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Nothing To Weep About For Art Purchaser

April 11, 2012

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The New York State Court of Appeals recently decided a dispute over the ownership of a 1,100 pound sculpture entitled The Cry, by Jacques Lipchitz, between the executor of the owner's estate and the purchaser (who purchased the sculpture from a man claiming to have been gifted the sculpture from the owner in 1997). In July 2004, the executor of the estate claimed to have sold the sculpture to an art gallery, while the purchaser claimed to have purchased the sculpture from another man in September 2005. The executor and the purchaser each filed petitions asking the Surrogate’s Court to resolve the conflicting claims of ownership.
The Surrogate’s Court found in favor of the purchaser, noting that the decedent’s inter vivos gift of the sculpture was valid, and dismissed the executor’s petition. However, on appeal, the Appellate Division, First Department, reversed on the law, finding that the purchaser’s claim of ownership was barred by the statute of limitations because the sculpture was converted in 1998 when loaned to the French government.
In <a href=";hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr" target="_blank" rel="noopener">Mirivsh v. Mott</a>, the Court of Appeals reversed again and found that the Surrogate’s Court correctly ruled in the purchaser's favor because the purchaser established each of the elements of a valid inter vivos gift (intent, delivery and acceptance) by clear and convincing evidence, and, in any event, both parties had agreed by stipulation to allow the Surrogate’s Court would decide ownership of the sculpture on the merits. The court noted that the original owner’s intent to make a present transfer of "The Cry" was clear on the face of the gift instrument, which was in the form of a picture of the sculpture with a writing describing the piece and declaring that it was a gift (and did not necessarily require physical transfer or delivery of the sculpture itself).
Thanks to Joe Fusco for this post. If you have any questions or comments, please email Paul Clark at

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