Background ^[FN1]

This action was commenced by Julius H. Scheops, who claims to be an heir of Paul von [*2]Mendelssohn-Barthody ("Mendelssohn-Barthody"), for the restitution of Pablo Picasso's painting The Absinthe Drinker (Angel de Soto), oil on canvas, 69.5 x 55 cms., signed and dated 1903, and now valued at approximately 60 million dollars. The painting is currently owned by the Andrew Lloyd Webber Foundation. According to plaintiff, Mendelssohn-Barthody was a wealthy Berlin banker of Jewish decent who sold the painting to Justin K. Thannhouser, a Berlin art dealer, in Nazi Germany in a duress sale as a proximate and intended consequence of Nazi persecution.

Mendelssohn-Barthody died in Nazi Germany in May 1935. He was married to Elsa von Mendelssohn-Barthody, his second wife, at the time of his death, and was also survived by four sisters, Kathe Wach, Enole von Schwerin, Charlottte Hallin, and Marie Busch (plaintiff's grandmother). Mendelssohn-Barthody, had no children from either of his marriages. He named Elsa as his "first successor and his four sisters as successor heirs in his last will." Provenance Report, Exhibit A - 4, Plaintiff's Affirmation in Support of Motion to File Third Amended Complaint. The Provenance Report also states that:

The last will of February 1935 has been described as a typical "Verfolgten-Testament" [i.e. a last will set up in order to protect property from the Nazis, in the hope that it would pass on to successor heirs if and when the regime would have come to an end]. According to Julius H. Schoeps, P vM-B's great-nephew, Elsa vM-B did not adhere to the terms of the will and "was unscrupulous in selling off real estate and the paintings. She started selling immediately after her husband's death."

The author of a recent Mendelssohn family biography describes a meeting between Elsa vM-B, her four sisters-in-law and a priest that took place shortly after P vM-B's funeral [i.e. after mid-May 1935]. The meeting had been called to discuss the estate and according to the protocol, it was agreed the (sic) give the art collection to Elsa [cf Lackman 2005, p. 543, the location and exact contents of this protocol are not known at this point and the author does not give a source a reference].

Since Mendelssohn-Barthody sold the painting to Thannhouser in Germany, the painting has been resold in New York City various times. Thannhouser sold the painting to M. Knoedler & Co. in September 1936. The following month, Knoedler sold the painting to William H. Taylor. Ten years later, in 1946, the painting was sold to Donald & Jean Stralem. In 1995, the painting was auctioned at Sotheby's New York to defendant, The Andrew Lloyd Webber Foundation. Defendant returned the painting to New York for auction sale at Christie's New York that was scheduled for November 8, 2006.

Plaintiff, a German resident, alleges that he represents 100% of Paul von Medelssohn-Barthody's heirs, and as Mendelssohn-Barthody's great nephew, is heir to 12.5% of [*3]Mendelssohn-Barthody's estate. Although he has not been appointed personal representative of the estate by a New York State Court, he claims to have permission from all the heirs to pursue this claim. Five days before the auction was to take place at Christie's, plaintiff commenced an action in the Southern District of New York. On November 7, 2006, that action was dismissed for lack of federal jurisdiction.

One day later, on November 8, 2006, plaintiff filed the complaint in this action, but did not serve it on defendant. The next day, he filed the First Amended Complaint, but as the Original Complaint, this one was also not served on defendant, although he sent a courtesy copy to defendant's counsel the following day. On March 5, 2007, plaintiff filed a Second Amended Complaint to add allegations relating to the issue of laches. Since neither the Original Complaint or the First Amended Complaint were served on defendant, plaintiff served the Second Amended Complaint without leave of Court. On March 6, the Second Amended Complaint was served on defendant in London. Defendant's counsel returned to Second Amended Complaint to plaintiff for failing to seek leave of Court.

Plaintiff now moves for leave to file a Third Amended Complaint, which names the trustees of the foundation, Andrew Lloyd Webber, Madeliene Astrid Lloyd Webber, and David John Marcus Ward. By his Third Amended Complaint, plaintiff seeks to assert six causes of action: 1. restitution under the laws and public policies of both New York State and the U.S. Government to return to rightful owners artwork lost as a proximate consequence of Nazi persecution; 2. constructive trust; 3. declaratory relief; 4. replevin based on his November 7, 2006 demand that the foundation return the painting; 5. conversion; and, 6. unclean hands.

