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HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT).

The First Department determined the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) controlled an action in New York making a claim to a painting that was confiscated during the German occupation of France in 1944. Under HEAR the action was timely commenced:

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HEAR supplants the statute of limitations provisions otherwise applicable to civil claims such as these (see Pub L 114-308, § 5[a]). Under HEAR, the applicable statute of limitations is six years from the date of “actual discovery” of “the identity and location of the artwork” and “a possessory interest of the claimant in the artwork” (id.). We reject defendants’ argument that HEAR can be displaced by a choice-of-law analysis.

 

Under section 5(c) of HEAR, for purposes of starting the running of the six-year statute of limitations provided by section 5(a), a preexisting claim covered by HEAR is “deemed to have been actually discovered on the date of enactment of [HEAR].” However, section 5(c) is made subject to the exception provided in section 5(e), which, as here relevant, provides that HEAR does not save a preexisting claim that was “barred on the day before the date of enactment of [HEAR] by a Federal or State statute of limitations” where “not less than 6 years have passed from the date [the] claimant . . . acquired such knowledge and during which time the civil claim or cause of action was not barred by a Federal or State statute of limitations.” Accordingly, to establish that HEAR does not save the subject claim, defendants were required to show that [plaintiff] discovered the claim on or before December 15, 2010 (six years before the day before the date of HEAR’s enactment). This they have failed to do. Maestracci v Helly Nahmad Gallery, Inc., 2017 NY Slip Op 07676, First Dept 11-2-17

CIVIL PROCEDURE (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/HOLOCAUST EXPROPRIATED ART RECOVERY ACT (STATUTE OF LIMITATIONS, HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/STATUTE OF LIMITATIONS  (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/PAINTINGS (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))

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THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).
PLAINTIFF LANDLORD WAS NOT ABLE TO SHOW THE FULLY EXECUTED LEASE WAS EVER DELIVERED TO DEFENDANT TENANT; THEREFORE THE LANDLORD WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED UPON THE TERMS OF THE LEASE (FIRST DEPT). ​
THE JUDGE DID NOT READ THE JURY NOTE IN ITS ENTIRETY TO THE PARTIES AND THE JUDGE’S PARAPHRASE OF THE CONTENTS OMITTED SIGNIFICANT ASPECTS OF IT; THE FACT THAT THE JURY ANNOUNCED IT HAD REACHED A VERDICT BEFORE THE NOTE WAS CALLED TO THE PARTIES’ ATTENTION DID NOT MATTER; THE MODE OF PROCEEDINGS ERROR REQUIRED REVERSAL (FIRST DEPT).
CONTINUOUS TREATMENT DOCTRINE NOT AFFECTED BY A YEAR AND THREE MONTH GAP IN TREATMENT, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION (FIRST DEPT).
Plaintiff’s Use of a Partially Open A-Frame Ladder Did Not Constitute Misuse of a Safety Device—Directed Verdict in Favor of Plaintiff on Labor Law 240(1) Cause of Action Was Proper/Plaintiff’s Apparent Failure to Turn Over All of the Relevant Medical Records Required a New Trial on Damages
THE TRIAL EVIDENCE DID NOT SUPPORT THE PLAINTIFF’S EXPERT’S TESTIMONY THAT DEFECTS IN THE HANDRAIL OR THE STAIR RISER HEIGHTS CONSTITUTED THE PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS STAIRWAY SLIP AND FALL CASE, THE OVER $500,000 PLAINTIFF’S VERDICT WAS VACATED AND A NEW TRIAL ORDERED (FIRST DEPT).
PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.

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HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS... CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A...