Affirmed by unpublished opinion per Sweeney, J., concurred in by Korsmo, A.C.J., and Brown, J.
SWEENEY, J.
State food benefits are calculated, in part, by using a recipient's gross income. WAC 388-450-0005(1), 388-492-0070(1). Gross income excludes medical reimbursements. 7 C.F.R. § 273.9(c)(5)(i)(C); 7 U.S.C. § 2014(d)(5); WAC 388-450-0015(1)(1). But it includes a recipient's unearned income, including cash assistance like laundry benefits. WAC 388-450-0025(2), 388-473-0010(5). We agree with the administrative law judge (ALJ) that the appellant's exceptional laundry benefit of $136 per month was granted pursuant to WAC 388-440-0001 as cash assistance and not a medical reimbursement and that it, therefore, was properly included when calculating her food benefit. We, then, affirm the ALJ's order.
FACTS
Marilyn Forrest receives medical and food benefits from the Department of Social and Health Services (DSHS). She receives the food benefits under the Washington State Combined Application Program. She also began receiving a maximum benefit of $11.13 per month for laundry expenses in December 2005 pursuant to WAC 388-478-0050(2) (payment standards) and 388-473-0060 (laundry as an ongoing additional requirement).
Ms. Forrest sweats excessively. Her condition apparently requires that she change her clothing and bedding frequently, so frequently that she spends an average of $131 a month to wash and dry about two loads of laundry a day.
In May 2008, Ms. Forrest asked DSHS to increase her laundry benefit to $131 pursuant to WAC 388-501-0160. That regulation allows DSHS to make an exception to the rule that it will not pay for noncovered health care services. WAC 388-501-0160. Ms. Forrest claimed that her laundry expenses are for health care services because they arise from an undiagnosed medical condition and are necessary to maintain a sanitary living environment.
On July 30, 2008, DSHS informed Ms. Forrest that "an exception to rule has been approved to provide additional funds to you for laundry expenses." Administrative Record (AR) at 103. And, it increased Ms. Forrest's cash assistance benefit to $136 per month. That increase in cash assistance caused her food assistance benefit to decrease from $61 per month to $10 per month.
Ms. Forrest contested the decrease in her food benefit at an administrative hearing. She argued that the increase in her laundry benefit should not have affected her food benefit because the former benefit is medical reimbursement under WAC 388-501-0160 for laundry expenses arising from her medical condition and because medical reimbursements are excluded from income when calculating food benefits. The ALJ, however, affirmed the reduction of Ms. Forrest's food benefit. He concluded that DSHS granted Ms. Forrest's request for an increased laundry benefit under WAC 388-440-0001, a general regulation that authorizes DSHS to grant an exception to a rule in the WAC. He further concluded that the laundry benefit was cash assistance and, therefore, properly included as unearned income when DSHS calculated Ms. Forrest's food benefit. The superior court affirmed the ALJ's decision.
DISCUSSION
Standard of Review
The Administrative Procedure Act governs our standard of review. RCW 34.05.570. We will reverse the ALJ's decision if it is not supported by substantial evidence or if the ALJ "erroneously interpreted or applied the law." RCW 34.05.570(3)(d), (e). We apply these standards directly to the agency record and give deference to the ALJ's interpretation of the law. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 233, 110 P.3d 1132 (2005); Kraft v. Dep't of Soc. Health Servs., 145 Wn. App. 708, 716-17, 187 P.3d 798 (2008).
Which Regulation Authorized the Increased Laundry Benefit?
Ms. Forrest contends that the increase in her laundry benefit should not have decreased her food benefit because the former was granted as a medical reimbursement under WAC 388-501-0160 and medical reimbursements are excluded from income when calculating food benefits. 7 C.F.R. § 273.9(c)(5)(i)(C) (income exclusions); 7 U.S.C. § 2014(d)(5) (income excluded in computing household income); WAC 388-450-0015(1)(1) (income excludes all payments federal law excludes as income). She concedes, however, that "if the funds were granted under WAC 388-440-0001 . . . then this money would be considered `unearned income' and would adversely impact the amount of food assistance Ms. Forrest would receive." Appellant's Br. at 9.
The ALJ concluded that WAC 388-440-0001 authorized her exceptional laundry benefit. We review de novo the ALJ's interpretation of the law. Quadrant Corp., 154 Wn.2d at 233; Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 329-30, 646 P.2d 113 (1982). Ms. Forrest bears the burden of proving that the ALJ applied the wrong rule. RCW 34.05.570(1)(a).
