Courthouse News 15 October 2010
By Annie Youderian
(CN) - Boston's Museum of Fine Arts can keep a valuable oil painting allegedly sold under Nazi duress during World War II, the 1st Circuit ruled, saying the sole heir to a Jewish art collector waited too long to claim it.
The federal appeals court ruled Claudia Seger-Thomschitz, sole heir to the Austrian-Jewish art collector Oskar Reichel, should have asserted her claim to "Two Nudes (Lovers)" by Austrian expressionist Oskar Kokoschka well before 2008.
Seger-Thomschitz claimed she was the rightful owner of the painting, because Dr. Reichel had been forced to sell it after Austria was annexed by Nazi Germany in 1938.
The museum argued that the original transaction was valid, and that Seger-Thomschitz's claim to the painting is barred by the three-year statute of limitations in Massachusetts.
Dr. Reichel allegedly transferred "Two Nudes (Lovers)" and four other Kokoschka works to another Jewish gallery owner named Otto Kallir. Kallir paid $250 for the paintings, sending the money to Dr. Reichel's son, Hans, who had emigrated to the United States.
Hans forwarded half the money to his brother, Raimund.
During the war, Dr. Reichel and his wife, Malvine, were forced to close their business and give up their family home and another property. Their oldest son was deported to Poland, where he was killed, and Malvine was sent to the Theresienstadt concentration camp in 1943. Dr. Reichel died of natural causes that same year.
Kallir ended up in New York, where he sold "Two Nudes (Lovers)" to the Nierendorf Gallery for $1,500 in 1945. The painting traded hands two more times before it was bequeathed to the museum in 1973.
Raimund Reichel's will named Seger-Thomschitz his sole heir, though the two were not blood relatives.
When she learned that a museum in Vienna had some Nazi-confiscated art that once belonged to Dr. Reichel, she hired an attorney to help her recover any paintings that may have been looted by Nazis, including the Kokoschka painting.
After researching the painting's history for a year and a half, the Museum of Fine Arts in Boston concluded that Dr. Reichel's transfer of the painting to Kallir was valid.
The museum filed an action in Federal Court, seeking a declaration that it could keep the painting.
Seger-Thomschitz countersued for conversion of property and other state-law torts.
The 1st Circuit upheld a federal judge's ruling that the counterclaims are barred by Massachusetts' three-year statute of limitations.
Judge Kermit Lipez said information about the painting, including Dr. Reichel's prior ownership, were available in several sources: "on the [museum's] website, in the Getty Provenance Index, in several catalogues raisonnés of Kokoschka's works, and in a book published in Vienna in 2003 that 'included a picture of the Painting, traced its provenance from Reichel to the [museum], included a description of Reichel's April 1938 property declaration listing the Painting, and described the sale of the work to Kallir and its subsequent exhibition in the United States at the Galerie St. Etienne."
Reichel's property declaration has been accessible to the public since 1998, according to the ruling.
"Although the availability of some of these sources may not have been obvious to Seger-Thomschitz, who is a nurse with no specialized training in Nazi-era art claims, that fact does not excuse her delay," Lipez wrote. "It was her burden under Massachusetts law to discover from the relevant professional communities whether she had a cognizable legal claim."http://www.courthousenews.com/2010/10/15/31118.htm