Yale Univ et al v. Konowaloff

Filing 160

ORDER: The Motion for Summary Judgment on Counterclaims by Counterclaim Defendant Yale University (Doc. Nos. 78 and 134 ) is hereby GRANTED. The Clerk shall enter judgment in favor of counterclaim defendant Yale University on all of the counterclaims of Pierre Konowaloff. It is so ordered. Signed by Judge Alvin W. Thompson on 3/20/2014. (Wang, M.)

United States District Court
District of Connecticut
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YALE UNIVERSITY,
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Plaintiff,
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and
:
:
THE NIGHT CAFÉ, a PAINTING
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Plaintiff-in-rem,
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:
v.
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PIERRE KONOWALOFF,
:
Defendant,
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:
v.
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YALE UNIVERSITY,
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Counterclaim-defendant,
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and
:
:
THE NIGHT CAFÉ, a PAINTING
:
Counterclaim-defendant-in-rem.:
:
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CIVIL NO. 3:09CV466(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIMS
Pierre Konowaloff (“Konowaloff”) has brought counterclaims
seeking injunctive and declaratory relief as well as replevin
of, or money damages for the possession and retention by Yale
University (“Yale”) of, Vincent van Gogh‟s The Night Café (the
“Painting”), which the Russian government expropriated in 1918
from Russian industrialist Ivan A. Morozov (“Morozov”),
Konowaloff‟s great-grandfather. Yale has moved for summary
judgment on Konowaloff‟s counterclaims. For the reasons set
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forth below, Yale‟s motion for summary judgment is being
granted.
I. Factual Background
The Night Café is a masterpiece painted by Vincent van Gogh
in 1888 and is one of the world‟s most renowned paintings. In
1918, Morozov possessed the Painting, which he kept in his home
in Moscow along with a large collection of other artworks by
Russian and European artists.
In 1917, the Bolshevik faction of the Russian Social
Democratic Workers party, led by Vladimir Lenin, seized power
and declared itself the new socialist government of Russia; it
would later be known as the Russian Soviet Federated Socialist
Republic (“RSFSR”). Although the United States of America broke
off formal diplomatic relations almost as soon as the new
socialist government came into power, the United States, like
other sovereigns, recognized the RSFSR as the de facto
government of Russia. On March 3, 1918, in the exercise of its
sovereignty, the RSFSR signed the Peace Treaty of Brest-Litovsk,
formally withdrawing from World War I, and establishing peace
between Russia and Germany and Germany‟s allies. In 1922, the
RSFSR joined with three other republics to form the Union of
Soviet Socialist Republics (“USSR” or “Soviet Union”). On
November 17, 1933, through the signing of the Roosevelt-Litvinov
Agreements, the United States formally recognized the Soviet
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Union as Russia‟s government. Today, the United States also
recognizes the Russian Federation.
Immediately after seizing power in 1917, the new socialist
government had issued a decree abolishing private property and
declaring confiscated property to belong to the “whole people,”
that is, the Soviet state. In December 1918, the RSFSR, by
decree from the Council of People‟s Commissars, declared the art
collection of three Russian citizens, Ivan A. Morozov, I.C.
Ostruokhov, and V.I. Morozov, to be state property. The Soviet
Union displayed The Night Café in the Museum of Modern Art in
Moscow from 1928 until 1933, when it was sold abroad. Later that
year, Stephen Clark (“Clark”) acquired the Painting. Konowaloff
disputes that the Painting was sold; he asserts that it was
delivered to the Matthiesen Gallery by the Soviet trade
delegation in Berlin for shipment to Knoedler & Company, an art
gallery in New York, which transferred the Painting to Clark.
Konowaloff contends that the sales of art by the Soviet
government via the Bolshevik Center, a criminal network, to
wealthy westerners such as Clark were cloaked in secrecy and
employed an intricate laundering operation.
After Clark acquired the Painting, he loaned it to museums
and galleries in the United States for public display until his
death in 1960. In his will, Clark left numerous works of art,
including The Night Café, to Yale. In June 1961, Yale received
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the works of art from Clark‟s estate and formally accessioned
the Painting into the Yale University Art Gallery‟s permanent
collection.
In 2002, Konowaloff became the official heir to the estate
of his great-grandfather. He later learned that Morozov had
owned the Painting and that the Painting had been sold to Clark
in the 1930s and subsequently bequeathed to Yale. In March 2008,
Konowaloff, through his wife, wrote to Yale inquiring about
Yale‟s ownership of the Painting. Yale filed the instant action
to quiet title and for declaratory and injunctive relief against
Konowaloff. Konowaloff filed counterclaims seeking injunctive
and declaratory relief, as well as replevin of, or money damages
for the possession and retention by Yale of, the Painting.
II. Legal Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219,
1223 (2d Cir. 1994). Rule 56(a) “mandates the entry of summary
judgment . . . against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party‟s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322. When ruling on a
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motion for summary judgment, the court may not try issues of
fact, but must leave those issues to the jury. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Donahue v. Windsor Locks Bd. of Fire Comm‟rs, 834 F.2d 54, 58
(2d Cir. 1987). Thus, the trial court‟s task is “carefully
limited to discerning whether there are any genuine issues of
material fact to be tried, not to deciding them. Its duty, in
short, is confined . . . to issue-finding; it does not extend to
issue-resolution.” Gallo, 22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson, 477 U.S. at
247. An issue is “genuine . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Id., 477 U.S. at 248 (internal quotation marks omitted). A
material fact is one that would “affect the outcome of the suit
under the governing law.” Id. Only those facts that must be
decided in order to resolve a claim or defense will prevent
summary judgment from being granted. Immaterial or minor facts
will not prevent summary judgment. See Howard v. Gleason Corp.,
901 F.2d 1154, 1159 (2d Cir. 1990).

