Category Archives: Evidence

Schiele Portrait of Wife Title Dispute Meets the Doctrine of “Tax Estoppel”

This was originally posted on the SGR Blog.

Was New York Rule of Evidence Dispositive of Ownership of Austrian Painting?

Our news media regularly report on disputed claims to artwork taken during World War II. But, as a recent case illustrates, the passage of time and the crossing of national borders implicate many procedural and evidentiary rules that are unrelated to a particular painting’s provenance or country of origin.

In 1917, Austrian artist Egon Schiele made a portrait of his wife Edith. In 1964, the artwork was bought by art collector Robert Lehman, Sr. from an exhibition at an art gallery in London, England. And, later that year, Lehman, Sr. gifted the artwork to his son, Robert Owen Robin Lehman. In 2016, Robin gifted the artwork to the Robert Owen Lehman Fund, Inc., his eponymous foundation. After the Fund consigned the artwork to Christie’s for auction, two groups asserted competing claims of ownership of the artwork, alleging that the artwork left the possession of its rightful owner during the Holocaust. Israelitische Kultusgemeinde Wien represented the Susan Zirkl Memorial Foundation Trust, which claimed ownership of the artwork as an heir of Karl Maylander. Robert Rieger Trust and Michael Bar claimed ownership as heirs of Heinrich Rieger.

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The First Department’s Jan. 29 ‘spoliation trifecta’

By Victor M. Metsch

Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  This article was originally published by ThomsonReuters.

On Jan. 29, 2013, the First Department released three decisions that addressed issues related to “spoliation” of evidence that, taken together, constitute a primer on how that Appellate Division approaches both the claims of loss, destruction or failure to preserve evidence, on the one hand, and the consequences and sanctions for the negligent or intentional failure to maintain and produce documentary and other proof, on the other.

In Alleva v. United Parcel Service, Inc., 2013 NY Slip Op 00409 “a security guard employed by defendant Pitt [Investigations, Inc.] at a UPS center, [sought] to recover for injuries he sustained when he allegedly was assaulted by defendant [Gary] Calwood, a UPS employee, while searching Calwood’s belongings.” Alleva sought, and UPS was unable to produce, its “center file” on Calwood – a file that “would document any previous disciplinary issues[.]” Continue reading