Defendant, on the other hand, moves to dismiss the First Amended Complaint [as well as the Second Amended Complaint "if it were properly before this Court"]^[FN2] for several reasons, namely, that plaintiff lacks standing to bring this action since he was not appointed the personal representative of Paul von Mendelssohn-Barthody's estate, that this Court lacks personal jurisdiction over defendant pursuant to CPLR §§ 301 or 302, and on forum non conveniens grounds.

Notwithstanding the very significant issues raised by this litigation, this Court is constrained to dismiss it because plaintiff does not have standing to bring this action without being appointed a personal representative of the estate. See EPTL §§ 11-3.2(b), 13-3.5.

Analysis

It is well established in New York that a person who has not obtained letters as personal representative lacks standing or the legal capacity to commence an action on behalf of an estate. See EPTL § 11-3.2; Matter of Peters v. Sotheyby's Inc., 34 AD3d 29, 34 (1st Dept. 2006)(to [*4]recover a painting on behalf of an estate, the petitioner is required to establish, among other things, "that she is the duly appointed representative of decedent's estate"). In addition, EPTL § 13-3.5 states that in order to have standing and legal capacity to bring a claim on behalf of an estate in New York, a plaintiff must have been appointed as a personal representative in the United States, as opposed to a non-U.S. jurisdiction. Tajan v. Pavia & Harcourt, 257 AD2d 299, 302 (1st Dept. 1999)(where decedent died in Italy and heirs subsequently sought turnover of a stolen painting seized at a New York auction, an ancillary administrator was appointed to administer the owner's United States estate, consisting only of the painting).

Here, although Mendelssohn-Barthody apparently left a will, he was intestate as to the painting at issue. Thus, the only way that plaintiff and the other heirs have any ownership rights to the painting is if Paul von Mendelssohn-Barthody's estate was the rightful owner of the painting and these alleged heirs [presumably the distributees of Elsa and Mendelssohn-Barthody's sisters] inherited rights to the painting. To complicate matters, there is some indication in the record that the painting would have been Elsa's property given the alleged protocol giving her rights to the art collection. Thus, to pursue this matter, plaintiff will have to convince the Surrogate's Court that he qualifies to be appointed the personal representative of Paul von Mendelssohn-Barthody's United States estate consisting of the painting.

Plaintiff argues that EPTL § 11-3.2,^[FN3] which provides for the appointment of a personal representative for a decedent's estate, only applies when a decedent had an existing "cause of action" to protect from abatement at the time of death. Since Paul von Mendelssohn-Barthody did not have a "cause of action" under Nazi Germany in 1935, plaintiff posits that

EPTL § 11-3.2 does not apply. Plaintiff notes that U.S. Military Government Law ("MGL") No. 59, 12 Fed. Reg. 7982 (Nov. 29, 1947), which made recoverable property lost by Jews in "duress sales," was not enacted until 1947, twelve years after Paul von Mendelssohn-Barthody's death. He also asserts that West Germany passed restitution laws patterned after MGL No. 59 in or around 1959, and when Germany was reunited in 1990, the newly united Germany passed a restitution law that same year, The Property Settlement Act of 1990. England and France had passed similar laws in the late 1940's.

Plaintiff cites Elghanayan v. Elgahanayan, 190 AD2d 449 (1st Dept. 1993), as support for this position. In Elghanavan, decedent partner's heirs commenced an accounting claim for financial misconduct that occurred after decedent's death. In holding that EPTL 11-3.2 was not applicable and that the heirs could bring the claim in their own names, the Court reasoned that "the causes of action asserted by the intervening plaintiffs are not alleged to have arisen before decedent's death and, therefore, could not have abated on his death." Id. at 455. Here, however, the underlying act giving rise to the claim of sale under economic duress occurred prior to Mendelssohn-Barthody's death. And, although plaintiff is correct in asserting that any cause of action asserted by Paul Mendelssohn-Barthody would have been fruitless and probably [*5]nonexistent during his lifetime given the Nazi regime, the wrong nonetheless occurred during his lifetime and thus any rights to the painting necessarily belonged to his estate at the time of his death.