DSHS may grant an exception to any rule in the WAC when:
(a) The exception would not contradict a specific of federal law or state statute; and
(b) The client's situation differs from the; and
(c) It is in the interest of the overall economy the client's welfare; and
(d) It increases opportunities for the client to effectively; or
(e) A client has an impairment or limitation significantly interferes with the usual required to determine eligibility and.
WAC 388-440-0001(1). Ms. Forrest does not contend that her increased laundry benefit violates state or federal law. Nor does she contend that her need for an increased laundry benefit is anything but special, economical, and for her welfare. Indeed, her letter requesting more laundry money supports each requirement necessary to permit an exception under WAC 388-440-0001. See AR at 31. Ms. Forrest, therefore, fails to show the ALJ erred by concluding that WAC 388-440-0001 applied here.
She, nevertheless, maintains that DSHS granted her request under WAC 388-501-0160. DSHS may make an exception to its rule that it will not pay for a noncovered health care service if (1) the requested service is not excluded under state statute, (2) the service falls within accepted standards of good medical practice, and (3) the exception would be a cost-effective use of medical assistance program funds. WAC 388-501-0160(1)-(3). For DSHS to consider a request for an exception under this rule, Ms. Forrest had to submit certain certifications from her doctor, other information and documentation about her unique condition, and the services necessary to treat it. WAC 388-501-0160(4). Her request, however, did not include the necessary documentation, information, and certification. Ms. Forrest submitted only a spreadsheet listing her monthly laundry expenses and a letter that explained her general symptom and its effect. She asserted, without support, that the laundry services were medically necessary. Ms. Forrest's showing, then, did not satisfy the administrative requirements. WAC 388-501-0160(4). And its deficiencies barred DSHS from even considering it as a request to pay for a noncovered health care service. WAC 388-501-0160(4).
Ms. Forrest claims that DSHS should have denied her request or asked for more information if the request was deficient. DSHS must approve a request, deny a request, or request additional information from the client within 15 days of receiving the request. WAC 388-501-0160(5). And DSHS simply granted Ms. Forrest's request. But it could not have done so under WAC 388-501-0160 without the information, documentation, and certification necessary to support the decision. WAC 388-501-0160(1)-(4).
Ms. Forrest has failed to show that the ALJ erroneously applied the law. RCW 34.05.570(1)(a). She concedes that the additional money granted under WAC 388-440-0001 is unearned income (Appellant's Br. at 9), which is included when calculating her food benefit. WAC 388-450-0025; WAC 388-473-0010(5). We, therefore, affirm the ALJ's conclusions that WAC 388-440-0001 authorized Ms. Forrest's exceptional laundry benefit and that DSHS properly included the laundry benefit when calculating Ms. Forrest's food benefit.
Attorney Fees
Ms. Forrest requests an award of attorney fees and costs. She is entitled to the award only if she prevails. RCW 74.08.080(3). And she has not prevailed here. We, then, deny her request.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J. and BROWN, J., concur.
and well-founded fear." Oberster Gerichtshof [OGH] [Supreme Court] Apr. 1, 2008, Docket No. 5 Ob 272/07x (citing Austrian Civil Code § 870). Moreover, the Supreme Court of Austria observed that "[e]ven though claims for expropriation of property within the meaning of the [Third Restitution Law] can no longer be asserted due to expiration of the time limit (July 31, 1956), [these principles] continue[] to be an integral part of Austrian law."
Id.
Although it is unclear whether a cause of action comparable to the counterclaims of Vavra and Fischer against Bakalar could be successfully brought in Austria, allowing the claims to go forward under New York law is consistent with the principles underlying the decision of the Supreme Court of Austria. While Austria may have allowed its restitution-enabling act to elapse eleven years after the end of WWII in order to protect Austrian citizens, the present case does not involve a claim against any citizen of Austria. Accordingly, we conclude that Austria has no competing interest in the circumstances presented here.
