Can the New York District Attorney Seize Art in Other States?

A New York State Supreme Court issued a seizure order for artwork from Austrian artist Egon Schiele titled Russian War Prisoner. see Matter of Art Inst. of Chicago, 85 Misc. 3d 1265(A), 2025 NY Slip Op 50617(U) (Sup. Ct., N.Y. County Apr. 23, 2025).  Even though the painting was no longer in New York and the Art institute took no action to receive or possess the painting in New York, the Court found that it has jurisdiction under CPL 20.20 because the crime of knowing possession of stolen property was the same in New York and Chicago and that there was a conspiracy to possess stolen property between the dealer that sold it in New York and the eventually the Art Institute of Chicago. Id. at 31, 32.

The Court’s approach has several problems. First, CPL 20.20 deals with jurisdiction over people and not property. The Art Institute points this out in their appeal brief to the First Department. see Pet’r’s Br. 21, Matter of Art Inst. of Chicago (2025-04496, U.S. July. 22, 2025). The Art Institute also points out that CPL 20.20(1)(a) refers to conduct that has occurred within the state to establish an element of the offense and that New York Courts have only allowed criminal jurisdiction over defendants for conspiracy who committed acts in further of the conspiracy in New York. Id. at 22. The Art Institute also referenced People ex rel. Simpson Co. v. Kempner, 208 N.Y. 16 (1913) which held that where property has been taken by a search warrant from the possession of a third person, and there is a controversy between the person from whom it is claimed that the property was stolen and the third person the dispute cannot be determined upon a criminal process. Id. at 25. The Art Institute also noted that the New York Attorney General has issued an advisory opinion that New York Penal Law Section 450.10 cannot be used to resolve contested claims of ownership in the absence of a criminal case. Id. see Pet’r’s Br. 27, Matter of Art Inst. of Chicago (2025-04496, U.S. July. 22, 2025). The Art Institute also correctly pointed out that one of the few court cases cited by the Judge in support of their decision to exercise jurisdiction was taken out of context. Id. More specifically, in the decision cited by the Judge, the Court explained in dicta that:

“Penal Law § 450.10 . . . provides a mechanism for returning allegedly stolen property to an owner prior to, or during the pendency of, a criminal proceeding, [and] requires proof of title before property in the custody of the People or the court can be returned. Thus, a civil-like proceeding would have to be commenced in this case to return the paintings to the rightful owners under either CPL 610.25 (2) or Penal Law § 450.10--regardless of the outcome of the People’s case.” see Id. at 29.

This clearly means a separate civil action is required to establish title before a court can take possession and return property, which did not happen in  Matter of Art Inst. of Chicago.

The New York City District Attorney's Office’s response to did not address many of these points. The DA’s Office’s answer consisted mostly of procedural arguments that the Art Institute waived their substantive positions. Resp’t’s Br. 10-18, Matter of Art Inst. of Chicago (2025-04496, U.S. October 31, 2025). The DA acknowledges Kempner, but argues it is distinguishable because it was about private parties, not the People, obtaining a search warrant based on later superseded procedural rules. Id. at 14. A warrant issued for property based on criminal has the same effect whether it was applied for by the district attorney or a person. The Kempner decision and the DA’s response do not explain why there would be a distinction between the two. The DA’s also acknowledges the Art Institute correctly quotes the New York Attorney General that New York Penal Law Section 450.10 cannot be used to resolve contested claims of ownership in the absence of a criminal case, but only notes that this opinion informal and addressed a warrantless seizure by police. Id. The DA fails to explain why New York Penal Law Section 450.10 would prevent the use of a warrantless seizure of property without criminal case but allow a seizure with a warrant. The statue does not say this at all.

The DA’s strangest argument was: “AIC cites no other controlling authority that clearly bars Justice Drysdale’s seizure of the painting and consequent holding of turnover proceedings.” Id. at 14. Is it really incumbent on individuals to prove the State does not have power to act? Doesn’t the State have the duty to show where they have the authority to act, before they act? The 10th Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 14th amendment states “nor shall any State deprive any person of life, liberty, or property, without due process of law”

One issue which was not addressed by the DA or the Art Institute was that the crime of knowing possession of stolen property was not the same in New York and Chicago. In New York, Criminal Possession of Stolen Property in the First Degree under PL § 165.54, occurs when someone “ knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars." In Illinois, a person is guilty of the crime of theft when they obtain “control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him or her to believe that the property was stolen” These are not the same thing. The Court’s decision mentions that when the painting was sold in New York, the provenance or the pre-war history of the painting was not discussed. Matter of Art Inst. of Chicago, 85 Misc. 3d 1265(A), 2025 NY Slip Op 50617(U) (Sup. Ct., N.Y. County Apr. 23, 2025) at 7. How could someone have knowingly possesses stolen property, if they were never informed that they were stolen? Furthermore, if the painting was never knowingly possessed as stolen in New York, there could not have been a conspiracy to knowingly posses it in Chicago.

