Bakalar v. Vavra, 05 Civ. 3037(WHP).

Citation819 F.Supp.2d 293
Decision Date17 August 2011
Docket NumberNo. 05 Civ. 3037(WHP).,05 Civ. 3037(WHP).
PartiesDavid BAKALAR, Plaintiff, v. Milos VAVRA and Leon Fischer, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

OPINION TEXT STARTS HERE

William Laurence Charron, James A. Janowitz, Pryor Cashman LLP, New York, NY, for Plaintiff.

Raymond James Dowd, Dunnington, Bartholow & Miller, LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

This labyrinthine proceeding revolves around a relatively minor work by the Austrian artist Egon Schiele (the “Drawing”). In 2005, Plaintiff David Bakalar (Bakalar) filed a declaratory judgment action against Defendants Milos Vavra (Vavra) and Leon Fischer (Fischer), seeking a ruling that he is the lawful owner of the Drawing. Vavra and Fischer counterclaimed for conversion and replevin. Following a bench trial in July 2008, this Court applied Swiss law to the issue of whether Bakalar acquired title to the Drawing and awarded judgment to Plaintiff. In September 2010, the Court of Appeals vacated and remanded for consideration of that issue under New York law. 1

On remand, Bakalar once more moves for declaratory judgment. Defendants also move for reconsideration of this Court's order dated April 18, 2011, denying as futile their request for a pre-motion conference to strike a decision of the Austrian Restitution Committee, attached to Bakalar's moving brief. For the following reasons, this Court again awards judgment to Bakalar. Accordingly, Defendants' counterclaims are denied, and their motion for reconsideration, construed as a motion to strike, is denied as moot.

BACKGROUND

The facts are set forth comprehensively in this Court's prior memoranda and orders. See Bakalar v. Vavra, ––– F.Supp.2d ––––, 05 Civ. 3037(WHP), 2011 WL 165407 (S.D.N.Y. Jan. 14, 2011); Bakalar v. Vavra, 05 Civ. 3037(WHP), 2008 WL 4067335 (S.D.N.Y. Sept. 2, 2008); Bakalar v. Vavra, 550 F.Supp.2d 548 (S.D.N.Y.2008); Bakalar v. Vavra, 05 Civ. 3037(WHP), 2006 WL 2311113 (S.D.N.Y. Aug. 10, 2006); Bakalar v. Vavra, 237 F.R.D. 59 (S.D.N.Y.2006).

I. The Drawing

This dispute centers on a 1917 drawing by Egon Schiele (“Schiele”) in crayon and gouache known as “Seated Woman With Bent Left Leg (Torso).” Although the turmoil of World War II and the loss of evidence in the intervening years have obscured the Drawing's provenance, this Court previously made certain findings of fact. See Bakalar, 2008 WL 4067335, at *1–5. First, this Court found that Fritz Grunbaum (“Grunbaum”)—a prominent Austrian Jewish art collector—possessed the Drawing prior to World War II. Bakalar, 2008 WL 4067335, at *4–5. That determination was based on evidence of his prior ownership of another Schiele work and the testimony of Jane Kallir, director of Galerie Gutekunst in Bern, Switzerland. Bakalar, 2008 WL 4067335, at *4–5. In 1938, Franz Kieslinger, a Nazi art appraiser, inventoried Grunbaum's art collection, including 81 works by Egon Schiele. (JPTO Stip. Fact 12; Ex. 105.) The inventory listed only five Schiele works by name, none of which correspond to the Drawing, and it is impossible to determine whether the Drawing was among the remaining works. (Ex. 105.) However, based on the deposition testimony of Eberhard Kornfeld, a former partner at Gallery Gutekunst, this Court concluded that the Drawing was sold that gallery in 1956 by Mathilde Lukacs (“Lukacs”), Grunbaum's sister-in-law. Bakalar, 2008 WL 4067335, at *2–3. Later that year, Galerie Gutekunst sold the Drawing to Galerie St. Etienne, a New York gallery specializing in Austrian and German art. Bakalar, 2008 WL 4067335, at *1. In 1964, Bakalar purchased the drawing in good faith from Galerie St. Etienne. Bakalar, 2008 WL 4067335, at *1, *9. This Court reaffirms these factual findings.

