In re Flamenbaum Brief of Amici Curiae

8/14/2019 In re Flamenbaum Brief of Amici Curiae

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Appellate Division, Second Department, DocketN o.2010-04400i>tatedMJleto ^orfe

CourtofSppealgIn theMatterof theAccountofProceedingsofHannahK.Flamenbaum,asExecutorof theEstateof

RIVEN FLAMENBAUM, DeceasedAnd theApplicationofVorderasiatisches Museumfor aDeterminationof theValidityandEnforceabilityof aVerified Claim.

VORDERASIATISCHES MUSEUM, Cla imant-Respondent,against

HANNAHK .FLAMENBAUM, Executor-Appellant,and

ISRAEL FLAMENBAUM Objectant-Respondent.BRIEFOFAMICI CURIAE

JosephA .PatellaAndrews KurthLLPLucilleA.Roussin,J.D., Ph.D.LawOfficesofLucilleA .Roussin 45 0Lexington Avenue01 East 63rd StreetN ewYork,N e wYork 10065Telephone: 212.888.0468Facsimile: 212.888.0093N ewYork,N Y 10017Telephone: 212.850.2839Facsimile: 212.850.2929Email: [email protected]: [email protected] .KlineAndrews KurthLLP1350 IStreet,N W ,Suite 1100Washington,DC 20005Telephone: 202.662.2716Facsimile: 202.662.2739Email: [email protected]

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TABLEOFCONTENTS

Preliminary Statement,IntroductionInterestofAmiciArgumentConclusion

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TABLE O FAUTHORITIESPage s)

CASESAgudas Chasidei Chabadof United States v.Russian Federation,528 F.3d 934 (D.C. Cir.2008) 11Autocephalous Greek-Orthodox Church ofCyprus v.Goldberg andFeldman

Fine Arts, Inc., 917 F.2d 278 (1990 7th Cir.) 9Banco Nacional de Cubav.Sabbatino,376 U.S.398(1964) 11Cultural Property Protection inStability Operations,

2008 T heArmyLaw 47, 48(2008) 7Kunstsammlungen Zu Weimar v.Elicofon,

678 F.2d 1150 (2d Cir. 1982) 3,8, 9, 10Menzel v.List,2 67N.Y.S.2d 804 (Sup. Ct 1966),modified onother grounds, 279N.Y.S.2d 608(1967),modification rev d, 298N.Y.S.2d 979(1969) . 3, 9, 10, 11Sotheby s, Inc. v.Shene,

No. 04 Civ.10067 (TPG), 2009 U.S.Dist LEXIS 23596 (S.D.N.Y.M ar .23,2009) passimUnited States v.Aleskerova,

300 F.3d 286 (2d Cir .2002) 10Vineberg v.Bissonnette,

548 F.3d 50 (1st Cir.2008) 2, 13OTHER AUTHORITIESA .Kirk Grayson,Assyrian Rulers of the Third and Second Millennia BC 11987)Dick Jackson, Cultural Property Protection inStability Operations, 2008

T h eArmyLa w 47, 48(2008) 7

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Lynn Nicholas, TheRape ofEuropa: TheFate ofEurope 9sTreasures in theThird Reich and the Second WorldWar(1994) 7 , 8MargaretM .Miles,Art AsPlunder: TheAncient Origins ofDebate AboutCultural Property 349-51 (2008) 5Patty Gerstenblith,Protecting Cultural Heritage inArmed Conflict LookingBack, Looking Forward (2009) 5Proclamations, Laws andOrdinancesLaw 52,ArticleII 8Prohibited Activities for U.S.Department ofDefense Personnel PresentWithintheUnited States Central Command (USCENTCOM) AOR(Dec. 19,2000) 7RobertM .Edsel,Rescuing Da Vinci: Hitler and theNazis Stole Europe sGreatArt America and HerAllies Recovered It 130(2006)Sen.Exec.Rep. No . 110-26,TheHague Cultural Property Convention....

