| Matter of Flamenbaum |
| 2012 NY Slip Op 04165 [95 AD3d 1318] |
| May 30, 2012 |
| Appellate Division, Second Department |
| In the Matter of Riven Flamenbaum, Deceased. VorderasiatischesMuseum, Appellant-Respondent; Hannah K. Flamenbaum,Respondent-Appellant; Israel Flamenbaum, Objectant-Respondent. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Steven R. Schlesinger and Seth A. Presser ofcounsel), for respondent-appellant. Reilly & Reilly, LLP, Mineola, N.Y. (David T. Reilly of counsel), forobjectant-respondent.
In a probate proceeding in which Hannah K. Flamenbaum, as executor of the estate of RivenFlamenbaum, petitioned to judicially settle her final account of the estate, the VorderasiatischesMuseum appeals from an order of the Surrogate's Court, Nassau County (Riordan, S.), datedMarch 30, 2010, which, after a hearing, denied its claim for the return of certain personalproperty in the possession of the estate of Riven Flamenbaum as barred by the doctrine of laches,and Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, cross-appeals, aslimited by her brief, from so much of the same order as determined that the VorderasiatischesMuseum had met its prima facie burden of proving legal title or a superior right of possession tothe subject property.
Ordered that the cross appeal is dismissed; and it is further,
Ordered that the order is reversed, on the law, with costs, the claim of the VorderasiatischesMuseum for the return of certain personal property in the possession of the estate of RivenFlamenbaum is granted, and the matter is remitted to the Surrogate's Court, Nassau County, forfurther proceedings including the entry of a decree, inter alia, directing Hannah K. Flamenbaum,as executor of the estate of Riven Flamenbaum, to turn over the subject property to theVorderasiatisches Museum.
The Vorderasiatisches Museum (hereinafter the museum) seeks to recover from the estate ofRiven Flamenbaum (hereinafter the estate) a small inscribed gold tablet (hereinafter the tablet)excavated prior to World War I by a German team of archaeologists from the foundation of [*2]the Ishtar Temple, around the city of Ashtur, in what is nownorthern Iraq and was then part of the Ottoman Empire. The tablet, which describes theconstruction of the Ishtar Temple, dates to the reign of King Tukulti-Ninurta I of Assyria(1243-1207 BCE).
After the excavations ended in 1914, the tablet and other artifacts were transported to Basra,Iraq, and loaded on a freighter bound for Germany. With the outbreak of World War I, thefreighter was forced to stop in Lisbon, Portugal, where the items were stored until 1926. Thetablet eventually arrived in Germany in 1926 and ultimately was put on display in the museumfrom 1934 until the outbreak of World War II in 1939, when it was inventoried and placed instorage. The tablet was discovered to be missing from the museum's inventory sometime aroundthe end of the war in 1945.
In 2003, Riven Flamenbaum died in possession of the tablet. Neither his will nor theaccounting filed by the executor of his estate made specific mention of the tablet. During theinstant accounting proceeding, Riven Flamenbaum's son, Israel Flamenbaum, filed objections tothe accounting and informed the museum of the possession of the tablet by the estate, which wasthe first time since 1945 the museum had direct knowledge of the tablet's whereabouts. Shortlythereafter, the museum filed a notice of appearance and claim with the Surrogate's Court seekingto recover the tablet. After a hearing, the Surrogate's Court found that the museum established itsprima facie burden of proving legal title or a superior right of possession to the tablet, but that itsclaim was barred by the doctrine of laches. The museum appeals and Hannah K. Flamenbaum, asexecutor of the estate of Riven Flamenbaum, cross-appeals.
For the executor to establish, on behalf of the estate, an affirmative defense on the basis ofthe doctrine of laches, she must demonstrate that the museum failed to exercise reasonablediligence to locate the tablet and that such failure prejudiced the estate (see Solomon R.Guggenheim Found. v Lubell, 77 NY2d 311, 321 [1991]). The executor did not establish thatthe museum failed to exercise reasonable diligence to locate the tablet (id.; cf.Bakalar v Vavra, 619 F3d 136, 147 [2010]). The executor's contention that the museumfailed to exercise reasonable diligence by not reporting the tablet stolen to law enforcementauthorities or listing it on an international stolen art registry is not, under the circumstances ofthis case, dispositive. The executor's argument that, had the museum taken such steps, the tabletwould have surfaced earlier, is mere conjecture and, moreover, is not supported by expert orother evidence.
In any event, the executor also did not demonstrate that the museum's failure to report thetablet as missing to authorities or list it on a stolen art registry prejudiced the estate in its abilityto defend against the museum's claim (see generally Bakalar v Vavra, 619 F3d at140-141; Kunstsammlungen Zu Weimar v Elicofon, 678 F2d 1150, 1164 [1982]; cf. Matter of Peters v Sotheby's Inc., 34AD3d 29, 38 [2006]; Wertheimer v Cirker's Hayes Stor. Warehouse, 300 AD2d 117[2002]). Further, there is no proof that the estate changed its position to its detriment because ofthe delay (see Rivers v Rivers, 35AD3d 426, 428 [2006]). Moreover, the equities favor the return of the tablet to the museumover its retention by the estate. Accordingly, the Surrogate's Court should have granted themuseum's claim against the estate for the return of the gold tablet and directed the executor, onbehalf of the estate, to return the tablet to the museum. We therefore remit the matter to theSurrogate's Court, Nassau County, for further proceedings including the entry of a decree, interalia, directing the executor to turn over the subject property to the museum.
The executor's cross appeal on behalf of the estate must be dismissed, as the executorchallenges only the Surrogate Court's findings of fact and conclusions of law that the museummet its prima facie burden of proving legal title or a superior right of possession to the subjectgold tablet in the possession of the estate, which are not independently appealable (see Ramirez v City of New York, 90AD3d 1009 [2011]; Granata v Cityof White Plains, 88 AD3d 948, 949 [2011]; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770[2011]; Matter of Noelia T., 70AD3d 957 [2010]; Lester & Assoc.,P.C. v Eneman, 69 AD3d 906 [2010]; Zoref v Glassman, 44 AD3d 1036 [2007]; Clark v Weiner,254 AD2d 322 [1998]). To the extent that, in light of our determination on the appeal, theexecutor's argument made on the cross appeal could be viewed as an alternative ground foraffirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545[1983]), such argument is without merit as the museum [*3]established that it had legal title and a superior right of possessionto the tablet (see generally Solomon R. Guggenheim Found. v Lubell, 153 AD2d 143,153 [1990], affd 77 NY2d 311 [1991]).
The executor's remaining contentions are either unpreserved for appellate review or withoutmerit. Skelos, J.P., Eng, Belen and Cohen, JJ., concur.