Picasso’s “The Artist”

An attempt to see a Pablo Picasso painting hanging at the Metropolitan Museum of Art returned to the estate of a Jewish couple forced to flee Nazi Germany was stymied Wednesday.

U.S. District Judge Loretta Preska of the Southern District of New York granted the Met’s motion to dismiss the amended complaint, filed in January by Swiss resident Laurel Zuckerman, that sought replevin of Picasso’s “The Artist” painting and conversion damages of $100 million. Zuckerman is the heir to the estate of Alice Leffmann, who, along with her husband Paul, was forced to sell all possessions in order to flee anti-Semitic persecution first by the Nazis and then by the Italian fascists.

With money and time running out, the Leffmanns negotiated the sale in 1938 of their last prized possession through a dealer holding the painting in Switzerland. They ultimately secured $12,000 from a sale to Parisian art dealers Hugo Perls and Paul Rosenberg. The money would ultimately allow them to flee Europe for South America. They eventually settled in Switzerland after the war.

The painting was lent in 1939 by Rosenberg to the Museum of Modern Art in New York. It was then consigned for sale in 1940 to a private buyer, Thelma Chrysler Foy, who donated it to the Met in 1952. It has remained there ever since.

Zuckerman’s amended complaint alleges that her great-granduncle and aunt were forced to sell the painting under Italian law principles of duress, and public order and morals. The Met moved to dismiss the claims, arguing, among a number of deficiencies, that under either Italian or New York law, duress was not adequately alleged, and that even under Italian public law and older laws there was no violation in the sale.

In granting the Met’s dismissal of the amended complaint, Preska found that, on the issue of duress, there was, in fact, no difference between New York and Italian law. While Italian fascism may have driven the couple to sell, it was not directly the reason they were forced to sell and “[a] general state of fear arising from political circumstances is not sufficient to allege duress,” Preska wrote.

An attempt by Zuckerman to time her public order and morals argument to a post-war Italian law that sought to bring back goods sold as part of an anti-Semitic persecution likewise failed, Preska noted, because the sale occurred before the October 1938 cutoff date stipulated by the law.

The claims failed under New York law, most clearly because the defendants in the suit have to be at fault for causing the duress. Simple general economic pressures alone aren’t enough as well under New York law, Presksa noted. No claims that Perls, Hugo or Rosenberg put undue pressure on the Leffmanns were being made by Zuckerman, nor any claim that it was fascist Italy, directly, that forced the sale. Preska pointed to years of negotiations between the Leffmanns and numerous parties before the sale of the painting that showed the couple attempting to leverage their position for the greatest gain.

Likewise, in a lengthy choice-of-law analysis over Zuckerman’s claim that there is an outcome-determinative difference between the two sets of laws, Preska found that New York has the greatest interest in the litigation, considering the time the painting has been in the state. But as she previously noted, even under New York law, the claims fail.

Zuckerman’s representation was led by Herrick Feinstein partner Ross Hirsh. In a statement, he said his client was disappointed in the court’s decision, and planned to appeal.

In a statement, the Met said it welcomed the “thorough and well-reasoned decision” in the case. It stated that it considers all Nazi-era claims about works in its possession “thoroughly and responsibly, and that objects have been returned when evidence has demanded it.

“Here, however, as the court clearly explained, the painting was never in the hands of the Nazis and was never sold or transferred as a result of Nazi-era duress,” the museum said.

Wilmer Cutler Pickering Hale and Dorr partner David Bowker represented the Met in the case.