DECISION & ORDER
SHIRLEY WERNER KORNREICH, Judge.
Motion sequence numbers 001 and 002 are consolidated for disposition.
Petitioner David Toren moves by order to show cause, pursuant to CPLR 3102(c), for pre-action disclosure from respondent Villa Grisebach Auctions, Inc. (Villa) of the identities of the purchasers of two works of art auctioned by Villa's German parent company, non-party Grisebach GmbH (Grisebach). Seq. 001. Villa opposes the motion and also moves by order to show cause to dismiss the petition. Seq. 002. For the reasons that follow, Villa's motion is granted, and the petition is denied without prejudice and with leave to amend in accordance with this decision.
This case concerns two works of art — Basket Weavers a painting by Max Liebermann; and Nach Hause, a painting by Franz Skarbina (collectively, the Art) — that were stolen by the Nazis from Toren's great uncle, David Friedmann, during the Holocaust. The art was later auctioned by Grisebach. Nach Hause was sold in 1995, and Basket Weavers was sold in 2000. Grisebach, a German corporation, and its New York subsidiary corporation, Villa, know the identity of the purchasers. Toren does not.
The petition tells the story of how Friedmann's art was stolen, which is set against the horrifying backdrop of the Holocaust. It contains extensive detail of how art stolen by the Nazis came to be auctioned half a century later by Grisebach. In addition to the tragedy that befell Toren's family, and the extraordinary story of how Toren escaped the Holocaust on a "kinder transport" and eventually emigrated to the United States, the petition also recounts the efforts of the "Monuments Men", who sought to recover art stolen by the Nazis during World War II.
The court will not repeat the compelling history recited in the petition, and limits its discussion to facts pertinent to this decision. The Petition explains:
Petition ¶¶ 2-4 (paragraph breaks and numbering omitted). Toren claims that, "[a]t the time of the sale of Basket Weavers, Grisebach knew, among other things, that the painting had been owned by Hildebrand Gurlitt, the infamous Nazi art dealer, and was being sold on behalf of his daughter. Despite this, Grisebach conducted no further investigation into the true owner of the painting." Petition ¶ 4.
On July 20, 2016, Toren commenced this action, filed the petition, and moved by order to show cause to compel the requested disclosure.
CPLR 3102(c) provides that "[b]efore an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order." It is well settled that pre-action discovery under CPLR 3102(c) may be obtained to "identify potential defendants." Uddin v N. Y. City Transit Auth., 27 A.D.3d 265, 266 (1st Dept 2006). However, pre-action discovery "may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing." Id. Consequently, "[a] petition for pre-action discovery should only be granted
As an initial matter, the court rejects all of Villa's procedural arguments, including Toren's alleged lack of standing.
New York law, however, does not apply. A claim to recover property is generally governed by the law of the jurisdiction in which the property is located. See Garrison Special Opportunities Fund LP v Fidelity Nat'l Card Servs., Inc., 130 A.D.3d 546, 548 (1st Dept 2015); Wertheimer v Cirker's Hayes Storage Warehouse, Inc., 2001 WL 1657237, at *5 (Sup Ct, NY County 2001) (DeGrasse, J.) (New York's choice of law rules provide that questions relating to the validity of a transfer of personal property are governed by the law of the state where the property is located at the time of the transfer. This comports with the Restatement's view and the majority of jurisdictions in the United States.") (internal citations omitted), aff'd on other grounds, 300 A.D.2d 117 (1st Dept 2002). This rule is consistent with how New York courts make choice of law determinations. See Cooney v Osgood Machinery, Inc., 81 N.Y.2d 66, 77 (1993); K.T. v Dash, 37 A.D.3d 107, 111 (1st Dept 2006). While Toren's plight is highly sympathetic, New York, as a jurisdiction, simply has no nexus to or interest in his claims. New York law should not be applied where, as here, the prospective defendants "could hardly have expected to be [hailed] before a New York court." Id. at 77. Neither the auction house nor the purchasers could have been expected to be subject to New York law merely because one of Friedmann's heirs of happens to now live in New York (which they could not have known at the time of purchase, especially if they did not know the identity of the person, Friedmann, from whom the art was stolen).
The location of Nach Hause and the applicable law are not known.
ORDERED that the motion by petitioner David Toren for pre-action discovery is denied, the motion by respondent Villa Grisebach Auctions, Inc. to dismiss the petition is granted, and the petition is dismissed without prejudice and with leave to file an amended petition for disclosure of the identity of the purchaser of Nach Hause within 45 days of the entry of this order on NYSCEF; and it further
ORDERED that within 7 days of the entry of this order on NYSCEF, Villa Grisebach Auctions, Inc. shall disclose to David Toren all information in its possession custardy and control regarding the jurisdiction in which Nach Hause is located.
Swain v Brown, 135 A.D.3d 629, 631 (1st Dept 2016) (emphasis added; internal citations and quotation marks omitted). It should be noted that since the Nazis, and not the purchasers, converted the Art from Friedmann, the accrual from demand rule would apply. It also should be noted that Villa's laches defense is uncompelling due to its failure to explain how Toren was supposed to discover the location of the Art when the rest of the world, including the German government, could not do so.