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The purported owner of a Pablo Picasso painting who claims an ancestor was intimidated by the Nazis into selling the work received a chilly reception yesterday from Southern District Judge Jed S. Rakoff. Judge Rakoff refused to block the planned auction today of Picasso’s “Portrait de Angel Fernandez de Soto” at Christie’s New York auction house, saying he lacked jurisdiction. On Monday, Judge Rakoff had issued a temporary restraining order in the case, but only so that a hearing could be held yesterday morning. The case was brought by Julius Schoeps, an heir to the Berlin banker Paul von Mendelsshon-Bartholdy, who was descended from Jews. Mr. Schoeps claimed that the Nazis were closing in on his wealthy ancestor in 1934 and the banker was forced to sell the painting or will it to his wife, Elsa, who was then forced to sell it into a depressed art market. Mr. Medelssohn-Bartholdy died in 1935. Picasso produced the oil-on-canvas painting in 1903. It also bears the name “The Absinthe Drinker (Angel Fernandez de Soto).” The subject shared a studio with Picasso. “The elegantly dressed sitter appears to scrutinize the viewer with an intense gaze, his inner agitation suggested by the forceful brushstrokes and the cloud of smoke hovering above him,” said the catalog for Christie’s Impressionist and Modern Art Evening Sale. According to the complaint filed Friday in Schoeps v. Andrew Lloyd Webber Art Foundation, 06 Civ. 12934, Mr. Mendelssohn-Bartholdy, a Christian, placed five Picassos, including the de Soto, on consignment for sale with Berlin art dealer Justin K. Thannhauser in 1934. Mr. Thannhauser then sold the painting in 1936 to M. Knoedler & Co. in New York City. The painting was purchased in 1995 by the London-based Andrew Lloyd Webber Art Foundation at auction at Sotheby’s for $29.1 million. It hopes to fetch between $50 million and $60 million at auction. In addition to finding that no federal subject matter jurisdiction existed, Judge Rakoff, also declined to exercise supplemental jurisdiction over the state law claims that the plaintiff attached to the lawsuit. Mr. Schoeps is expected to press his suit this morning in state court in a last-ditch effort to block the sale. Mr. Schoeps is represented in the case by John J. Byrne, Thomas Hamilton and Lloyd Goldenberg of Byrne Goldenberg & Hamilton in Washington, D.C., and David Pikus of Bressler, Amery & Ross in New York City. Mr. Byrne came in for some tough questioning from a judge skeptical about the last-minute filing of the complaint and Mr. Schoeps’ claim that he was only seeking the return of the painting and not money. Referring to the world of art auctions, Judge Rakoff said sarcastically, “They’re all guided by their belief in truth and beauty.” He added, “One might suspect that this is just a fight about money.” Mr. Byrne argued that federal jurisdiction existed because of long-standing U.S. policy on restitution to victims of Nazi persecution and the passage of laws to help with the recovery of seized artworks, all of which, he said, lent such “an intense federal color” to the claims. But Mr. Byrne was also forced to admit that there was “no express private right of action” under federal law and Judge Rakoff was unconvinced by his arguments. Michael E. Salzman of Hughes Hubbard & Reed represented Christie’s. Carey Ramos of Paul, Weiss, Rifkind, Garrison & Wharton represented the London-based foundation. Mr. Ramos said out of court that the claim was “utterly spurious.” “Usually these issues come out long before auction, but this one came out of the blue,” he said. “This painting has been sold a few times and has been exhibited widely.” The foundation said in a statement that the painting’s provenance had never been questioned in the 11 years the organization owned it. One of the claims that was attached to the federal lawsuit and will be renewed in state court is for restitution. A second is that the painting was held in a constructive trust. Yesterday, Judge Rakoff was angry with attorneys for the plaintiff and Christie’s – the plaintiff because he had obtained an order from Judge Deborah Batts sealing the complaint and Christie’s because it filed opposing papers under seal. But the judge ordered the documents unsealed, saying any potential buyer “should not be defrauded with the connivance of the court.” – Mark Hamblett can be reached at [email protected] The Associated Press contributed to this story.

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