85, 13

TheLieber Code: Instructions for theGovernment ofArmies of the UnitedStates in theField Art 36(1863) 5The 1954Hague Conventionon theProtectionofCultural Property DuringArmed Conflict,249U.NT.S. 215 (Ma y 14, 1954) 6ThomasR .Kline, Vorderasiatisches Museum Berlin Loses World War IITrophyArt Case in New Yorky2KunstUndRecht61, 62(2010) 11U.S.Customs Service Press Release, U.S.Customs Service ReturnsRenaissance Drawings Valuedat 15Million toGermany (Jul. 19, 2001) 11

1alter Andrae,D ie Grosse Zikurrat vo nAssur,

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P R E L I M I N A R Y S T A T E M E N TAmici, a group of organizations concerned with restitution of stolen and

looted art andcultural property, particularly cultural objects taken during times ofarmed conflict, and nations and other foreign entities that have suffered culturallosses as a result of wartime thefts and have engaged in the restitution process,1submit this brief in support of affirmance of the Decision and Order of theAppellate Division, Second Department, dated and entered on May 30, 2012( Appellate Order ) which ordered that th eproperty at issue inthese proceedings,an ancient tablet ( Tablet ),2 be returned to its rightful owner, the

Amici are: the Archaeological Institute of America, the American Schools of OrientalResearch, the Holocaust A rt Restitution Project, the Israelitische Kultusgemeinde Wien(Jewish Community Vienna), the Lawyers' Committee fo r Cultural Heritage Preservation,the Monuments M en Foundation for the Preservation of Art, the Perm Cultural HeritageCenter at the University of Pennsylvania, the United States Committee of the Blue Shield,the State of Baden-Wurttemberg of the German Federal Republic, the Republic of Cyprusand the Republic of Poland. B y Order dated October 18, 2012, this Court granted Amicimotion fo rleavetoparticipate inthese proceedings.2 * Amici note that this gold disc was one ofthree that were excavated infoundation depositsatthe comers of the great ziggurat at the site of Assur, located in northern Iraq. The twoexamples that wentto theBerlin Museum were apparently both stolen during World War II,while the third example w as sent to Istanbul (and isstill there). The discs measure 5cm indiameter and so look more like large gold coins than foundation deposits to anuntrained eye. Walter Andrae, Die Grosse Zikurrat vo n Assur, in Die Heiligtumer Des

VGottes Assur Und Der Sin-Samas-Tempel In Assur 2, 3 and Plate 5; A. Kirk Grayson, Assyrian Rulers of the Third an d Second Millennia BC (to 115 BC)211-12 (1987). Theinscribed discs are of immense historical andarchaeological value, as they were the sole insitu documentationfor thebuilder ofthis structure, identifiedby the inscriptionas one of therulers ofAssyria named Shalmaneser (probably Shalmaneser I). W ebelieve that these discsbelong in the Museum and their story exemplifies the reason that the law of the UnitedStates throughoutthe twentieth and into thetwenty-first centuries has forbiddentheplunderof cultural heritage collections during wartime. These objects areperfect examples of thevalue of documented context and ofkeeping such finds, together with their documentation,1

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Vorderasiatisches Museum Berlin ( Museum ). Specifically, Amici ask that thisCourt reject the entreaties of Executor-Appellant Hannah K. Flamenbaum( Appellant ) that the courts of New York State, long a bastion against entry oflooted art into this country, be the first to recognize a spoils of war doctrineunder which art andcultural objects taken in the courseorimmediate aftermathofwarfare become the property of the taker. This doctrine, more in tune with thementality and mores of the 1700s than the current era, is at odds with Americanlegal principles dating back at least to the Lieber Code which was written at therequest ofPresident Lincolnandplaced into effectby the WarDepartment in 1863toprevent lootingofcultural objectsbyUnion soldiers duringtheCivilWar.