Significantly, the Republic of Austria continues to investigate all works of art acquired between 1938-1945, which are now owned by it. Indeed, as the Austrian Embassy in the United States observed, "[w]orks of art not properly obtained will be returned to their original owners or their heirs." Austrian Press and Information Service, Austrian Holocaust Restitution, http://www.austria.org/content/view/414/1. Indeed, the International Bar Association recently reported that "The Austrian `Commission for Provenance Research' issued 11 recommendations, recommending the transfer of the disputed objects (including paintings, prints, sculpture, ethnographical objects and musical instruments) to the heirs of the initial owners in ten cases, and in part in one case." Sarah Theurich, International Bar Association, Art, Cultural Institutions and Heritage Law August 2009, http://www.ibanet.org/Article/Detail.aspx? ArticleUid=C93CF2FA-F5F6-4A64-A7D1-8BD907FDF3DD; see also Holocaust Claims Processing Office, Eight Artworks Returned to Rightful Heir From Austrian Museums with [Assistance] of Holocaust Claims Processing Office, http://www.claims.state.ny.us/pr 081002.htm.
In sum, we conclude that the district judge erred in holding that Swiss law, rather than New York law, applied here. Consequently, if, contrary to the holding of the district judge, the Drawing was stolen or otherwise unlawfully taken from Grunbaum, that circumstance would affect the validity of Bakalar's title.
III
Notwithstanding its conclusion that the manner in which the Drawing was acquired from Grunbaum would not have affected the outcome of the case, the district judge found that the Grunbaum heirs had failed to produce "any concrete evidence that the Nazis looted the Drawing or that it was otherwise taken from Grunbaum." Bakalar v. Vavra, 2008 WL 4067335, at *8 (S.D.N.Y. Sept. 2, 2008). Our reading of the record suggests that there may be such evidence, and that the district judge, by applying Swiss Law, erred in placing the burden of proof on the Grunbaum heirs in this regard. Indeed, as discussed earlier, if the district judge determines that Vavra and Fischer have made a threshold showing that they have an arguable claim to the Drawing, New York law places the burden on Bakalar, the current possessor, to prove that the Drawing was not stolen. See Lubell, 77 N.Y.2d at 321, 567 N.Y.S.2d 623, 569 N.E.2d 426 ("[T]he burden of proving that the painting was not stolen property rests with the [possessor]."). Moreover, should the district judge conclude that the Grunbaum heirs are entitled to prevail on the issue of the validity of Bakalar's title to the Drawing, the district judge should also address the issue of laches. This defense, which Bakalar raised in response to the counterclaim of the Grunbaum heirs, is one that New York law makes available to him.
Accordingly, for the reasons stated above, we vacate the judgment of the district court and remand the case for further proceedings, including, if necessary, a new trial.
IV
We turn briefly to the entirely collateral argument of the Grunbaum heirs that the district judge abused his discretion by limiting the discovery they sought for the purpose of filing a class action certification request. The order of the district judge directed non-parties Sotheby's, Inc., Christie's Inc., and Galerie St. Etienne, to provide "statistical information" necessary to address questions of class numerosity. Vavra and Fischer challenge the portion of the order excluding the identities of those who may have purchased works owned by Grunbaum. During a conference held on December 9, 2005, the district judge gave the following explanation for that limitation:
[G]iven the fact that this is a motion for class certification, what is important for the movant in that case, is to address the questions of numerosity. And the discovery that you are taking, you can, with the discovery that you are taking, that can be satisfied by providing you with statistics on the buyers and sellers of the Grunbaum works, and with the location by state or country at the time of the transaction, and whether the purchaser was a museum, an art dealer, or a private individual.
There is no reason to learn the specific identities of those people at this time.
(A-65-66.) (emphasis added).
The order did not in any way prevent the Grunbaum heirs from obtaining discovery sufficient to satisfy the numerosity requirement or any other requirement of Fed.R.Civ.P. 23(a). Indeed, it suggested implicitly that such information could be obtained at some later point. Under these circumstances, the district judge did not abuse his discretion by denying defendants' request for additional discovery. See Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219, 233 (2d Cir. 2006) ("The amount of [class] discovery is generally left to the trial court's considerable discretion.").
CONCLUSION
The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
EDWARD R. KORMAN, District Judge, separately concurring:
Often, when a verdict after a trial is reversed, other issues will be addressed which, though they do not affect the result, are likely to arise again on remand. While such a discussion may constitute dicta, it is justified by the desire to avoid the burden and expense that would result from the repetition of uncorrected error. Whether to undertake such an exercise is, of course, discretionary. While my colleagues, for perhaps understandable reasons, decline to engage in it, I take a different view and write to address more fully Part III of the panel opinion, which takes issue with the district judge's finding that the Grunbaum heirs had failed to produce "any concrete evidence that the Nazis looted the Drawing or that it was otherwise taken from Grunbaum." Bakalar v. Vavra, 2008 WL 4067335, at *8.
