Barzilai v. Museum

• Decision Date: 10 November 2022
• Docket Number: Index No. 153086/2022,Motion Seq. No. 004
• Citation: 2022 NY Slip Op 33814 (U)
• Parties: ELI BARZILAI, DOMINIQUE AVERY, ANDREE FISCHER, LUDWIG MARUM, Plaintiff, v. ISRAEL MUSEUM, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 33814(U)

ELI BARZILAI, DOMINIQUE AVERY, ANDREE FISCHER, LUDWIG MARUM, Plaintiff,
v.
ISRAEL MUSEUM, Defendant.

Index No. 153086/2022, Motion Seq. No. 004

Supreme Court, New York County

November 10, 2022

Unpublished Opinion

MOTION DATE 10/03/2022

DECISION + ORDER ON MOTION

Melissa Crane, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 004) 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72 were read on this motion to/for DISMISS.

This case arises out of a tragic period in Jewish history, but has virtually no connection to New York. None of the parties are in New York, while the events giving rise to at least two out of the three causes of action occurred entirely outside of New York. Accordingly, the court grants the motion of Defendant Israel Museum ("Defendant" or "Israel Museum") to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Plaintiffs Eli Barzilai, Dominique Avery, Andree Fischer, and Ludwig Marum's (collectively, "Plaintiffs") allege causes of action for replevin, conversion, and defamation of title based on the purported theft of a 14th-century Haggadah depicting human figures with animal heads ("Bird's Head Haggadah" or "Haggadah"), that had been in Plaintiffs' family's possession from the early 1900s until the Nazis came to power in Germany. Plaintiffs are the grandchildren of Dr. Ludwig Marum. Dr. Marum was a Jewish lawyer and politician who lived in Karlsruhe, Germany with his wife, Johanna, and children, Elisabeth, Eva Brigitte, and Hans Karl. Plaintiffs allege that Dr. Marum's father-in-law gave him the Bird's Head Haggadah in 1910 as a wedding

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present and Dr. Marum thereafter kept the Haggadah in his law office (NYSCEF Doc. No. 1, ¶ 37). The Nazis arrested Dr. Marum in 1933. After Dr. Marum's arrest, his son fled to France, while his wife and daughters moved into a small apartment in Karlsruhe. Dr. Marum's daughter Elisabeth allegedly retrieved the Haggadah from Dr. Marum's office (NYSCEF Doc. No. 1, ¶¶ 52-54). The Nazis murdered Dr. Marum in 1934. Johanna and Eva Brigitte fled to France, leaving Elisabeth alone in the Karlsruhe apartment (NYSCEF Doc. No. 1, ¶¶ 55-56).

Plaintiffs allege that "[i]t was during the short period when [Elisabeth] was alone . . . that the Haggadah was stolen from the apartment" (NYSCEF Doc. No. 1, ¶ 58). Plaintiffs' counsel stated at oral argument that they do not know who stole the Haggadah (NYSCEF Doc. No. 73, p. 6). However, a neighbor of the Marum family, Hermann Kahn, somehow came into possession of the Haggadah and sold it to the director of the Israel Museum's predecessor in 1946 for S600^[1](NYSCEF Doc. No. 1, ¶¶ 107-112, 183). Plaintiffs suspect that Kahn "had stolen or otherwise illegally obtained the Haggadah" from the apartment (NYSCEF Doc. No. 1, ¶ 138; see also id., ¶ 160 [referencing Elisabeth's letter to the Israel Museum claiming that Kahn must have "received it from someone who stole it from [their] apartment"]). Plaintiffs allege that, after purchasing the Bird's Head Haggadah, the Israel Museum "apparently also destroyed evidence of Marum family ownership" by removing and destroying a flyleaf in the Haggadah identifying Johanna's great-grandfather as the Haggadah's previous owner (NYSCEF Doc. No. 1, ¶¶ 122-123).

Eva Brigitte gave birth to Ernst Peter Marum in 1941, and he was placed in an orphanage. A couple in what was then Palestine, pursuant to the British Mandate, adopted him and renamed him Eli Barzilai. Plaintiff Barzilai currently resides in Israel.

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Hans Karl escaped to Mexico. Later, he moved to East Germany, where he had two children, Plaintiffs Ludwig and Andree, who reside in Germany. Elisabeth escaped to New York where she had a daughter, Dominique. Dominique is also a Plaintiff, and she resides in Connecticut.

In 1950, Sigmund Jeselsohn, Dr. Marum's former associate, told Elisabeth that the Israel Museum had possession of the Bird's Head Haggadah and that Jeselsohn had requested that the Israel Museum name the Haggadah for the Marums (NYSCEF Doc. No. 1, ¶¶ 139-142). The Israel Museum allegedly refused (NYSCEF Doc. No. 1, ¶¶ 142, 149). While Plaintiffs allege that Elisabeth "declined to authorize the transfer of the Haggadah to the Museum" (NYSCEF Doc. No. 1, ¶ 143), the complaint is devoid of allegations of Elisabeth's further action related to the Haggadah until 1984. In 1984, Elisabeth allegedly wrote to the Israel Museum again, acknowledging that the family "thought the Haggada should remain in the Israel Museum for the benefit of the public," and requesting that it be named for her parents (NYSCEF Doc. No. 1, ¶ 160). The curator of the Israel Museum allegedly agreed to add that the Haggadah was "in the possession of Ludwig and Johanna Marum until the Nazi epoch" to the Haggadah's label (NYSCEF Doc. No. 1, ¶ 162). Plaintiffs allege that the Israel Museum failed to display that information. Defendant claims that it did provide this information accompanying the Bird's Head Haggadah, aside from a "temporary period following renovations of the Museum" (NYSCEF Doc. No. 49, p. 5).

