In 1933, Paul Westheim fled Germany to escape the persecution of Jewish citizens. Paul Westheim went to France, Spain and Portugal, and eventually to Mexico. When leaving Germany, Paul Westheim left the art collection he possessed in the custody of Charlotte Weidler, an art dealer in the German capital city of Berlin. In Mexico, Paul Westheim married Marianna Westheim-Frenk. When Paul Westheim tried to recover his art collection after the Second World War, he did not succeed in doing so, because the collection was supposed to have been destroyed as the result of hostilities during war, in particular Allied bombing. Paul Westheim died in 1963, Charlotte Weidler died in 1983, and Marianna Westheim-Frenk died in 2004.
In 1973, Marianna Westheim-Frenk, on the basis of the argument that the art collection had not been destroyed at all and that Charlotte Weidler had begun selling items from the collection after Paul Westheim died, brought an action against Charlotte Weidler. Marianna Westheim-Frenk asked the court inter alia to order Charlotte Weidler to give an account of her actions in respect to the art collection, and to reinstate Marianna Westheim-Frenk’s ownership of the art collection. This action ended in 1974 with an agreement (‘release’) between Marianna Westheim-Frenk and Charlotte Weidler. This release was agreed in connection with the sale of the painting Portrait of Dr. Robert Freund by Charlotte Weidler to an art gallery in New York City. Under the release, Marianna Westheim-Frenk received $7,500 and discharged (note the elaborate and intricate formulation) Charlotte Weidler as well as her ‘heirs, executors, administrators, successors and assigns’,
‘of and from all manner of actions, causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in admiralty, or in equity’,
that Marianna Westheim-Frenk as well as her ‘heirs, executors, or administrators’,
‘shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents.’
Notwithstanding this release, in 2013, Margit Frenk (daughter of Marianna Westheim-Frenk) brought an action against both the executors of Charlotte Weidler’s will (Ms. Yris Rabenou Solomon and Mr. David Y. Solomon) and Charlotte Weidler’s heirs (Darius Solomon and Teimour Solomon). Margit Frenk inter alia sought either ownership of, or damages for, the sale of five art works from the collection of Paul Westheim, on the argument that these five art works had been in the possession of the defendants. In this law suit, deciding (and dismissing) the case, the Supreme Court of New York County had to address a number of issues.
First, the Supreme Court had to decide on a motion for summary judgment advanced by the defendants. Such a motion argues that a case before the court can be decided without further discovery and trial. The Supreme Court considered that ‘all parties ask this court to consider documents dating back to the 1930s; for example, to establish that the Five Works belonged to Mr. Westheim’. The Supreme Court, citing earlier case law, granted the motion on the basis of the ‘ancient document’ rule:
‘Under the “ancient document” rule, a record or document which is found to be more than 30 years of age and which is proven to have come from proper custody and is itself free from any indication of fraud or invalidity “proves itself”.’
Second, the Supreme Court had to decide on the defendants’ reliance on the ‘doctrine of entrustment’, as defined in the Uniform Commercial Code. In the opinion of the defendants, ‘because Mr. Westheim entrusted his art collection to Ms. Weidler, a merchant of art’, Charlotte Weidler had been entitled to transfer ownership of the five art works to the defendants ‘acting in the ordinary course of business’. The Supreme Court rejected this argument as follows:
‘Mr. Westheim left the collection with Ms. Weidler when he fled persecution in Nazi Germany […]; that does not constitute the ordinary, measured entrustment contemplated in the UCC[.] Any conveyances by gift, sale, or otherwise […] under those circumstances are suspect.’
This argument would support the case of the plaintiff, but was defeated by the third issue that the Supreme Court had to decide. This issue dealt with the extent of the release that had been agreed between Marianna Westheim-Frenk and Charlotte Weidler in 1974, following the 1973 litigation: ‘According to defendants, nothing was uncovered […] to establish that the broad Release was intended to be narrowly applied to only one painting, rather than to the entire collection.’ In this connection, the Supreme Court considered that, ‘As the Release here is clearly a standardized form, the court must be flexible in its application of the […] evidence rule.’ However, the Supreme Court noted:
‘plaintiff’s argument that the Release pertains only to the Kokoschka painting, Portrait of Dr. Robert Freund, is not supported by sufficient admissible evidence. Plaintiff’s reliance on the settlement amount of $7,500 as evidence that the Release could have applied to only Portrait of Dr. Robert Freund is without any support or context inasmuch as there is no evidence submitted in connection […] from which to conclude anything about the value of that painting or the settlement figure itself. For instance, there is no expert report examining the 1974 economy, comparing the settlement value to similar transactions, or examining the effect of inflation.’
Thus, the Supreme Court granted the motion for summary judgment and dismissed the case.
The decision of the Supreme Court of New York County (Andrea Masley, Judge) of 7 September 2018 can be found at: law.justia.com; US State Law; New York Law; New York Case Law; New York Other Courts Decisions; 2018; Frenk v Solomon, Date: September 7 2018, Citation: 2018 NY Slip Op 32208 (U).