While the panel opinion observes that "[o]ur reading of the record suggests that there may be such evidence," [Panel Opinion, ante at *9] it does not say what that evidence is, nor does it discuss the legal principles applicable to what is essentially a mixed question of law and fact. The district judge is left to comb the record without assistance, looking for evidence he did not see the first time around, and without guidance as to the legal principles that make the evidence particularly relevant. I write to fill this gap.
Grunbaum was arrested while attempting to flee from the Nazis. After his arrest, he never again had physical possession of any of his artwork, including the Drawing. The power of attorney, which he was forced to execute while in the Dachau concentration camp, divested him of his legal control over the Drawing. Such an involuntary divestiture of possession and legal control rendered any subsequent transfer void.
"Under American law and the law of many foreign states there is only one scenario in which a good-faith purchaser's claim of title is immediately recognized over that of the original owner. This scenario arises when the owner voluntarily parts with possession by the creation of a bailment, the bailee converts the chattel, and the nature of the bailment allows a reasonable buyer to conclude that the bailee is empowered to pass the owner's title." Patricia Youngblood Reyhan, A Chaotic Palette: Conflict of Laws in Litigation Between Original Owners and Good-Faith Purchasers of Stolen Art, 50 Duke L.J. 955, 971 (2001) (emphasis added). The principle to which Professor Reyhan alludes is codified in more limited form in section 2-403(2) of the Uniform Commercial Code, which was adopted by New York, and which provides that "[a]ny entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business." No such voluntary entrustment took place here. Nor did Grunbaum's flight from the Nazis constitute a voluntary abandonment.
Section 2-403(1) of the Uniform Commercial Code, which addresses principally the consequences of the transfer of title, rather than mere possession, provides that a person with voidable title has the power to transfer good title to a good-faith purchaser for value, and provides four examples of circumstances in which this rule applies. "The key to the voidable title concept appears to be that the original transferor voluntarily relinquished possession of the goods and intended to pass title." Franklin Feldman Stephen E. Weil, Art Law § 11.1.3 (1986). The Feldman Weil treatise continues: "He may have been defrauded, or the check he received may have bounced, or he may have intended to sell it to Mr. X rather than to Mr. Y, but, nevertheless, he intended to pass title. In such cases, the transferor has an option to void the sale, but the transferee can pass good title. A person who acquired the goods from a thief, however, has no title and consequently neither he nor successive transferees can pass ownership." Id.; see also Thomas M. Quinn, Quinn's Uniform Commercial Code Commentary and Law Digest § 2-403[A][6] (2d ed., 2002). Grunbaum never voluntarily intended to pass title to the Drawing. On the contrary, the circumstances strongly suggest that he executed the power of attorney with a gun to his head.
Nevertheless, the district judge, relying on U.C.C. § 2-403(1), concluded that "Galerie St. Etienne was a seller with voidable title to the Drawing, having acquired it from Galerie Gutekunst in 1956," and that Bakalar, a good faith purchaser for value, acquired good title to the Drawing. 2008 WL 4067335, at *6. While the district judge did not identify the defect in the title acquired by Galerie Gutekunst, which rendered voidable the title it passed to Galerie St. Etienne, his conclusion that the title was voidable implicitly recognizes that there was some legal defect in the passage of title to the Drawing as it made its way from Grunbaum to the Galerie Gutekunst. Otherwise, the district judge would have had no basis to characterize as "voidable" the title the latter conveyed to the Galerie St. Etienne. This characterization, however, ignores the fact that, if the power of attorney signed by Grunbaum was involuntary, any subsequent transfer was void and not merely voidable.
