Georg Grosz, The Poet Max Herrmann-Neisse, one of the three paintings the artist's heirs are claiming from the Museum of Modern Art.

• Original Complaint of Grosz Heirs, April 10, 2009
• MOMA's Support for its Motion to Dismiss, July 1, 2009
• Plaintiffs' Opposition to Motion to Dismiss, June 25, 2009
• Court Grants MOMA's Motion to Dismiss, Jan. 6, 2010
• Court Decision Denying Grosz Heirs Motion for Reconsideration, March 3, 2010

CASES AND RECOVERY EXPERIENCE

United States: Grosz Heirs v. Museum of Modern Art

This case was brought in Federal Court in New York by the heirs of the German artist Georg Grosz to recover three paintings from the Museum of Modern Art (MOMA) in New York.

Grosz emigrated to America in 1933 only weeks before Hitler was named chancellor. The artist left these works among others with his Jewish dealer in Berlin, Alfred Flechtheim, who left Germany for Paris and London within the year. Following the dealer's death in 1937, Grosz's works were sold without his knowledge and each took a different path through the murky art marketplace before, during and after World War II, with all three of these works being acquired by the museum by the early 1950s.

Grosz's heirs and MOMA had discussions, correspondence, and exchanged information for several years; the heirs filed suit just a few days shy of three years after MOMA sent a letter saying that the Board of Trustees had voted not to relinquish the art. The museum responded with a Motion to Dismiss the lawsuit arguing that the statute of limitations had elapsed, and on January 6, 2010 the Court agreed with MOMA that the suit came too late. The heirs appealed the decision on January 20, and filed a Second Amended Complaint, answered by the museum on February 1. (We post these papers as links at the left.)

The court's decision may be a departure from previous New York art-recovery cases that raised the statute of limitations as a defense. The "New York rule" (set out in a decision in NY court in the 1960s) requires that a lawsuit to recover stolen property be filed within three years of the original owner discovering the whereabouts of the property, demanding its return, and being refused. Subsequent cases in New York courts and in Federal Courts in the state have tested and clarified many aspects of the rule.

In Grosz v. Museum of Modern Art the court held that the museum had in effect, refused the plaintiffs' demand for the works' return for at least 18 months before its final letter. The earlier letters and the museum's retaining the paintings meant "no," even without using the word "refuse" and would stand as a refusal as a matter of law. In so doing, the Court purported to clarifying existing law.

The court also touched on the question of the heirs' delay in demanding the property decades after they knew its whereabouts. It said that while the delay was irrelevant to New York's three-year statutory period, it was relevant in the context of the defense of laches. However, since the court found that the suit was time-barred, it did not reach the laches issue (in which the behavior of each party is weighed in the balance -- an equitable defense).

On March 3, 2010, the court denied the heirs' motion for reconsideration. The decision summarized the legal steps taken to date and included excerpts from some additional papers both parties had submitted, in which the Grosz heirs' agent gave testimony saying that MOMA had refused their demand for the paintings more than three years before they brought suit.