I N T R O D U C T I O NAppellant 's core defenseinthis case, laches, requiresher tomakeashowing

of unreasonable delay on the part of the original owner of the property whichcaused prejudice to her,such as byinterfering withherabilitytopresent hercase.Vineberg v.Bissonnette, 548 F.3d 50, 56 (1st Cir.2008);Sotheby s, Inc. v.Skene,No. 04 Civ. 10067 (IPG), 2009 U.S.Dist. LEXIS 23596, at *13 (S.D.N.Y.Mar.

Appellant bases her laches defense on the bold and unsupported3, 2009).assertion that if the Museum's claim hadbeen brought while Riven Flamenbaum

in the museum that made the discovery, for the benefit of scholarship and to allowmuseum visitorstoexperience related objects together.

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( Flamenbaum )w asstill alive,hewould havehad theopportunitytoprovehe hadacquired good title to theTablet under a spoils of war theory, either by stealingth e Tablet himself from the Museum or by acquiring it from Soviet troops, whohad previously stolen the Tablet from the Museum. However, neither U.S. norinternational law recognizes any such spoils of war doctrine which would haveconferred title to the Tablet onFlamenbaum under either factual scenario. UnderU.S. common law, stolen property remains stolen property and a theft nevertransfers title either to the thief or to a subsequent good faith purchaser. SeeKunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150, 1160 (2d Cir. 1982);Sotheby s, Inc. v. Shene, 2009 U.S. Dist. LEXIS 23596, at *7-*8;Menzel v.List,267N.Y.S.2d 804, 819 (Sup. Ct. 1966),modified onother grounds, 279N.Y.S.2d608 (1967), modification rev d, 298N.Y.S.2d 979 (1969). Neither internationalnor U.S. lawallows theftofcultural objects during wartimetoresultintitle.

I N T E R E S T O F A M I C IAmici include organizations dedicated to the preservation of cultural

heritageand, inparticular, include several that wereand arestill involvedineffortsto protect cultural heritage during times of armed conflict. Amici also includeforeign entities that have themselves been victims of wartime cultural losses andhave engaged in the restitution process to recover cultural objects. Amici aresympathetic to victims of violence, such as Flamenbaum and members of his

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family, abhor the persecution and murders carried out by the Nazi regime duringthe Second World War and condemn th e destruction of cultural heritageperpetrated by the Nazis against individuals of Jewish descent and many others.Nonetheless, nosuch principle of U.S. orinternational law as a supposed doctrineof spoils of war has been recognized in this country forwell over acentury, atthe very least; as detailed below, U.S. courts, when called upon to consider thestatusofcultural objects taken during wartime, have consistently rejectedanysuchdoctrine. In alleging the existence of such a doctrine, Appellant failsto cite anysource of international or U.S. law in support of this theory (Appellant's LetterBrief at 16). No r can any be found. Amici urge this Court not to be the firsttodepart from these universal andwell-settled principles and not toopen the doortoapproving the types of looting and pillage of cultural artifacts that all too oftenaccompany armed conflict, conquest andmilitary occupation.

A R G U M E N TAppellant's suggestion that looting and illegal removal of cultural objects

during wartime by a conquering or occupying military force or by individuals isanything other than outright theftiscontrarytoUnited States' domesticlaw and tointernational law - international principles which the United States has played aleading role in developing. In thenineteenth century, th e United States was thefirst nation tocodify what had been anevolving principle - that cultural objects

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werenot to betreated aslawfulwarbooty, that is ,spoils that couldbefreely takenduring wartime. The Lieber Code, draftedfor theUnion ArmybyFrancis Lieberat therequestofAbraham Lincoln in 1863,stated:

If [classical] works of art, libraries, [or] collections .. . can beremoved without injury, th e ruler of the conquering state or nationm ay order them to be seized and removed for thebenefit of the saidnation. Theultimate ownership is to be settled by the ensuing treatyofpeace.In no case shall they besold or given away, ifcaptured by theUnited States, nor shall they ever be privately appropriated, or

wantonly destroyed orinjured.3

J Th eLieber Code: Instructions for the Government ofArmies of the United States in theField Art 36 (emphasis added) (1863)available at www.civilwarhome.com/liebercode.htm.Lieber w as likely influenced by the actions of the Duke of Wellington and ViscountCastlereagh after their victory in 1815 at the Battle of Waterloo (a t which Lieber waspresent) when they refused to accept as spoils of wa r the works of art and other culturalobjects that Napoleon had earlier stolen from several European nations. Se e Margaret M .Miles, Art As Plunder; The Ancient Origins of Debate About Cultural Property 349-51(2008). A f e w years earlier, aBritish judge refusedto allowthe British to keep a cargo ofpaintings that they had seized from a ship, th e Marquis de Somemeles, that w as carryingpaintings from ItalytoPhiladelphia duringthe War of 1812. The Marquis de Somerueles,Nova Scotia Stewart's Vice-Admiralty Reports 482 (Vice-Admiralty Court of Halifax1813).Therecognition that art works an d cultural objects deserved aspecial status an d shouldnot besubjectto thesame rules that appliedtoother typesofproperty can betraced toGreekand Roman times. The Greek historian Polybius condemned th e wanton destruction ofcultural works without military justification as theproduct of a frenzied mind at theheightof its fury. The Roman orator Cicero condemned the actions of Gaius Verres, th e Romangovernor ofSicily, whom Cicero prosecuted fo rcorruption, includingth e looting ofculturalobjects. Se e Sen.Exec. Rep. No. 110-26, The Hague Cultural Property Convention, at 1-4

(Sept. 16 , 2008), available at http://www.gpo.gov/fdsys/pkg/CRPT-l 10erpt26/html/CRPT-110erpt26.htm; Miles, supra, at 82-86, 96-99; Patty Gerstenblith, Protecting CulturalHeritage inArmed Conflict Looking Back, Looking Forward, 1 Cardozo Public Law,Policy & Ethics J. 677, 680(2009).5

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The Lieber Code, written for amilitary advisory committee led by GeneralHenry Halleck, greatly influenced th e development of two international legal

instruments that codified principles for the conduct of warfare during the twoWorld Wars of the past century: the Hague Conventions of 1899 and 1907.Articles 23, 28 and 47 of the Annex to the 1899 Hague Convention (II) withRespectto theLaws andCustomsof War onLand outlawed pillageand seizurebyinvading forces. Likewise, Article 56 of the 1907Hague Convention respectingthe Laws and Customs of War on Land (of which the United States is a StateParty) forbids seizureof,destructionorwillful[sic]damage donetoinstitutions . ..,historic monuments, worksof art andscience . . . The 1954Hague Conventionon the Protection ofCultural Property During Armed Conflict,249 U.N.T.S. 215(May 14, 1954), whichwasbased onorders issuedbyGeneral Eisenhowerfo r theAllies' conduct of war in Europe, continued these prohibitions. In particular,Article4(3) of the 1954Convention states:

The High Contracting Parties further undertake to prohibit,prevent and, ifnecessary, put a stop to any form oftheft, pillage, ormisappropriation of, and any acts of vandalism directed against,cultural property.The United States signed this Convention in 1954, indicating its generalacceptance of these principles (although only ratifying it in 2009). The UnitedStateshad,however, adopted and followedt hecore provisions of the 1954HagueConvention as a matter of practice, regarding it as customary international law.

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For example, during the wars in Iraq and Afghanistan, th e United States militaryhasbeen subject to General Order No. 1A,which prohibits the looting ofcultural

sites or removal of cultural objects from either country. Prohibited Activities forU.S.Department ofDefense Personnel Present Within the United States CentralCommand (USCENTCOM) AOR (Dec. 19, 2000) Para. g (prohibiting[r]emoving5 possessing, selling, defacingordestroying archeological artifactsor

national treasures ), available at http://www.cemml.colostate.edu/cultural/09476/pd:f7GeneralOrderGO-l A.pdf. See also Dick Jackson, Cultural PropertyProtection inStability Operations, 2008TheArmyLaw 47, 48(2008).