This case is analogous to the circumstances in two reported cases. In Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008), aff'g 529 F.Supp.2d 300, 307 (D.R.I. 2007), the Nazis issued an edict directing the Jewish owner of an art gallery to liquidate the gallery and its inventory after determining that he "lacked the requisite personal qualities to be an exponent of German culture." Id. at 53. After unsuccessfully appealing this edict, the owner "surrendered to the inevitable," and consigned most of the affected works to a government-approved purveyor. Id. The consigned pieces, including a painting by Franz Xaver Winterhalter known as "Mädchen aus den Sabiner Bergen" ("Girl from the Sabine Mountains"), were auctioned at prices below their fair market value. Fearing for his life, the owner fled Germany shortly after the forced sale. Consequently, he never retrieved the auction proceeds. Id. The district court had little trouble in concluding that the owner's "relinquishment of his property was anything but voluntary," 529 F.Supp.2d at 307, and that holding was not challenged on appeal.
Similarly, in Menzel v. List, the Jewish owners of a painting by Marc Chagall entitled "Le Paysan a L'echelle" ("The Peasant and the Ladder") left their apartment in Brussels when they fled in March, 1941, before the oncoming Nazis. 49 Misc.2d 300, 301-2, 267 N.Y.S.2d 804 (1966), modified as to damages, 28 A.D.2d 516, 279 N.Y.S.2d 608 (1st Dep't 1967), rev'd as to modification, 24 N.Y.2d 91, 298 N.Y.S.2d 979, 246 N.E.2d 742 (1969). The painting was seized by the Nazis, who left a certification or receipt "indicating that the painting, among other works of art, had been taken into `safekeeping.'" Id. at 301, 267 N.Y.S.2d 804. The New York State Supreme Court Justice hearing the case concluded that the painting had not been abandoned because it did not constitute "a voluntary relinquishment of a known right." Id. at 305, 267 N.Y.S.2d 804. The Justice continued: "The relinquishment here by the Menzels in order to flee for their lives was no more voluntary than the relinquishment of property during a hold-up." Id. Consequently, he ordered the current possessor of the painting, and good-faith purchaser, to either return it to Mrs. Menzel or pay her $22,500, its fair value at the time of the case. Moreover, he also held that the good-faith purchaser could recover the $22,500 for breach of warranty of title from the Perls Galleries, from whom the painting was purchased. In so doing, the Justice explained:
It is of no moment that Perls Galleries may have been a
bona fide purchaser of the painting, in good faith and for value and without knowledge of the saga of the Menzels. No less is expected of an art gallery of distinction. Throughout the course of human history, the perpetration of evil has inevitably resulted in the suffering of the innocent, and those who act in good faith. And the principle has been basic in the law that a thief conveys no title as against the true owner.
Id. at 314-15,
267 N.Y.S.2d 804 (citations omitted).
The assumption that the Perls Galleries acted in good faith was undermined by its own conscious avoidance. As the New York Court of Appeals explained in the course of upholding the award of damages against it in favor of the good faith purchaser, the Perls Galleries was responsible for the position in which it found itself. Specifically, the Perls Galleries would not have been in that position if it had satisfied itself that it was getting good title from the art gallery from whom it purchased the artwork. Instead, the Perls testified "that to question a reputable dealer as to his title would be an `insult.' Perhaps, [the Court of Appeals responded], but the sensitivity of the art dealer cannot serve to deprive the injured buyer of compensation for a breach which could have been avoided had the insult been risked." Menzel, 24 N.Y.2d at 98, 298 N.Y.S.2d 979, 246 N.E.2d 742.
Based on the historical record of the time, to which reference has already been made, the power of attorney Grunbaum signed in the fourth month of his confinement in Dachau does not appear to be any more voluntary a relinquishment of his legal interest in the Drawing than the acts discussed in Vineberg and Menzel. Bakalar's suggestion that the power of attorney constituted a voluntary entrustment of property to his wife is a proposition that remains for him to prove. Unless he does so, even if Mrs. Grunbaum "subsequently transferred the Drawing to her sister, Mathilde Lukacs, in 1938, to prevent it from falling into the hands of the Nazis," as Bakalar alleges, she could not convey valid title to the artwork. Significantly, the district judge made no finding that any entrustment for this purpose even took place.