II. The Grunbaum Heirs and Their Efforts to Recover Grunbaum Property

In 1938, Grunbaum was arrested by the Nazis and sent to the concentration camp at Dachau, where he was compelled to sign a power of attorney in favor of his wife, Elisabeth Grunbaum. (JPTO Stip. Fact 18; Ex. 105 at P815.) He died there in 1941. (JPTO Stip. Fact 9; Ex. 149 at DBM 3975; Ex. 137 at P805.) In 1944, Elisabeth Grunbaum also died in a concentration camp. (JPTO Stip. Fact 32.) Fischer and Vavra first asserted a claim to Grunbaum's estate in 1999, and an Austrian Court issued certificates of inheritance and distribution decrees in their favor in 2002, awarding each an undivided 50% interest in the estate. (Declaration of Raymond J. Dowd dated Apr. 20, 2011 (“Dowd Decl.”) Ex. B: Supplemental Expert Opinion of Dr. Kathrin Höfer (“Höfer Supp. Op.”) 2; Dowd Decl. Exs. F, H: Letters to Vavra and Fischer from Austrian Claims Committee.) There is no evidence aside from those proceedings that Defendants or their ancestors had been recognized as heirs by the Austrian courts.2

A. Milos Vavra

Fritz Grunbaum was survived by his brother, Paul, who died in 1942, and his sister, Elise Zozuli (“Zozuli”), who died in 1977. (JPTO Stip. Fact 30.) Zozuli had one daughter, Marta Bakalova (“Bakalova”). (JPTO Stip. Fact 30.) Vavra is Marta Bakalova's nephew. (Tr. 515.) From childhood, Vavra knew of his relationship to Grunbaum and Grunbaum's art collecting and eventual death in a concentration camp. (Ex. 125, Resps. 5, 6.) On Bakalova's death in 1994, Vavra became an heir to Grunbaum's estate. (Tr. 506.) However, prior to being contacted by an attorney in 1998, he made no effort to locate or lay claim to any Grunbaum property. (Ex. 125, Resp. 14.) Indeed, to the best of his knowledge, no such efforts were made by any member of his family. (Ex. 125, Resp. 15; see also Tr. 509–10). There is no evidence in the record suggesting otherwise.

Zozuli lived in Czechoslovakia after World War II. ( See Ex. 125 Resp. 11.) Both Vavra and his brother, Ivan, stated that “conditions in Communist Czechoslovakia rendered pursuit of any restitution efforts impossible and dangerous.” (Ex. 125, Resp. 11; Tr. 507–08, 515–16.) Despite the purported dangers, however, Zozuli did make certain efforts to recover Grunbaum property. Based on a letter written by Zozuli in 1964, it is apparent that, in or around 1952, Zozuli received word from an Austrian attorney that she may have a claim to Grunbaum's music royalties. (Ex. 21.) As a result, she “sent him all the necessary papers, ran up various expenses,” and visited the Austrian consulate in Prague. (Ex. 21.) Thereafter, the attorney informed her that “the Brussels sisters of Lilli Grunbaum (Fritz's wife) presented themselves as heirs,” and Zozuli considered the matter “settled.” (Ex. 21.) The reference to the “Brussels sisters is almost certainly a reference to Lukacs, who lived in Brussels between 1941 and 1957 and was then the only surviving sibling of Elisabeth Grunbaum. (JPTO Stip. Fact 23; Exs. 26, 146.) Despite knowledge of Grunbaum's art collection (Tr. 506), there is no indication that Zozuli made any efforts to claim it. Given that Zozuli considered the matter of her inheritance to certain Grunbaum property “settled” after learning of Lukacs in 1952, and that her 1964 letter referenced no further recovery efforts, this Court finds that Zozuli considered the entire issue of her Grunbaum inheritance “settled” in 1952. There is no evidence in the record to contradict this finding, nor is there any evidence of any further efforts by Zozuli to recover any Grunbaum property prior to her death in 1977.

B. Leon Fischer

Elisabeth Grunbaum was survived by four siblings, including her brother, Max Herzl (“Herzl”). (JPTO Stip. Fact 33.) Herzl died in 1946, survived by his daughter, Rene Herzl, and a grandson, Leon Fischer. (JPTO Stip. Fact 33.) Fischer only became aware of his relationship to Grunbaum in 1999. (Tr. 630.) However, he had known since his childhood that one of his grandfather's sisters (i.e., Elisabeth Grunbaum) had perished in the Holocaust. (Tr. 634–35, 655.) Fischer's parents were well versed in their family's history. Fischer's minimal knowledge of the history of his family during the Holocaust originated from conversations he overheard among family elders, including his parents. ( See Tr. 634–35, 648.) However, Fischer's parents generally refrained from speaking about the Holocaust with Fischer when he was a child. (Tr. 635, 648.) Although the precise details of his parents' knowledge are now lost, it is clear that they knew far more about these matters than Fischer himself. ( See Tr. 634–35, 655.) The reasonable inference from these facts is that Fischer's parents were aware that Elizabeth Grunbaum had perished in the Holocaust.