During theAllied invasion ofEurope andpost-War occupationofGermany,theUnited States expended considerable effortinprotecting cultural objects fromtheftandensuring that they were returnedtotheir rightful pre-War ownerso r to thenations from which th e objects originated. See Lynn Nicholas, The Rape ofEuropa: TheFate ofEurope s Treasures in theThird Reich and the Second WorldWar (1994). Through the efforts of the Monuments, Fine Arts and ArchivesOfficers, United States military forces soughttoprotect these artworksandculturalobjects from local citizens and survivors of Nazi persecution, as well as frommembers of thearmed forces themselves. It wa s theofficial policy of the United

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States and the other western Allied nations to protect - not to take - culturalobjectsand toprohibit their troops from taking such objects.4

Military law put in place by the United States for its occupation zone ofGermanyat the end of theSecond WorldW ar explicitly forbade th esale, transferand export of works of art and other cultural material. Its purpose is to makepossible th erestorationtotheir rightful owners ofloot taken from other countries.In furtherance of this purpose, personnel of the Allied Expeditionary Forces inoccupied German territory willnotpurchase orotherwise trafficinsuch objects.Military Government ofGermany,Proclamations, Laws and Ordinances, Law 52,Article II ,para. 3(d). The United States itself refusedto accept any objects fromth e German collections and returned to Germany art works taken to the UnitedStatesf ortemporary display. Nicholas,supra, at369-405. This policy that stolen

4 The Rules of Land Warfare of the United States W arDepartment applicable during WorldWar IIstated:321. Two classes of movable property. - All movable property belonging to theState directly susceptible of military use may be taken possession of as booty andutilized for the benefit of the invader's government. Other movable property, notdirectly susceptible ofmilitaryuse,must berespectedandcannotb eappropriated.

Quoted inMenzel, 267N.Y.S.2d at 810 n.10. Anorder issuedbyGeneral Eisenhower statedthat souvenir hunting, writing onwalls ordamagein anyform willbedealt with asmilitaryoffences . Quoted in Robert M . Eds el,Rescuing Da Vinci: Hitler and the Nazis StoleEurope s Great Art - America and Her Allies Recovered It 13 0(2006). A norder issuedbyLt. General OmarN . Bradley stated: W e are aconquering army,but we are not apillagingarmy. Id . at 136. There are examples inwhich itseems that U.S. servicemen m ay haveimproperly appropriated cultural objects from Germany. However, these takings were neversanctioned by the United States or the U.S.military and should beviewed as rogue, illegalactions - nor have they been validated by any court in this country. See, e.g..Kunstsammlungen zu Weimar, 678 F.2d 1150;Skene, 2009U.S. Dist. LEXIS 23596, at *9.

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cultural objects should be returned to their rightful owners has been consistentlyrecognized in court decisions since the War. See Kunstsammlungen Zu Weimar,678 F.2d 1150;Autocephalous Greek-Orthodox Church ofCyprus v.Goldberg andFeldman Fine Arts, Inc., 917 F.2d 278 (1990 7th Cir.); Shene, 2009 U.S. Dist.LEXIS 23596, at *13.

In thepost-War Nuremberg trials,theUnited States joinedin theprosecutionofmembers of the Nazi leadership for crimes against humanity and forviolatingcustomary international la w that, among other things, prohibited th e theft andpillage of cultural objects. Alfred Rosenberg, as director of theNazi EinsatzstabReichsleiter Rosenberg ( ERR ), organized th etheftandconfiscationof artworksthroughout occupied Europe. After the War, he wasconvicted of war crimes andcrimes against humanity, including his involvement with the ERR's plunder ofboth public andprivate property,and wassubsequently executed. Nicholas,supra,at 132-42. This history demonstrates that both international law and U.S. law,policy andpractice strenuously condemn thetheftand looting of cultural artifactsduringwar andarmed conflict, with WorldWar II as no exception.

