'Portrait of Wally' by Egon Schiele
‘Portrait of Wally’ by Egon Schiele ()

A man who helped a family in a 13-year fight to recover an Egon Schiele painting seized by the Nazis after Germany annexed Austria in 1938 is not entitled to a share of the compensation they received, a federal judge has ruled.

Robert Roistacher claimed he was entitled to $2.75 million of a $19 million settlement that the estate of Lea Bondi Jaray reached with the Leopold Museum of Austria in 2010 over Schiele’s “Portrait Of Wally.”

But Southern District Judge Katherine Forrest (See Profile) said there was no evidence that Roistacher, who was dating family member Ardith Bondi, ever expected to be paid.

“Instead, this is a situation in which a good deed has gone unrecognized: plaintiff gratuitously assisted his girlfriend and her family in obtaining rights to ‘Portrait of Wally,’ but frankly never expected they would succeed,” Forrest said in Roistacher v. Bondi, 11 Civ. 8200.

“Portrait of Wally” is a 1912 oil painting of Valerie “Wally” Neuzil, Schiele’s mistress and model.

The painting, which Lea Bondi Jaray was forced to surrender to a Nazi agent, was part of an exhibition at the Museum of Modern Art in December 1997, when the Bondi family began its long effort to recover it.

Henry Bondi, a nephew of Jaray, spoke with a Holocaust art restitution specialist about the family’s ownership claim and then sent a letter to the MOMA asserting ownership rights of the painting.

Roistacher, who has a literary agency, contacted the Manhattan District Attorney’s Office. When a subpoena from that office to keep the painting in the United States failed in New York State court, the U.S. Customs Service seized Wally as stolen property that had been imported in violation of federal law. The Southern District U.S. Attorneys’s office then filed an action to retrieve the painting permanently on behalf of the heirs.

In his lawsuit alleging unjust enrichment by the family, Roistacher said he was instrumental in obtaining legal counsel for the family, and that, at various points, certain family members, including Ardith, promised him compensation if their efforts succeeded.

But in her decision, Forrest said Roistacher never had a possessory interest in the estate’s funds.

“Moreover … the estate has been enriched by the settlement, but not unjustly— the funds are the product of a long and hard-fought legal battle (with which plaintiff actually had very little to do in the long term),” she said.

The judge also pointed to a concession by Roistacher that he “might have conferred a gift of services upon his friend Ardith Bondi” as inconsistent with any expectation of being paid.

And while Ardith and another family member made comments to the effect that Roistacher should receive something for his efforts, the judge said neither person “was equipped with proper authority to bind the estate.”

Forrest closed by saying that some compensation for Roistacher would be “morally appropriate,” but that it was not up to her.

“Given the history of this painting, recognizing the morally correct course has significance,” she said. “Receipt of value for the asset wrongly taken by the Nazis should be untainted; the beneficiaries of the estate have the ability to rectify this situation. This court does not.”

Roistacher, who appeared pro se, said Thursday he would move for reconsideration and, if need be, appeal the decision.

He said his efforts “had the effect almost immediately of getting the D.A. involved,” and there was “even more success when America museum directors committed to a program that caused paintings to be restituted much more easily than before.”

Dean Nicyper of Flemming Zulack Williamson Zauderer was lead counsel for the defendants. “We’re very happy with the decision,” Nicyper said. “It’s clearly the correct decision because he does not have a legal or factual basis for a claim against the estate.”