'Stettiner family' in or around 1950 was claiming that the Painting was stolen and were looking for it in America. The Note may also be offered for the non-hearsay purpose of responding to Defendants' affirmative defense that they 'did not know, and with the exercise of reasonable care could not have known, of the Plaintiffs' purported claim to the Painting' " (NYSCEF 3523 [Decision + Order on Mot. Seq. 041]).

6.   While Defendants argue that 77 C.J.S. Replevin § 24 also provides that "one who is not the sole owner may not sue in replevin" (77 C.J.S. Replevin § 24), the context of that paragraph indicates that joint owners cannot sue each other in replevin (id. [emphasis added]). However, the treatise goes on to provide that "it has been held that the bare fact that a plaintiff does not alone own the property does not bar replevin against a stranger" (id.).

7.   The Court further notes that of the six examples given by Defendants' expert, only one is of an actual sale. The remaining examples are situations where the Modigliani painting was "bartered" for Picasso paintings "valued" between 200,000 to 300,000 francs. Moreover, all of the examples involve one collector, Dutilleul (Berthier Report ¶ 11).

8.   While not thoroughly addressed by the parties, Defendants concede that Plaintiff's declaratory judgment claim rises and falls with the conversion and replevin claims (see NYSCEF 3016 at 17 [arguing that "Plaintiff's declaratory judgment claim is dependent on the conversion and replevin claims"]). Accordingly, a declaration in Plaintiff's favor on that claim is appropriate.

Joel M. Cohen, J.