On this score, Bakalar's amended complaint, which was filed on the eve of trial, posits two theories for what happened to the collection: 1) "that Elisabeth succeeded in hiding the [Drawing] from the Nazis prior to her deportation, and that her sister, Lukacs-Herzl, managed to take the collection with her into exile in Belgium," or 2) "that after the Grunbaum's apartment was aryanized by the Nazis in 1938, the family's library and art collection were purchased by a Viennese antiquarian book-seller who lived in the same neighborhood for approximately $90, and that the Viennese bookseller then either sold or gave the collection to Lukacs-Herzl at some point thereafter." (A-277.) Of course, the second alternative assumes that the property was taken by the Nazis, and Bakalar acknowledges that, even under the first theory, scholars believe it is unlikely that Lukacs-Herzl could have saved the entire collection given the circumstances under which she left Austria. Indeed, Grunbaum's heirs offered expert evidence consistent with the premise that Lukacs-Herzl could not have removed or salvaged the paintings because "she was a Jewish woman who was interned in a Belgian work camp by the Nazis until 1944 after she fled Vienna together with her husband. It is more likely that a person like Kieslinger with direct ties to the Nazis took possession of the Grunbaum collection." (A-1273.) Significantly, neither of the two theories posited by Bakalar are predicated on the assumption that Mrs. Grunbaum voluntarily gave over Fritz Grunbaum's art collection to either Lukacs-Herzl or the Nazis who aryanized her apartment.
Nor do the district court's findings of fact support Bakalar's argument "that someone in the Grunbaum family more likely than not exported the Drawing from Vienna." The district judge merely speculated that "[t]he Drawing could have been one of the 417 drawings Elisabeth Grunbaum possibly exported . . . in 1938," or that the Drawing "could have been one of three drawings Lukacs's husband exported," or that "it could have been" one of the three watercolors exported by Lukacs's brother-in-law. 2008 WL 4067335, at *8 (emphasis added). These scenarios, based on pure speculation, do not constitute findings by a preponderance of the evidence that what "could have" happened, actually did happen.
Moreover, although Bakalar now claims that there is no "direct evidence that all of the Schiele art sold by Lukacs had once belonged to Fritz Grunbaum," or that "the Drawing belonged to Fritz Grunbaum prior to or during the war," there is significant circumstantial evidence that this artwork had belonged to him. Indeed, the district judge decided the case on this premise, and it was supported by the deposition testimony of Eberhard Kornfeld, a partner at Galerie Gutekunst, and the trial testimony of Jane Kallir, the current director of the Galerie St. Etienne. Significantly, the Sotheby's Catalogue Description for the Drawing, February 8, 2005, which it prepared on Bakalar's behalf, listed the provenance as follows:
Fritz Grunbaum, Vienna (until 1941)
Elisabeth Grunbaum-Herzl, Vienna (widow of the above; until 1942; thence by decent)
Mathilde Lukcas-Herzl (sister of the above)
Gutekunst Klipstein, Bern (on consignment from the above by 1956)
Galerie St. Etienne, New York
Norman Granz, New York
Galerie St. Etienne, New York
Acquired from the above by the present owner
(A-700.)
The admission by Sotheby's as to the initial provenance of the Drawing was confirmed by the judicial admission regarding its provenance in Bakalar's original complaint. See Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). Specifically, Bakalar alleged in his complaint that:
The Drawing has an established and documented provenance. It originally belonged to the collection Fritz Grunbaum, a well-known Vienesse cabaret performer. In 1938, the Nazis confiscated Grunbaum's residence and inventoried the contents of his art collection. Grunbaum was deported to Dachau, where he died in 1941. His wife, Elisabeth, died the following year. By all credible accounts, however, the Grunbaum art collection escaped confiscation by the Nazis, and the collection, including the Drawing, subsequently came in to the possession of Grunbaum's sister-in-law, Mathilde Lukacs-Herzl, after the war.
(A-217.) On the eve of trial, Bakalar moved to file an amended complaint, deleting his admission as to the initial provenance of the Drawing, because it was based on information he obtained from Kornfeld, who had come to this conclusion in 1998 after he learned of Fritz Grunbaum's relationship to Lukacs-Herzl. While Bakalar was apparently permitted to file an amended complaint, Kornfeld and Kallir had sufficient expertise in the field to provide competent evidence on this score. Nor is it any answer to argue, as Bakalar does here, that their opinion was based on circumstantial rather than direct evidence. Moreover, notwithstanding the amended complaint, Bakalar's admission as to the provenance of the Drawing constitutes competent evidence that the trier of fact is free to consider, along with Bakalar's explanation for its inclusion in the original complaint.
In sum, my reading of the record suggests that there is substantial evidence to support the claim of the Grunbaum heirs that the Drawing was owned by Grunbaum and he was divested of possession and title against his will.