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When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
However, the inferences drawn in favor of the nonmovant must be
supported by evidence. “[M]ere speculation and conjecture is
insufficient to defeat a motion for summary judgment.” Stern v.
Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997)
(quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d
118, 121 (2d Cir. 1990)). Moreover, the “mere existence of a
scintilla of evidence in support of the [nonmovant‟s] position
will be insufficient; there must be evidence on which a jury
could reasonably find for the [nonmovant].” Anderson, 477 U.S.
at 252.
III. Discussion
Yale argues that summary judgment should be granted in its
favor on Konowaloff‟s counterclaims based on the act of state
doctrine. The court agrees.
“The act of state doctrine . . . arises out of the basic
relationships between branches of government in a system of
separation of powers. It concerns the competency of dissimilar
institutions to make and implement particular kinds of decisions
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in the area of international relations.” Banco Nacional de Cuba
v. Sabbatino, 376 U.S. 398, 423 (1963). As formulated in
decisions of the Supreme Court, the doctrine “expresses the
strong sense of the Judicial Branch that its engagement in the
task of passing on the validity of foreign acts of state may
hinder rather than further this country‟s pursuit of goals both
for itself and for the community of nations as a whole in the
international sphere.” Id.
Under the act of state doctrine, the courts of the
United States, whether state or federal, will not
examine the validity of a taking of property within
its own territory by a foreign sovereign government,
extant and recognized by this country at the time of
suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles....
Konowaloff v. Metro. Museum of Art, 702 F.3d 140, 145 (2d Cir.
2012) (quoting Sabbatino, 376 U.S. at 428) (emphasis in
Konowaloff). “[T]he validity of the foreign state‟s act may not
be examined” even when there is a claim that the taking of
property was in violation of “customary international law” or
“the foreign state‟s own laws.” Konowaloff, 702 F.3d at 145-46.
Moreover, in Oetjen v. Central Leather Co., the Court held that:
[W]hen a government which originates in revolution or
revolt is recognized by the political department of
our government as the de jure government of the
country in which it is established, such recognition
is retroactive in effect and validates all the actions
and conduct of the government so recognized from the
commencement of its existence.

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Konowaloff, 702 F.3d at 146 (quoting Oetjen, 246 U.S. 297, 30203 (1918)) (emphasis in Konowaloff). “The Supreme Court has
repeatedly applied this principle to cases involving
nationalizations ordered during the Russian Revolution—
appropriating the property and assets of various Russian
corporations—notwithstanding the fact that formal recognition of
the Soviet government by the United Sates occurred years after
the decrees themselves.” Konowaloff, 702 F.3d at 146 (citing
United States v. Pink, 315 U.S. 203, 230-33 (1942); United
States v. Belmont, 301 U.S. 324, 326, 330 (1937)).
All of Konowaloff‟s counterclaims arise from his claim to
ownership of the Painting. (See Amend. Countercl., Doc. No. 35,
¶ 1 (“This is an action for a declaration of title as residing
in Pierre Konowaloff as the heir to The Night Café . . . .”).)
To prevail on any of his counterclaims, Konowaloff must prove
that he either has title or a superior possessory right to the
Painting. See Falker v. Samperi, 190 Conn. 412, 420 (1983)
(conversion claimant must prove ownership); Fiorenti v. Cent.
Emergency Physicians, PLLC, 762 N.Y.S.2d 402, 403 (App. Div.
2003) (conversion claimant must prove ownership or superior
right of possession); Velsmid v. Nelson, 175 Conn. 221, 229
(1978) (adjudication of title depends on the strength of
plaintiff‟s own title); M. Itzkowitz & Sons, Inc. v. Santorelli,
128 Conn. 195, 198 (1941) (“The plaintiff in replevin must
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prevail by the strength of his title rather than by the weakness
of the defendant‟s.”); Nissan Motor Acceptance Corp. v. Scialpi,
944 N.Y.S.2d 160, 162 (App. Div. 2012) (“A cause of action
sounding in replevin must establish that the defendant is in
possession of certain property of which the plaintiff claims to
have a superior right.”); Discover Leasing, Inc. v. Murphy, 33
Conn. App. 303, 309 (1993) (conversion and statutory theft
require proof that property “belonged to” plaintiff). Thus,
Konowaloff‟s ownership of or superior possessory right to the
Painting is “an essential element of [his] case with respect to
which [he] has the burden of proof at trial.” Celotex Corp., 477
U.S. at 323. However, there is no genuine issue as to the fact
that “The Night Café was taken by the new Soviet government of
Russia by order of Lenin and Sovnarkom (the Council of People‟s
Commissars) in December 1918,” as part of the movement to
nationalize private property. (Def. and Countercl. Pl. Pierre
Konowaloff‟s Local Rule 56(a)(2) Statement, Doc. No. 80-1, ¶ 8.)
For the court to determine whether Konowaloff has proven this
“essential element” would necessarily require the court to make
an inquiry into the legal validity of the 1918 nationalization
decree. However, such inquiry is precluded by the act of state
doctrine.
Konowaloff is directly on point. That action involved the
possession and retention by the Metropolitan Museum of Art (the
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“Met”) of a Cézanne painting entitled Madame Cézanne in the
Conservatory, which the RSFSR expropriated from Morozov under
the same decree and at the same time it expropriated The Night
Café. The court held:
As Konowaloff has no right to or interest in the
Painting other than as an heir of Morozov, and Morozov
did not own the Painting after the 1918 Soviet
appropriation, Konowaloff has no standing to complain
of any sale or other treatment of the Painting after
1918, or to seek monetary or injunctive relief, or to
seek a declaratory judgment with respect to the
[Met‟s] right or title to the Painting.
Konowaloff, 702 F.3d at 147 (internal citation omitted).
The counterclaim plaintiff contends that Konowaloff is not
on point because unlike Konowaloff, “[t]his case . . . has
progressed beyond the pleading to the discovery stage and Yale‟s
motion is for summary judgment[,]” and “[a]ccordingly, the
applicability of the act of state doctrine necessarily involves
factual questions requiring the taking of evidence, first and
foremost the position of the Russian Federation regarding the
irrelevance of the adjudication of the rights of the parties in
this litigation to amicable relations between the United States
and the Russian Federation.” (Pierre Konowaloff‟s Opp‟n to Yale
Unversity‟s Renewed Mot. for Summ. J., Doc. No. 141, at 2.)
However, in Konowaloff, the court noted that “the successor to
the U.S.S.R. has not renounced the 1918 appropriations,” 702
F.3d at 147, and the counterclaim plaintiff has not produced any

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evidence that the successor to the U.S.S.R. has done so
subsequent to the date of the opinion in Konowaloff even though
he was given additional time by the court in which to obtain
such evidence.
Konowaloff also contends that summary judgment cannot be
granted in light of the results of the investigation by Alexei
Alekseevich Melnikov, who submitted an affidavit (see Aff. of
Phillip Brown, Doc. No. 150, Ex. A) concerning his examination
of the findings of the Russian Federation National Archives
relative to its investigation of the sale of the Painting in
1933. However, this evidence merely reflects that a factual
dispute may exist as to the historical circumstances surrounding
the sale of the Painting by the Soviet government. (See id., at
2 (“I . . . received [the Russian archival entities‟] official
responses to the effect that their respective archives do not
contain any documents directly or indirectly related to the sale
of Van Gogh‟s The Night Café painting.”); Aff. of Alexei
Alekseevich Melnikov, Doc. No. 148, ¶ 4 (“When considering the
mechanics of such an examination, one must take into account
that over 80 years have passed and it could be quite complicated
to find, locate and get access to relevant documents, many of
which may still be privileged and classified.”).) Thus,
Konowaloff‟s contention does not address whether there is a
genuine issue of material fact because the act of state that
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matters for purposes of whether Konowaloff can prove he has
title or a superior possessory right to the Painting is the 1918
appropriation by the Soviet government, not the 1933 sale. This
point was also addressed in Konowaloff. See 702 F.3d at 147
(“The relevant act of state revealed by the Amended Complaint
occurred in 1918 when the Soviet government appropriated the
Painting. Upon the appropriation, as the Amended Complaint
alleged, „Morozov was deprived of all his property rights and
interests in the Painting . . . .‟”) (citation omitted).
Because “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment,” Anderson, 477 U.S. at
247, and the court finds that the act of state doctrine applies
to bar Konowaloff‟s counterclaims, the motion for summary
judgment is being granted.
IV. Conclusion
Accordingly, the Motion for Summary Judgment on
Counterclaims by Counterclaim Defendant Yale University (Doc.
Nos. 78 and 134) is hereby GRANTED. The Clerk shall enter
judgment in favor of counterclaim defendant Yale University on
all of the counterclaims of Pierre Konowaloff.
It is so ordered.
Signed this 20th day of March 2014 at Hartford,
Connecticut.
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________/s/_________________
Alvin W. Thompson
United States District Judge

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