U.S.courts have also consistently held thatth etheftofcultural objects takenduring wartime does not transfer title either to the thief or to a subsequent goodfaith purchaser. This principle was first addressed in the context of Nazi artlooting in Menzel, in which the court allowed a victim of Nazi persecution to

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recover aChagall painting stolenby theNazis; th e Chagall hadbeen found in thecollection of a NewYork collector who hadpurchased it ingood faith. The court

held that the collector had not acquired title. The court there stated, Pillage, orplunder, . . . is th e taking of private property not necessary for the immediateprosecutionof wareffort,and isunlawful. Where pillagehastaken place, the titleof theoriginal owneris notextinguished. Menzel 267N.Y.S.2d at 811.

InKunstsammlungen Zu Weimar, the U.S. Court ofAppeals for the SecondCircuit allowed aGerman museum torecovertw o portraitsbyAlbrecht Durer thatwere stolen from aGerman museum, probably by a U.S.serviceman. InSkene, avolume of sixteenth century drawings and etchings was stolen from theStaatsgalerie Stuttgart apparently by a U.S. serviceman in 1945. The courtrecognized the continuing validity of Baden-Wurttemberg's title (theStaatsgalerie's successor-in-interest), stating thatth ethief couldnotpass valid titleof thebookto asubsequent purchaser.5

More recent is the decision, United States v.Aleskerova, 300 F.3d 286 (2dCir. 2002), in which the U.S. Court of Appeals for theSecond Circuit affirmedacriminal convictionforpossessionof andconspiracytopossess stolen property;the

5 In bothKunstsammlungen Zu Weimar andSkene, th ecourt refused to bar the claim of theGerman institutions under th e statute of limitations and in Shene also refused to bar theclaim under th e doctrine of laches. Kunstsammlungen, 678 F.2d at 1160-65; Shene, 2009U.S. Dist. LEXIS 23596, at *10-* 13.

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defendant,anAzerbaijani,hadtransportedagroupofdrawingsto theUnited Statesfrom Baku, including drawings that had been stolen by Soviet troops from the

Bremen Kunstverein during World War 11.6 See Thomas R . Kline,Vorderasiatisches Museum Berlin Loses World War II Trophy Art Case in NewYork, 2KunstU ndRecht 61, 62 (2010). The U.S.Customs Service returned theseworks to the Bremen Museum. See U.S. Customs Service Press Release, U.S.Customs Service Returns Renaissance Drawings Valued at 15 Million toGermany (Jul. 19, 2001), available at www.cbp.gov/hot-new/pressrel/2001 /0719-01.htm. TheUnited States thus recognized the validity of theBremen Museum's

6 Appellant never states what law she is relying on to assert that th e Soviet Union (orFlamenbaum) might have acquired title to the Tablet through theft. Appellant describes thelooting of German institutions carried out by the Soviet forces, pursuant to a decree signedby Josef Stalin (Appellant's Letter Brief at 13-15). Although Appellant failstocite any laworlegal doctrine that would support th eidea that th eSoviets might have obtained titleto theTablet pursuant to this decree, to theextent that she may be implying that th e Soviet Unioncould have acquired title to the Tablet under the act of state doctrine, that doctrine cannotapply to these facts. According to the act of state doctrine, the courts of theUnited Stateswill not question th e legality of an official act taken by another nation within its ownterritory. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). T he doctrine,which can be applied in the context of appropriations of property, requires that: (1) thetalcing must be carried out by a sovereign foreign government; (2) the property must belocated within th e territory of the appropriating nation at the time of theappropriation; (3)th e government must be extant and recognized by the United States, and (4) theappropriation must not be inviolation of atreaty obligation owed to the United States. See,e.g.,Menzel at812-13 (rejecting application of the act ofstate doctrine to theexpropriation of a Chagall painting carried out by the Nazis in Belgium); Agudas Chasidei Chabad ofUnited States v.Russian Federation, 528 F.3d 934 (D.C. Cir. 2008) (rejecting application ofact of state doctrine when, during World War II, theSoviet Union expropriated anArchivebelonging to the Agudas Chasidei Chabad and located in Poland at the time of theexpropriation). If the armed forces of the Soviet Union, acting on behalf of a foreignsovereign and not merely as individuals engaged in opportunistic looting, carried out theexpropriation of the Tablet, that fact would have no bearing on theMuseum's retention oftitleto theTablet.

