Was an action seeking to recover a 3,000-year-old artifact that was missing from an estate for 58 years barred by the doctrine of “laches”?
In Matter of Flamenbaum, 2013 NY Slip Op 07510, a probate proceeding:
[T]he Vorderasiatisches Museum in Berlin, Germany (the Museum) [sought] to recover a 3,000-year-old gold tablet from the estate of Riven Flamenbaum (the Estate). The tablet was first discovered prior to World War I by a team of German archeologists excavating at the foundation of the Ishtar temple in Ashur, Iraq. The tablet dates back to the reign of Assyrian King Tukulti-Ninurta I (1243-1207 BCE) and bears an inscription written in Assyro-Babylonian language and Middle-Assyrian cuneiform script. The tablet was shipped to the Berlin Museum (now the Vorderasiatisches Museum) in 1926. The Museum’s inventory book catalogs the arrival of the gold tablet and provides a description and a sketch. In 1939, the Museum was closed because of World War II, and objects from Ashur were put in storage. In 1945, at the end of the war, the gold tablet was missing.
The tablet resurfaced in 2003, when it was discovered among the possessions of the decedent, a resident of Nassau County and a holocaust survivor. When Hannah K. Flamenbaum, the decedent’s daughter and executor of the Estate, petitioned to judicially settle the final account, she listed a “coin collection” as an asset of the Estate. Her brother, Israel Flamenbaum, objected to the accounting, and claimed that the coin collection “includes one item identified as a ‘gold wafer’ which is believed to be an ancient Assyrian amulet and the property of a museum in Germany.” Israel also notified the Museum about the tablet, and the Museum responded that the gold tablet is part of its Assyrian collection and had been missing since the end of World War II. Id. at 2.
The museum sought to recover the tablet. However,
[a]fter the hearing, Surrogate’s Court determined that, although the Museum met its prima facie burden of proving legal title or superior right of possession to the tablet, its claim was barred by the doctrine of laches [meaning “prejudicial delay”] because the Museum had failed to either report the tablet’s disappearance to the authorities or list the tablet on any international stolen art registries. This inaction, according to the court, prejudiced the Estate’s ability to defend against the Museum’s claim to the tablet. Id. at 2-3.
The Appellate Division reversed concluding that laches had not been proven because “the Estate had not established that the Museum failed to exercise reasonable diligence to locate the tablet, or that the Museum’s inaction had prejudiced the Estate.” Id. at 3.
The Court of Appeals affirmed on the ground that:
The Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” (95 AD3d at 1320, citing Solomon R. Guggenheim Found v. Lubell, 77 NY2d 311, 321 ; see also Sotheby’s Inc. v. Shene, US Dist Ct. SD NY, 04 Civ 10067, Griesa, J., 2009). While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in the possession of the tablet (compare Matters of Peters v. Sotheby’s Inc., 34 AD3d 29, 37-38 [1st Dept 2006], lv denied 8 NY3d 209  [laches barred claim where owner had actual knowledge of the identity of the party in possession but did not demand return of the property]). As we observed in Lubell, in a related discussion of the defense of statute of limitations, “[t]o place a burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would… encourage illicit trafficking in stolen art” (77 NY2d at 320). Id.