## Facts

- The Leopold Foundation (a nonresident lender) loaned over 150 works by Egon Schiele to the Museum of Modern Art (MoMA) in New York for a temporary exhibition.
- Two loaned paintings, *Portrait of Wally* and *Dead City III*, were alleged to have been confiscated from Jewish owners during Nazi-era persecution.
- Claimants demanded return of the paintings while they were on exhibit in New York.
- MoMA stated it did not own the paintings and was obligated by loan agreement to return them to the lender after the exhibition.
- The New York County District Attorney, through a grand jury investigation into alleged theft, served MoMA with a subpoena duces tecum requiring production of the two paintings.
- MoMA moved to quash the subpoena under New York Arts and Cultural Affairs Law § 12.03, which immunizes qualifying loaned artworks from “any kind of seizure” while in New York.

## Issues

1. Whether a grand jury subpoena duces tecum requiring a museum to surrender loaned artworks constitutes a “seizure” barred by Arts and Cultural Affairs Law § 12.03.
2. Whether § 12.03’s immunity applies to criminal investigative process, not only to civil process.

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated the trial court’s order quashing the subpoena.
- The court held that § 12.03 barred enforcement of the grand jury subpoena because compelling physical surrender of the paintings operated as a “seizure.”
- The court reasoned that the statutory phrase “any kind of seizure” was intentionally broad and not limited to civil attachment or execution.
- The court concluded that extending immunity to criminal process aligned with the statute’s purpose of encouraging nonresident lenders to exhibit works in New York without fear of compulsory taking.
- The court emphasized the ruling did not decide ownership of the paintings or the merits of any Holocaust-era restitution claim; it addressed only the subpoena’s enforceability while the works were protected by § 12.03.
- A dissent would have allowed enforcement, reading § 12.03 as not intended to restrict criminal investigative tools.

## Legal Principles

- When Arts and Cultural Affairs Law § 12.03 applies, qualifying loaned artworks are immune from “any kind of seizure” while in New York for the approved temporary exhibition period.
- A grand jury subpoena duces tecum compelling physical production of an artwork may constitute a “seizure” within the meaning of § 12.03.
- Statutory immunity from seizure can limit the use of otherwise available investigatory measures when the Legislature has clearly chosen to protect a competing public interest.
- A court’s enforcement decision on a subpoena may be resolved without adjudicating underlying ownership rights or restitution claims.

## Conclusion

The New York Court of Appeals held that the immunity-from-seizure statute for nonresident loaned artworks barred a grand jury subpoena requiring a museum to surrender protected paintings during their authorized exhibition in New York, leaving ownership and restitution disputes to other forums or procedures.


In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 N.Y.2d 729 (N.Y. 1999)