Fischer's parents and grandparents remained in “pretty close contact” with Lukacs, and Fischer and his parents even visited her once on a trip to Europe in 1959. (Tr. 633–34.) Yet to Fischer's knowledge, his parents never made any claims for restitution or reparation for Grunbaum property (Tr. 655.) Fischer's grandfather, Max Herzl, was integral to Lukacs's escape from Austria in or about 1938, successfully obtaining emigration visas for her and her husband. (Exs. 158, 159.) Similar efforts by Herzl on behalf of the Grunbaums were unsuccessful. (Ex. 155.) There is no evidence, however, that Herzl made any claim to Grunbaum property.

III. Procedural History

After a bench trial, this Court applied Swiss law to the issue of whether Bakalar acquired good title to the Drawing. Under Swiss law, a person who acquires and takes possession of an object in good faith becomes the owner even if the seller was not entitled or authorized to transfer ownership. Bakalar, 2008 WL 4067335, at *7. Furthermore, a purchaser has no general duty to inquire about a seller's authority to sell the object or about its origins unless suspicious circumstances exist. Bakalar, 2008 WL 4067335, at *7. Finding no suspicious circumstances that would require investigation, this Court held that Galerie Gutekunst purchased the Drawing from Lukacs in good faith and therefore passed title to Galerie St. Etienne, which in...

To continue reading

Request your trial
18 cases
  • Reif v. Nagy
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 2019
    ...owner of the Schiele drawing "Seated Woman With Bent Left Leg" (1917), a piece he had owned for over 40 years (see Bakalar v. Vavra, 819 F. Supp. 2d 293 [S.D. N.Y.2011], affd 500 Fed. Appx. 6 [2d Cir.2012], cert denied 569 U.S. 968, 133 S.Ct. 2038, 185 L.Ed.2d 905 [2013] ).Bakalar testified......
  • Howard Univ. v. Borders
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 1, 2022
    ...have the burden to prove that Howard was "aware of [its] claim" and "inexcusably delayed in taking action." Bakalar v. Vavra , 819 F. Supp. 2d 293, 303 (S.D.N.Y. 2011), on remand from Bakalar , 619 F.3d 136. "The opposing party need not have had actual knowledge of the claim; rather, it is ......
  • Zuckerman v. Metro. Museum of Art, 16 Civ. 7665 (LAP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 7, 2018
    ...the Nazis ever possessed the [Painting], and therefore ... this Court cannot infer duress based on Nazi seizure." Bakalar v. Vavra, 819 F.Supp.2d 293, 300 (S.D.N.Y. 2011), aff'd, 500 Fed.Appx. 6 (2d Cir. 2012), cert. denied sub nom. Vavra v. Bakalar, 569 U.S. 968, 133 S.Ct. 2038, 185 L.Ed.2......
  • Williams v. Nat'l Gallery Art, 16-CV-6978 (VEC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 2017
    ...the property "focuses not only on efforts by the party to the action, but also on efforts by the party's family." Bakalar v. Vavra, 819 F. Supp. 2d 293, 303 (S.D.N.Y. 2011) (quoting Bakalar v. Vavra, No. 05 CIV. 3037 (WHP), 2006 WL 2311113, at *3 (S.D.N.Y. Aug. 10, 2006)), aff'd, 500 F. App......
  • Request a trial to view additional results
1 firm's commentaries
  • When Is It Too Late To Recover Artwork You Own? Laches: The Stealth Defense
    • United States
    • Mondaq United States
    • February 19, 2013
    ...Circuit, had held that Swiss law would govern the case. See Bakalar v. Vavra, 619 F.3d 136, 146 (2d Cir. 2010). 6 Bakalar v. Vavra, 819 F. Supp.2d 293 (S.D.N.Y. 2011). Additional facts are set forth in the earlier district court decisions in this case. See Bakalar, 851 F. Supp.2d 489 (S.D.N......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT