Not Reported in N.Y.S.
2d FOR EDUCATIONAL USE ONLY
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)
ALAIN WERTHEIMER Plaintiff, v. CIRKER'S
HAYES STORAGE WAREHOUSE, INC., and
PASCAL BODHISATTVA, INC., d/b/a PAS-
CAL DE SARTHE FINE ART, Defendants.
BODHISATTVA, INC., d/b/a PASCAL DE
SARTHE FINE ART, Third-Party Plaintiff, v.
DANIEL VARENNE and GABRIELLE BRY-
ERS, Third-Party Defendants.
SUPREME COURT : STATE OF NEW YORK
COUNTY OF NEW YORK : I.A.S. PART 25
ALAIN WERTHEIMER Plaintiff,
v.
CIRKER'S HAYES STORAGE WAREHOUSE,
INC., and PASCAL BODHISATTVA, INC., d/
b/a PASCAL DE SARTHE FINE ART, Defend-
ants.
BODHISATTVA, INC., d/b/a PASCAL DE
SARTHE FINE ART, Third-Party Plaintiff,
v.
DANIEL VARENNE and GABRIELLE BRY-
ERS, Third-Party Defendants.
Index No.: 105575/00
DATE: September 28, 2001
DeGRASSE, J.:
Motion sequence numbers 02 and 03 are consol-
idated for disposition.
In this action sounding in replevin plaintiff Alain
Wertheimer (“Wertheimer”) moves for summary
judgment against defendant Bodhisattva, Inc.,
sued herein as Pascal Bodhisattva, Inc. d/b/a Pas-
cal de Sarthe Fine Art (“Bodhisattva”). In motion
sequence number 03 Bodhisattva moves for sum-
mary judgment dismissing the action.
FACTS
This action presents a dispute of a kind increas-
ingly common in the courts of this state: plaintiff
claims to be the owner of a stolen or converted
work of art and asserts his superior right to own-
ership over defendant, which claims to be a good
faith purchaser.
The work of art in question is a 1902 oil painting
by Camille Pissarro entitled “La Seine - la passer-
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 1
elle de L'Institut, au fond, les quais et le Louvre”
(“the Pissarro painting”). Plaintiff alleges that the
Pissarro painting was stolen, along with a number
of other artworks owned by his grandfather,
sometime during World War II. The complaint
does not state when plaintiff's grandfather, Pierre
Wertheimer (“Pierre”) purchased the Pissarro
painting. Plaintiff claims that he and his brother,
non-party Gerard Wertheimer, have inherited the
painting. Bodhisattva purchased the Pissarro
painting in 1999, allegedly without knowledge
that the painting had been misappropriated from
plaintiff's grandfather.
Plaintiff's allegations concerning the loss of the
painting are as follows.
Pierre allegedly left France in June 1940 upon the
advent of the Nazi invasion. He was forced to
leave the Pissarro painting and a number of other
valuable works of art with a Mr. Village
(“Village”). Upon Pierre's instructions Village
delivered the works to Pierre's business associate
in Paris, George Petit-Barral.
In October 1940, Pierre's son, Jacques Wer-
theimer (the plaintiff's father, who will be re-
ferred to herein as “Jacques”) was decommis-
sioned from the French army. While waiting in
the south of France for an exit visa to allow him
to travel to the United States to join his family,
Jacques met Jacques Ehrlich (“Ehrlich”) who
claimed to be Pierre's longtime friend. Jacques
told Ehrlich that he wished to take his father's
paintings and other works of art with him to the
United States. The works at that time were in Par-
is, which was occupied by the Nazis. Ehrlich con-
vinced Pierre that he could help him in this aim
and induced Pierre to write two letters, one to
Village and one to Petit-Barral. The letter to Vil-
lage instructed him to travel to Paris, obtain the
works from Petit-Barral, and deliver the works to
Ehrlich. The letter to Petit-Barral instructed him
to give the works to Village.
Ehrlich delivered the letters to Village, who was
able to carry out Jacques' request. However, Ehr-
lich allegedly hid the works and told Jacques that
he had been unable to obtain the works from Vil-
Not Reported in N.Y.S.2d FOR EDUCATIONAL USE ONLY
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)
lage as planned. Jacques left France without the
works. Ehrlich then set about selling or otherwise
disposing of the works, including, apparently, the
Pissarro painting.
Ehrlich had disposed of most of the works by
1945, when Pierre was able to return to France.
Pierre filed a complaint against Ehrlich, which ul-
timately led to his criminal conviction in 1947.
As a result of the investigation and proceedings
against Ehrlich, Pierre was able to recover most
of the stolen art works. However, he did not re-
cover the Pissarro painting. The 1947 judgment
against Ehrlich (the “Ehrlich judgment”) de-
scribes the charge as “Breach of Trust” and de-
scribes Ehrlich's possession of the works as a
“bailment.” Ehrlich was found guilty of Articles
403 and 405 of the French Penal Code and was
sentenced to a term of fifteen months and ordered
to make restitution in the amount of three hun-
dred francs.
The Ehrlich judgment contains a number of state-
ments relied upon by the parties in their respect-
ive motions which are either ambiguous or in
need of explanation by reference to French law.
The Ehrlich judgment notes that Pierre had
brought a civil action before the examining ma-
gistrate, but it is not entirely clear from the record
before the court whether this action was the same
as, merged into, or separate from, the criminal ac-
tion that resulted in the judgment. The Ehrlich
judgment also notes that Pierre did not appear in
the criminal action and so was in “default.” The
significance of this “default” is not clear from the
parties' papers and the Ehrlich judgment notes
that the court ruled in Pierre's absence. The judg-
ment notes that Pierre had been compensated in
the amount of 4 million francs by “friends” of a
Mr. Fabiani, who apparently helped Ehrlich dis-
pose of the works. It also notes that several of the
works were returned to Pierre. The Ehrlich judg-
ment cryptically notes that “Pierre Wertheimer
was almost fully compensated, but not by Ehr-
lich.”
After the French Court's imposition of the Ehrlich
judgment the Wertheimers took several steps to
recover the Pissarro painting. The painting was
listed as missing in a 1947 publication entitled
the “Repetoire des Biens Spolies en France Dur-
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 2
ant La Guerre 1939-1945” (“List of Property Re-
moved from France During the War 1939-45”),
known in art circles as the “Repetoire.” Pierre ap-
parently caused influential people to write letters
regarding the Pissarro painting to a number of
governmental entities in Europe charged with re-
covering lost art. These letters were all written in
the late '40s or early '50s. The last act taken by
the Wertheimer family - up to Wertheimer's initi-
ation of the instant law suit - was a letter written
in 1960 to the German government abjuring any
claim against Germany for the loss of the Pissarro
painting.
It is unclear what happened to the painting after
its brief tenure with Ehrlich. Discovery in this ac-
tion has turned up a number of purported sight-
ings. In 1951 the painting was apparently advert-
ised for sale by the Schoneman Galeries in New
FN1
York City (“Schoneman”). Records of
Schoneman offered by Bodhisattva indicate that
the gallery and a partner sold the painting in 1954
to a Mr. Reichenbach, a resident of Paris, for
$5000. At some point thereafter the Pissarro
painting was sold by Reichenbach or some un-
known individual to an Emile Brunschwig, a res-
ident of Switzerland. It remained in Geneva with
the Brunschwig family until 1999, when Francois
Brunschwig (“Brunschwig”), who had inherited
the Pissarro painting, contacted third-party de-
fendant Daniel Varenne (“Varenne”) an art dealer
in Geneva, Switzerland. Varenne spoke to co-
third-party defendant Gabrielle Bryers, an art
dealer in New York, who contacted Pascal De
Sarthe (“De Sarthe”), Bodhisattva's principal.
FN1. Plaintiff has submitted a document
entitled a “Declaration” of an Adolf
Wuster, which, inter alia, states that a
painting by Pissarro was in Munich Ger-
many in early 1951. As this document is
unsworn, and as it is ambiguous as to
whether the painting discussed is the
Pissarro painting at issue herein, the doc-
ument is unpersuasive without some sup-
porting contextual information.
De Sarthe had a client named Michael Cohen who
was interested in buying a painting by Pissarro. In
Spring 1999 De Sarthe communicated with Bry-
ers concerning the painting, and asked a fellow
Not Reported in N.Y.S.2d FOR EDUCATIONAL USE ONLY
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)
dealer to view the painting in Geneva. In late
June 1999, the painting was mailed to De Sarthe
in Arizona for his inspection.
De Sarthe testified that he purchased the Pissarro
painting soon thereafter for $500,000 with the in-
tention of reselling the painting to Cohen. Though
Bodhisattva claims that it purchased the painting
from Varenne, Varenne's answer states that Var-
enne only acted as an agent and that he sold the
painting on behalf of Brunschwig. Varenne's ac-
count is supported by a letter from Brunschwig.
The parties' submissions are unclear concerning
the date the deal was consummated, but it was
certainly after the painting arrived in Arizona.
Plaintiff claims that De Sarthe committed to buy
the painting soon after its arrival in Arizona. The
portions of De Sarthe's deposition testimony at-
tached to the parties' papers are ambiguous on
this subject. In the deposition excerpts attached to
the parties' papers, De Sarthe indicates that he
was reluctant at first to buy the painting because
he was not sure that he could re-sell it to Cohen.
However, De Sarthe also states that he wanted to
go through with the deal because he wanted to do
business with Bryers and Varenne and felt that he
had already committed to purchase the painting
by having it shipped to Arizona. The parties do
not submit copies of any documentation memori-
alizing Bodhisattva's purchase of the Pissarro
painting, and it is unclear when Bodhisattva actu-
ally paid the purchase price.
There is also a question of fact concerning what
information De Sarthe had concerning the Piss-
arro painting's provenance before committing to
buy the painting. Plaintiff claims that he had only
the vague assurance from Bryers that the painting
had “been in the same house, that of a well-
known lawyer of Geneva . . . for 55
years.”Plaintiff claims that this statement should
have sounded a klaxon for any reputable dealer
because it indicated that the owner must have
purchased the painting during World War II or its
aftermath, when vast amounts of art in Europe
were misappropriated by the Nazis and by others
seeking to profit from the dislocation of war.
A series of conflicting provenances for the Piss-
arro painting were sent by Bryers and Varenne to
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 3
De Sarthe on July 29 and 30, 1999. The record is
unclear if these were sent before or after De
Sarthe had agreed to purchase the painting. The
initial written provenance sent on July 29 did not
reflect the ownership of Pierre Wertheimer and
indicated that an individual named Eger sold the
painting to Emile Brunschwig in 1947-48. The
following day Varenne sent De Sarthe two addi-
tional written provenances, each slightly different
than the last. The latter two provenances do re-
flect that the painting had been owned by Wer-
theimer “in the 1930s”, and that they had been
transferred to Emile Brunschwig in 1950-51 by
his brother in law Jean-Claude Eger, who is de-
scribed as an “intermediary.” Plaintiff claims that
this series of conflicting provenances was another
sign that should have put a reasonable dealer on
guard.
Another provenance, apparently prepared by Bod-
hisattva and provided to plaintiff by Cohen, con-
tains the claim that Pierre actually sold the paint-
ing to Jean Claude Eger in 1937. De Sarthe testi-
fied at his deposition that he had “no clue” how
this apparently false piece of information, which
was not contained in any of the provenances giv-
en to Bodhisattva, was included in the proven-
ance given Cohen.
At least one dealer subsequently approached by
De Sarthe was sufficiently suspicious of the
painting's provenance to conduct a search. Daniel
Lieberman, an art dealer in Minnesota, contacted
the Art Loss Register concerning the painting in
December 1999, soon after receiving a solicita-
tion from Bodhisattva. The day after receiving the
inquiry the Art Loss Registry reported back to
Lieberman that while the painting was not in its
registry it was reported as missing in the Re-
petoire. It is not clear from the record before the
court what action, if any, Lieberman or the Art
Loss Registry took after this exchange of inform-
ation.
While the parties' submissions are unclear on the
date, at some point after purchasing the Pissarro
painting Bodhisattva shipped the Pissarro paint-
ing to defendant Cirker's Hayes Storage Ware-
house, Inc. (“Cirker”) in New York, apparently in
anticipation of a sale to Cohen.
Not Reported in N.Y.S.2d FOR EDUCATIONAL USE ONLY
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)
The painting was seen by a dealer at the Cirker
warehouse who knew that the Wertheimer family
had some connection to it. This dealer notified
Wertheimer in March 2000 of the painting's loca-
tion and this lawsuit ensued. Plaintiff obtained a
TRO from Justice Parness of this court and the
parties ultimately stipulated to keeping the paint-
ing at Cirker's warehouse until the matter is re-
solved. Defendant claims that the TRO disrupted
a pending sale to Cohen.
DISCUSSION
A. Choice of Law
Given the number of jurisdictions through which
the Pissarro painting has passed, the first decision
confronting the court is choice of law.
Unfortunately the parties spend little time grap-
pling with this question. Plaintiff devotes less
than a page to the issue, arguing that the situs of
the injury is the relevant benchmark for making
the choice of law. In a circular argument, he as-
serts that the situs of the injury is determined by
New York Law. Plaintiff asserts that since New
York Law provides that a replevin claim does not
accrue until the original owner makes a demand
for the return of the property in question (the
“demand rule”), there is no injury until the de-
mand is made. As Wertheimer made his demand
to De Sarthe to return the painting from Wer-
theimer's residence in New York, plaintiff argues
that Wertheimer was injured in New York. This
argument fails because it assumes what it is
meant to prove. The argument applies New York
law (the demand rule) in determining whether
New York law governs this action.
For its part, defendant argues that Arizona law
applies for Statute of Limitations purposes, but
applies New York Law in support of all its other
arguments. Defendant provides no explanation as
to why Arizona applies only to the Statute of
Limitations issue.
New York's choice of law rules provide that ques-
tions relating to the validity of a transfer of per-
sonal property are governed by the law of the
state where the property is located at the time of
the transfer. (KunstsammlungenZuWeimar v
Elicofon, 536 F Supp 829, 845-6,aff'd678 F2d
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 4
1150; 19A New York Jurisprudence2d, Conflict
of Laws §28; see Greek Orthodox Patriarchate of
Jerusalem v Christie's Inc., ___ F Supp ___, 1999
Westlaw 673347.)This comports with the Restate-
ment's view and the majority of jurisdictions in
the United States. (Restatement [Second] of Con-
flict of Laws §244; Reyhan, A Chaotic Palette:
Conflict of Laws in Litigation Between Original
Owners and Good-Faith Purchasers of Stolen Art,
50 Duke L.J. 955, 964.)
While the timing of Bodhisattva's purchase of the
painting is unclear from the record before the
court, it is clear that the painting was in Arizona
when the deal was consummated. Other actions
attending the transfer of the painting occurred in
Arizona, such as the delivery to that State of a
transparency of the painting and the various
provenances. The painting's current presence in
New York City is fortuitous and does not provide
any basis for applying New York law. (See Auto-
cephalous Greek-Orthodox Church v Goldberg,
717 F Supp 1374, 1376,aff'd917 F2d 278;Restate-
ment [Second] of Conflict of Laws §247.)
For these reasons, the court finds that Arizona
Law governs this action.
B. Statute of Limitations
Defendant argues that this action is time-barred
by the Arizona Statute of Limitations.
While this court has held that New York's choice
of law rules require that the substantive law of
Arizona governs this action, defendant's reliance
on Arizona law for its Statute of Limitations ar-
gument is misplaced.
Statutes of Limitations are usually characterized
as procedural, and not substantive. A court gener-
ally adheres to the procedural rules of its forum
state even when applying the substantive law of
another state. CPLR 202 provides that “where the
cause of action accrued in favor of a resident of
the state the time limited by the laws of the state
shall apply.”As Wertheimer is a resident of this
state, New York's limitations period applies. (See
1 Weinstein, Korn & Miller, New York Civil
Practice, ¶ 202.02.)
In New York State, the applicable time for recov-
Not Reported in N.Y.S.2d FOR EDUCATIONAL USE ONLY
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)
ery of a chattel is three years. (CPLR 214[3].) In
addition to applying New York's limitations peri-
od, this court is also bound to follow New York's
rules of accrual. (See Ledwith v Sears Robuck
and Co., 231 AD2d 17, 23-24 [CPLR 202“is not
confined to the Statute of Limitations but em-
braces all laws that serve to limit the time within
which an action may be brought”].) In a replevin
action against a good faith purchaser, the action
accrues at the time that the alleged original owner
demands the return of the chattel. (Solomon R.
Guggenheim Foundation v Lubell, 77 NY2d 311,
317-18.)As noted above this is commonly re-
ferred to as the “demand rule.”
The rule in this State is that a cause of action for
replevin against the good-faith purchaser of a
stolen chattel accrues when the true owner makes
demand for return of the chattel and the person in
possession of the chattel refused to return it. . . .
Although seemingly anomalous, a different rule
applies when a stolen object is in the possession
of the thief. In that situation, the State of Limita-
tions runs from the time of the theft [cites omit-
ted] even if the property owner was unaware of
the theft at the time it occurred.
(Id., 77 NY2d at 317-18.)
The accrual rule articulated in Lubell thus distin-
guishes between the extremes of good faith pur-
chaser on the one hand and “thief” on the other.
A demand must be made of the former before a
replevin action with accrue; a demand is irrelev-
ant with respect to the latter and the action ac-
crues upon the theft. At worst Bodhisattva's beha-
vior would place it between these two extremes,
perhaps as a purchaser with “voidable
FN2
title.” (See 1 White & Summers, Uniform
Commercial Code, §3-12.) The parties do not
cite, and this court could not find, any authority
regarding when a replevin action accrues against
an entity with voidable title.
FN2. Based on the record before the
court there is some question whether
Bodhisattva would qualify as a purchaser
in good faith. Under the Uniform Com-
mercial Code, which has been adopted in
Arizona, good faith “in the case of a
merchant means honesty in fact and the
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 5
observance of reasonable commercial
standards of fair dealing in the
trade.”(Arizona Revised Statutes
§47-2103[A][2].) It is unclear from the
record before the court what constitute
“reasonable commercial standards” in
the art world regarding investigation of a
painting's provenance. However plaintiff
has brought forth some facts that tend to
show that Bodhisattva conducted very
little investigation and instead relied on
contradictory statements regarding the
painting's provenance from Varenne. The
ease with which Lieberman unearthed
questions regarding the Pissarro paint-
ing's provenance also calls into question
the reasonableness of Bodhisattva's con-
duct. Of course, whether Bodhisattva
was a good faith purchaser is only relev-
ant if the seller, in this case Brunschwig,
had only voidable title to convey.
In all events, plaintiff timely brought this action
no matter how Bodhisattva is characterized for
UCC purposes. The Lubell court's focus is on the
purported transfer of title to the named defendant,
the holder of the chattel. (Lubell 77 NY2d at
317-18, 320.)In a replevin action against the cur-
rent holder of the chattel the earliest relevant date
for limitations purposes is the transfer of the
property to that holder. Here, the relevant transfer
was sometime in June-August 1999, well within
New York State's three-year limitations period.
Accordingly this court finds that the action
against defendant is not barred by the applicable
3-year limitations period.
C. Laches
Under Arizona law, laches may not be imputed to
a party simply for delay in the assertion of a
claim.
Rather the delay must be unreasonable under the
circumstances, including the party's knowledge of
his or her right, and it must be shown that any
change in the circumstances caused by the delay
has resulted in prejudice to the other party suffi-
cient to justify relief.
(Flynn v Rogers, 172 Ariz 62, 66.)“Fundamental
Not Reported in N.Y.S.2d FOR EDUCATIONAL USE ONLY Page 6
Not Reported in N.Y.S.2d, 2001 WL 1657237 (N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
(Cite as: Not Reported in N.Y.S.2d)

fairness is the sine qua non of the laches doc-
trine.”(Harris v Purcell, 193 Ariz 409, 412.)
In the instant case, defendant has demonstrated
that the plaintiff's delay in bringing suit was un-
reasonable and that defendant has suffered preju-
dice as a result.
FN3. Plaintiff's Memorandum of Law in
Support of Motion for Summary Judg-
ment, p. 9 n. 6.)
For these reasons, this action is barred by laches.
CONCLUSION

With respect to the unreasonableness of the delay, Plaintiff's motion for summary judgment is
plaintiff does not even attempt to justify his lack denied. Defendant's motion for summary judg-
of diligence. The Wertheimer family literally did ment is granted. The clerk shall enter judgment
nothing to recover the Pissarro painting since the dismissing the complaint. This constitutes the de-
early 1950s. The last act taken by the Wer- cision and order of the court.
theimers with respect to the painting was to ab-
Wertheimer v. Cirker's Hayes Storage Ware-
solve Germany in 1960 from any responsibility
house, Inc.
for the painting's disappearance. The painting ap-
Not Reported in N.Y.S.2d, 2001 WL 1657237
parently surfaced for a lengthy period, when it
(N.Y.Sup.), 2001 N.Y. Slip Op. 40445(U)
was advertised for sale by the Schoneman Galler-
ies in New York City. Wertheimer was made END OF DOCUMENT
aware by his grandmother in the early 1970s that
some of the family property had been looted dur-
ing the war. Plaintiff and his family did not report
the Pissarro painting missing to the Art Loss Re-
gistry, or contact galleries or museums regarding
the painting.

Defendant has demonstrated how this delay has

caused it ample prejudice in asserting its possess-
ory rights to the painting. None of the parties to
the original bailment to Ehrlich are alive. The
painting's lengthy odyssey in Europe and the
United States is the subject of conflicting ac-
counts, at least prior to the Brunschwig purchase.

Plaintiff acknowledges that, in addition to the

various provenances produced by Varenne,
“several conflicting documents were produced
during discovery indicating that the Pissarro
painting was in various different countries at the
FN3
same time.” The circumstances of each pur-
chase of the Pissarro Painting are important, be-
cause if any one of the purchasers prior to Bod-
hisattva obtained good title, then that title would
be conveyed to all subsequent purchasers, includ-
ing Bodhisattva. (Arizona Revised Statutes
§47-2403[A] [“purchaser of goods acquires all
title which his transferor had or had power to
transfer”].) Bodhisattva will be substantially pre-
judiced by this inability to gather definitive evid-
ence on the legitimacy of these prior purchases.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.