Buying Government Art? Get all the Records.

Lights Across the Lake by Maxim H. Lubovsky

PHOTO CREDIT GSA\Sean Flanagan

In a recent art law decision from a New York district court, Philip Ellis Foster’s claim of ownership of Lights Across the Lake by Maxim H. Lubovsky over the federal government was rejected. see Philip Ellis Foster v. United States, No. 1:22-cv-04496 (JLR) (S.D.N.Y. Mar. 21, 2025) at 15. When Foster tried to sell the painting , it was taken by the GSA, which claimed it was still government property because it was commissioned by the WPA in 1938. Id. at *1. The Court gave a lengthy discussion on the law governing property of the Federal government. Id. at *10. The United States government can only relinquish property by explicit acts. Id. The Court referenced a few decisions that upheld the Federal government asserting its property rights after decades of inaction. For instance, in Int'l Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, the court held that the government retained title to a Navy torpedo bomber that someone had tried to salvage after it had crashed about fifty years earlier. Id. at *11. In United States v. Steinmetz, the Court held that a bell that was submerged for seventy years until a British diver recovered it was still the property of the United States. Id. at *11.

In Foster’s case, it was undisputed that the federal government owned the painting when it was made. Id. at *12. It was also undisputed that a federal agency authorized the sale of surplus materials after World War II was over. Id. However, the Court was not convinced that the completed and framed painting Foster bought qualified as “surplus material.” Id. The Court noted that surplus property was not sold to private purchasers without first being offered to other federal agencies and tax-supported entities. The Court credited an expert who testified he was not aware of any document memorializing a sale of any WPA artwork by the Government. Id. at *17. The Court discounted Foster’s reliance on various correspondence that implied finished paintings were surplus property and second-hand accounts that the WPA sold finished paintings. These accounts were given minimal weight because they were second-hand, lacked sufficient particularity, or lacked indicia of reliability to support a finding, by a preponderance of the evidence, that the Government undertook authorized sales of completed WPA paintings to members of the public. Id. at *21. The Court also declined to draw an adverse inference against the government regarding the lack of any written records for the disputed painting because there was no evidence that the records existed and were destroyed, or that the government had a specific duty to keep them decades after the painting was finished. Id. at *25–26.

Foster was certainly a sympathetic plaintiff. He made what he likely believed to be a legitimate purchase from a dealer who also likely believed they made a legitimate purchase when they acquired the painting. Sympathy was no match for the massive amount of precedent stating the government owns property until it explicitly says otherwise. I found it noteworthy how much weight the Court gave to the lack of evidence of a record of a sale of a painting nearly ninety years ago. It would seem to be a matter of common sense that not all sales were properly recorded in 1938. It is also likely that even some of the sales that were recorded were lost. While Foster may be able to get his money back from the dealer he bought the painting from, it will be increasingly difficult for every previous buyer to recover their investment due to the substantial amount of time that has passed since it left the government’s possession.

I was also surprised with how quickly the Court dismissed the notion of laches as a defense to the government’s claim on the painting. It was incorrect for the Court to quote United States v. California for the proposition that “the United States government cannot extinguish its property interests through negligence, laches, acquiescence, or a failure to act” (Id. at 25), without acknowledging that the Second Circuit (by which it is bound to follow) has held as recently as 2005 that laches can apply to claims of the federal government. See Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 278–79 (2d Cir. 2005). In Cayuga Indian Nation of N.Y., the Second Circuit explains that it follows the Seventh Circuit's reasoning in United States v. Admin. Enters., Inc., 46 F.3d 670 (7th Cir. 1995), which stated that laches can apply to the federal government in three situations: first, "that only the most egregious instances of laches can be used to abate a government suit"; second, "to confine the doctrine to suits against the government in which ... there is no statute of limitations"; and third, "to draw a line between government suits in which the government is seeking to enforce either on its own behalf or that of private parties what are in the nature of private rights, and government suits to enforce sovereign rights, and to allow laches as a defense in the former class of cases but not the latter." Id. at 278 (quoting Admin. Enters., 46 F.3d at 673). In Cayuga Indian Nation of N.Y., the Court found that laches applied to the federal government's claim because the delay represented an egregious instance, as the event that caused the suit happened 200 years ago. See Cayuga Indian Nation of N.Y., 413 F.3d at 279.

While the ownership of Foster’s painting arose from an incident less than 200 years ago, the government’s inaction still spanned an arguably egregious amount of time. Clearly, buyers and attorneys advising buyers need to be extremely cautious when considering purchasing artwork once owned by the government. The explicit act which caused the government to relinquish ownership must be clear and unambiguous. Otherwise, they risk losing their investment and can only hope for an equitable remedy.