New York Law Review

In re Grand Jury Subpoena Duces Tecum Served on the Museum of Modern Art, 93 N.Y.2d 729 (1999): Exemption from Seizure for Nonresident Art Lenders

Published by

The New York Law Review

in

93 N.Y.2d 729 (1999)

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New York Arts and Cultural Affairs Law § 12.03 protects artwork on loan to New York museums from any form of seizure, including a grand jury subpoena, to promote cultural exchange and protect art institutions.

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Summary

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The Museum of Modern Art (MoMA) received a grand jury subpoena for two paintings on loan from the Leopold Foundation in Vienna, as part of an investigation into whether the paintings were stolen by Nazis during World War II. MoMA moved to quash the subpoena, citing New York Arts and Cultural Affairs Law § 12.03, which exempts artwork on loan from nonresident lenders from seizure. The New York Court of Appeals held that the statute applied to both civil and criminal processes, and that the subpoena constituted a seizure because it interfered with the lender’s possessory interest by preventing the return of the paintings. The court emphasized the importance of protecting cultural exchanges and ensuring that New York remains a welcoming venue for international art loans.

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Facts

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In 1997, the Leopold Foundation loaned over 150 works by Egon Schiele to MoMA for an exhibition.r
Among the loaned paintings were “Portrait of Wally” and “Dead City III.”r
Claims arose that these paintings were stolen from their rightful owners by Nazi agents during the German annexation of Austria.r
Heirs of the original owners contacted MoMA, demanding the paintings’ return.r
MoMA refused, citing a contractual obligation to return the collection to the Leopold Foundation.

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Procedural History

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The New York County District Attorney served MoMA with a grand jury subpoena duces tecum for the two paintings.r
MoMA moved to quash the subpoena based on New York Arts and Cultural Affairs Law § 12.03.r
Supreme Court granted MoMA’s motion.r
The Appellate Division reversed, holding that the statute applied only to civil disputes.r
The New York Court of Appeals granted leave to appeal and reversed the Appellate Division, granting MoMA’s motion to quash.

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Issue(s)

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Whether Arts and Cultural Affairs Law § 12.03, which protects artwork of nonresident lenders from

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