Yesterday afternoon, a lawsuit was filed in the New York State Supreme Court for the seizure and return of four artworks with an aggregate value of $1.66 million:  Raoul Dufy, Le Quintette; Lucien Genin, Street Scene; Albert Marquet, Au bord de la mer; and purportedly the most valuable of the lot, Alexej von Jawlensky, Blumenstillleben (Still Life with Flowers) (collectively, the “Works”).  In addition to bringing a civil replevin claim seeking recovery of the Works, the plaintiff has requested a Court order authorizing a sheriff to seize the Works from the defendant.  As this lawsuit progresses further, it may present a useful opportunity to observe the application in the art-law context of a New York statute governing such seizure orders.   

William P. Stewart, Jr., is the “sole Manager” of the plaintiff in the lawsuit, the Stewart Family LLC (the “LLC”), and the defendant, Barbara Stewart, is Mr. Stewart’s ex-wife.  The pair divorced in what the Complaint describes as “a particularly contentious divorce proceeding,” which commenced in 2007 and concluded more than five years later.  Now, the LLC seeks to recover the Works, which are in Mrs. Stewart’s possession at her Manhattan apartment.

The Complaint alleges that the Works were originally acquired in 1987 by four trusts.  Mr. Stewart is the trusts’ trustee, and his four adult children with Mrs. Stewart are each beneficiaries of the respective trusts.  Under a May 2003 agreement, the paintings were purportedly “conveyed and transferred” to the LLC; at that time, the LLC was owned in equal, undivided shares by each of the four trusts.  Although the Works are located at Mrs. Stewart’s apartment, the LLC says she never had any legal right, title or interest in or to them.
Now, “for financial reasons,” the LLC seeks to recover and sell the Works.  Mrs. Stewart, however, has “for the last few years” refused to allow Mr. Stewart or the LLC’s employees to access her apartment.  By a June 19, 2018, email, Mr. Stewart allegedly demanded the von Jawlensky work back from Mrs. Stewart, who refused.  Accordingly, the LLC filed the lawsuit against Mrs. Stewart yesterday, seeking the recovery of all four Works from Mrs. Stewart.

The LLC’s Complaint asserts a cause of action for replevin.  To prevail on this claim, the LLC must prove that its right to possess the Works is superior to Mrs. Stewart’s.  But the Complaint also goes beyond this garden-variety civil replevin claim; the LLC has also asserted a second cause of action against Mrs. Stewart seeking “the issuance of an Order of Seizure, directing the seizure by the Sheriff of the [Works] pursuant to CPLR Article 71.”  To pursue this option, the LLC will need to jump through additional legal hoops; for example, before the Court can issue a seizure order, the LLC will need to bring a formal motion, showing it is likely to succeed on the merits of its replevin claim, supported by an affidavit that contains specified information, including whether the LLC seeks a provision in the seizure order authorizing the sheriff to “break open, enter and search” for the Works.  See N.Y. CPLR § 7102.  And the LLC must provide an “undertaking,” i.e., a bond, in an amount equal to at least twice the Works’ value (here, that’s over $3 million), to secure Mrs. Stewart for any damages and expenses she may suffer if the LLC’s seizure order is mistakenly granted.   

If the LLC succeeds in its motion, it can then deliver specified documents to the sheriff, who would then promptly seize the Works from Mrs. Stewart.  This isn’t the end of the matter; to retain permanent possession of the Works, the LLC would still need to prevail on its underlying replevin claim, or else the Works will be returned to Mrs. Stewart.  (Conversely, if the Court denies the LLC’s motion for a seizure order, the LLC can still ultimately prevail on its underlying replevin claim and eventually secure the recovery of the Works.)

In many cases involving a dispute over title to or possession of an artwork, the work stays where it is while the case is pending.  (Indeed, parties sometimes agree, or ask the court to order, that the work should remain in a specified location and not be sold or moved until the dispute is resolved.)  But here, the plaintiff LLC is actually seeking to enlist law enforcement to physically take the Works away from the defendant, even before a final ruling on the merits of the case.  This type of seizure is not unheard of in the art context, but this case calls attention to a statutory tool that can, when used successfully, enable a plaintiff to take a more aggressive approach and obtain possession of property sooner than might otherwise be possible if the plaintiff needs to wait for a final decision by a court.  We’ll continue to monitor this lawsuit as it progresses further, including to observe whether the LLC actually does file a motion for a seizure order.