After Congress passed the Holocaust Expropriated Art Recovery ("HEAR") Act in 2016, that extended the statute of limitations for claims related to property lost during the Holocaust because of Nazi persecution, Barzilai began pressuring the Israel Museum to acknowledge the Marums' ownership of the Haggadah. Barzilai's attorney wrote a letter in 2017 demanding that

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the Israel Museum remove the Haggadah from display, but the Israel Museum refused (NYSCEF Doc. No. 1, ¶¶ 178, 181-187). According to the complaint, the Israel Museum acknowledged that the Marum family owned the Haggadah prior to 1933 and that the Museum had purchased it from Kahn in 1946, but it requested from Barzilai "documents relating to the ownership of the Haggadah from 1933 until 1946, demonstrating that it was taken from the Marum family against their will in between those two dates" (NYSCEF Doc. No. 1, ¶ 183). Barzilai allegedly provided the Israel Museum with "substantial information" to establish that the Haggadah had been stolen, but the Israel Museum was not satisfied (NYSCEF Doc. No. 1, ¶ 184).

Plaintiffs allege various facts in the complaint to show a connection with New York in an attempt to establish that this court has personal jurisdiction. In particular, Plaintiffs allege that, "[f]rom September 8, 1988, to January 14, 1989, the New York Public Library offered an Art Exhibition titled A Sign & a Witness: 2000 Years of Hebrew Books and Illuminated Manuscripts," that included the Bird's Head Haggadah (NYSCEF Doc. No. 1, ¶¶ 192-193). They also allege that the Israel Museum sells a pop-up version of the Bird's Head Haggadah, that can be purchased everywhere, including New York, through Amazon or from Koren Publishing's ("Koren") website. They assert that Koren operates "under license or agreement with the Museum" (NYSCEF Doc. No. 1, ¶¶ 195-199). Additionally, Plaintiffs allege that the Israel Museum conducts business in New York through a non-profit organization, the American Friends of the Israel Museum ("AFIM"), that has "raised more than $435 million for the Museum" and has its primary place of business in New York (NYSCEF Doc. No. 1, ¶¶ 200-202). Plaintiffs also allege that the director of the Israel Museum has "signing authority on behalf of AFIM" and that, between 1996 and 2016, the Director General of the Israel Museum received salaries both for his work as the

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museum director and for his fundraising work on behalf of AFIM (NYSCEF Doc. No. 1, ¶¶ 205-206).

Defendant has moved to dismiss on multiple bases, including lack of personal jurisdiction, forum non conveniens, expiration of statute of limitations, laches, and failure to state a cause of action.

DISCUSSION

On a motion to dismiss for lack of personal jurisdiction pursuant to CPLR 3211(a)(8), "the party asserting jurisdiction has the burden of demonstrating satisfaction of statutory and due process prerequisites (James v iFinex Inc., 185 A.D.3d 22, 28-29 [1st Dept 2020] [citation and internal quotation marks omitted]). The court may exercise personal jurisdiction over a non-domiciliary where the action is permissible under the long-arm statute (CPLR 302) and where the exercise of jurisdiction "comports with due process" (Williams v Beemiller, Inc., 33 N.Y.3d 523, 528 [2019]). While a plaintiff opposing dismissal under CPLR 3211(a)(8) need not establish personal jurisdiction definitively, it must make a "sufficient start" towards "demonstrating a basis for asserting personal jurisdiction" (see Robins v Procure Treatment Centers, Inc., 179 A.D.3d 412, 414 [1st Dept 2020]; Edelman v Taittinger, SA, 298 A.D.2d 301, 302 [1st Dept 2002]). However, the court may still dismiss a case pursuant to the doctrine of forum non conveniens, codified at CPLR 327, where it is "determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 N.Y.2d 474, 478-479 [1984]).

1. Personal Jurisdiction

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Plaintiffs assert that the court may exercise personal jurisdiction over the Israel Museum under CPLR 302(a)(1), 302(a)(2), and 302(a)(3). For the following reasons, the court does not have personal jurisdiction over the Israel Museum, at least as to the first two causes of action.

a. CPLR 302(a)(1)

Under CPLR 302(a)(1), the court can exercise personal jurisdiction over a non-domiciliary that "transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a][1]). However, jurisdiction under this subsection of the long-arm statute requires a "substantial relationship between the transaction and the claim asserted" (Coast to Coast Energy, Inc. v Gasarch, 149 A.D.3d 485, 486 [1st Dept 2017]; CDR Creances S.A.S. v First...