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title to the works, despite atheft carriedout by Soviet troops at the end of WorldWar II.

Amici submit that rejection of a spoils of war doctrine is fundamentaltothe law,policies andpracticesof theUnited States,asappliedto itsmilitary and toit scitizens, and toprinciples of international law, asratifiedby the United Statesand the international community. Appellanthasfailedto cite to any legal sourcesto support the idea that such a spoils of war doctrine exists or existed any timeduring the twentieth century as applied to actions taken by the United States oractions consideredin U.S.courts. N ordoes Appellant explainwhy,with Americanforces engaged in armed conflict in the Middle East, adoption of a spoils of warpolicy wouldbebeneficialatthis time. A sGeneral Eisenhower recognized shortlybeforetheAllied invasionofEurope,

Shortly we will be fighting our way across th e continent ofEurope . . . . Inevitably, in the path of our advance will be foundhistorical monuments and cultural centers which symbolize to theworld all that we are fightingto preserve. It is the responsibility ofevery commander to protect and respect these symbols wheneverpossible.Quoted inEdsel,supra note 4, at 127. Thebelief that preservation of andrespectfor cultural heritage of allpeople is fundamentalto fulfillmentof U .S. goals andresponsibilities, even during wartime, is as valid today as it was when GeneralEisenhower made this statement. Inurgingthefull Senatetoratifythe 1954HagueConvention in September 2008, the Senate Foreign Relations Committee wrote

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C O N C L U S I O NFor all of the foregoing reasons, Amici ask that th e Court affirm the

Appellate Order to theextentitprovided that Appellantwas notprejudicedby anydelayon thepartof theMuseum becauseno set offacts could have established titleto theTablet basedon aspoilsof wardoctrine.

Respectfully submitted,

^ VJiAndrews KurthLLP450Lexington AvenueN ewYork,NY 10017Telephone: 212.850.2839Facsimile: 212.850.2929Email: [email protected] .KlineAndrews KurthLLP1350 IStreet,N W ,Suite 1100Washington,DC 20005Telephone: 202.662.2716Facsimile: 202.662.2739Email: [email protected], J.D., Ph.D.LawOfficesofLucilleA .Roussin301East 63rd StreetN ewYork,N ewYork 10065Telephone: 212.888.0468Facsimile: 212.888.0093Email: [email protected]

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C E R T I F I C A T E O F S E R V I C EI hereby certify that three copies of the foregoing were, this 4th day of

January, 2013, servedbyovernight delivery uponthefollowing:SethA .Presser,Esq.Jaspan Schlesinger Attorneysat LawTrial and Appellate Counsel for Executor-AppellantHannahK.Flamenbaum300Garden City PlazaGarden City,N ewYork 11530DavidT.Reilly,Esq.Reilly&Reilly,LLPTrial and Appellate Counsel for Objectant-RespondentIsrael Flamenbaum170 OldCountry Road, Suite308Mineola,N ewYork 11501RaymondJ.Dowd,Esq.Dunnington, Bartholow&MillerLLPCo-Appellate Counsel for Claimant- RespondentVorderasiatisches Museum1359Broadway; Suite600N ewYork,N ewYork 10018JohnC.Fisher,Esq.Hamburger, WeinschenkandFisher Attorneysat LawTrial and Co-Appellate Counsel for Claimant-Respondent Vorderasiatisches MuseumThe BarBuilding36West4thStreetN ewYork,N ewYork 10036

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Documents

In re Flamenbaum Brief of Amici Curiae