Von Schuschnigg v. Sotheby's Inc.

216 A.D.2d 100, 628 N.Y.S.2d 100, 1995 N.Y. App. Div. LEXIS 6334

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1995
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered May 20, 1994, which, after a nonjury trial, determined that defendant Museum of Fine Arts is the owner of the painting by Jean Bernard Re-stout entitled "Portrait of a Young Lady With a Guitar”, unanimously affirmed, without costs.

Defendant Museum of Fine Arts, the proponent of the gift, established by clear and convincing evidence that in 1958 a since-deceased donor gave it a valid inter vivos gift of a remainder interest in the painting in issue, i.e., immediate transfer of title to the Museum with possession retained by the donor for life. The essential elements of intent to make a present transfer, delivery of the gift (in this case constructive or symbolic) and acceptance by the donee (Gruen v Gruen, 68 NY2d 48), were satisfied by evidence that the donor wrote to the Museum expressing a desire to donate the painting after his death while retaining its use during his lifetime; that the Museum advised the donor to confirm his gift by furnishing a photograph of the painting; that the donor complied; and that the Museum gratefully acknowledged completion of the gift. The availability of a tax deduction in 1958 for this type of donation provided strong corroboration of intent, notwithstanding the absence of proof that the donor actually took the deduction, and the donor’s erroneous inclusion of the painting in a list of chattels to be transferred in a 1972 divorce settlement had little bearing on his donative intent in 1958.

We have considered plaintiff’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Asch, Nardelli and Williams, JJ.