Indeed, plaintiff's position is not supported by Matter of Peters v. Sotheyby's Inc., where in facts similar to these here [painting allegedly sold under duress in Nazi Germany], the Court noted that "[t]o sustain a cause of action for wrongful detention, petitioner is required to establish that her decedent was entitled to immediate possession of the property, that she is the duly appointed representative of the decedent's estate, and that demand for the return of the property has been made and refused by the possessor of the chattel." 34 AD3d at 34.

But even assuming that plaintiff's premise is correct, plaintiff's grandmother (who died in 1986) and his mother (who died in 1996) had causes of action for the restitution of the painting during their lifetime. Indeed, defendant purchased the painting in 1995, and both England and Germany had by then already passed restitution laws. Significantly, plaintiff's mother died in 1996, one year after defendant purchased the painting. This scenario highlights the complexities involved in determining rightful heirs to an estate, which is why the New York Legislature designated the Surrogate's Court as the gatekeeper for actions involving estate-related claims. The appointment of a personal representative protects all the parties from after-the-fact claims from persons who alleged not to have assigned their interest to plaintiff.

Plaintiff also argues that EPTL § 11-3.2 does not apply because Paul von Mendelssohn-Barthody's estate was closed in 1935 and therefore, ownership rights in the painting have vested. Plaintiff's assertion to the contrary, Bodner v. BanqueParibas, 114 F. Supp2d 117 (E.D.NY 2000), does not support his position. In Bodner, descendants of Jewish customers of French financial institutions sued institutions, claiming damages arising from participation in a scheme to expropriate assets of customers during Nazi occupation and failure to disgorge assets to them as rightful owners. In rejecting defendant's claim that the alien plaintiffs who were pursuing their claims under the Alien Tort Claims Act did not have standing to sue because they had not been appointed personal representatives pursuant to EPTL 11-3.2, the court found that

[m]any of the relatives of the named plaintiffs died in concentration camps in Europe during the Holocaust. They had resided in France before their detention in concentration camps and, under French law, title to and right of possession of all assets of the intestate decedent vest immediately in the decedent's legatees. See Roques v. Grosjean, 66 NYS2d 348, 349 (N.Y.Sup.1946); McCallion Decl., Ex. H, The French Civil Code (1995) at 430. Upon death, "the decedent's property passes immediately to those entitled ... without passing through the intermediary of an estate; courts are involved only in the event of adversary litigation...." Id. at 430. Thus, plaintiffs whose parents died in Nazi concentration camps may properly bring this action in their own names.

Here, unlike Bodner, it is not clear to the Court that title to and right of possession of the painting vested immediately to Paul von Mendelssohn-Barthody's distributees or that plaintiff is a rightful heir to the painting. Furthermore, Bodner is inconsistent with New York State law. See Matter of Peters, supra , 34 AD3d at 34 ; Tajan v. Pavia & Harcourt, supra , 257 AD2d at 302; cf. Grosshandles-Und Lagerei-Berufsgenossenschaft v. World Trade Center Pproperties, LLC, 435 F.3d 136, 140 n. 7 (2nd Cir. 2006)(Court distinguished Bodner on the grounds that in Bodner, the intestate legatees asserted a federal cause of action, where in Grosshandles-Und the plaintiffs were asserting state causes of action, and implicitly criticized the Bodner court for failing to undertake a conflict-of-laws analysis, and for "void[ing] by judicial fiat the legislative choices of New York").

Thus, based on all the foregoing reasons, the instant action is dismissed inasmuch as plaintiff does not have standing to pursue this action. CPLR 3211(a)(3). Accordingly, it is

ORDERED that defendant's motion (Seq. No. 1) for an order dismissing the complaint is granted pursuant to CPLR 3211(a)(3); and it is further

ORDERED that plaintiff's motion (Seq. No. 2) for leave to file a Third Amended Complaint is denied as moot.

This constitutes the Decision and Order of the Court.

Dated: November 19, 2007ENTER

___________________________

Rolando T. Acosta, J.S.C.