FILED: NEW YORK COUNTY CLERK 02/29/2016 05:38 PM INDEX NO. 650646/2014 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 03/01/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ;X Index No. 650646/14 GEORGE W. GOWEN as LIMITED ANCILLARY ADMINISTRATOR OF THE ESTATE OF OSCAR STETTINER, -against- Plaintiff, DEFENDANTS' FIRST NOTICE TO PRODUCE DOCUMENTS HELL Y NAHMAD GALLERY, INC., HELL Y NAHMAD (NEW YORK), individually, DAVID NAHMAD and INTERNATIONAL ART CENTER, S.A., Defendants, ---------------------~X PLEASE TAKE NOTICE that, pursuant to the provisions ofrule 3120 ofthe New York Civil Practice Law and Rules ("CPLR"), plaintiff GEORGE W. GOWEN as LIMITED ANCILLARY ADMINISTRATOR OF THE ESTATE OF OSCAR STETTINER ("Gowen"), is hereby required to produce, for inspection and copying, at the office of the undersigned attorney for defendants, on or by March 21, 2016, the following documents in plaintiffs possession, custody and/or control. PLEASE TAKE NOTICE that this Defendants' First Notice to Produce Documents (the "Notice") is without prejudice to, and shall not in any manner whatsoever be construed as a waiver of, any and all of defendants' rights to serve additional and supplementary Notices to Produce. PLEASE TAKE FURTHER NOTICE that the Notice is without prejudice to, and shall not in any matter whatsoever be construed as a waiver of, any and all of defendants' rights to make a motion to dismiss, pursuant to CPLR 3211,which may suspend
discovery. DEFINITIONS 1. Communication. The term communication means the transmittal of information (in the form of facts, ideas, inquiries or otherwise). 2. Document. The term document is defined as the full scope of documents and things discoverable under the CPLR and is used in its broadest sense to include, without limitation, any original written, printed, typed, or other graphic or tangible matter of any kind, however produced or reproduced, and whether or not sent or received, including drafts and copies bearing notations or marks not found in the original, including but not limited to e-mails, letters, correspondence, notes, releases, indemnifications, telexes, telegrams, cables, mailgrams, facsimile transmissions, notes of meetings, slide transparencies, photographs, contact sheets, negatives, prints, tear sheets, videotapes, computer images, film, photocopies, any means of image recording, books, papers, things, files, memoranda, calendars, receipts, reports and other writings or evidence of any type. 3. Photograph. The term Photograph is defined as any means of image recording, including without limitation, photographs, photocopies, slide transparencies, contact sheets, negatives, prints, tear sheets, videotapes, DVD discs, computer images, film, photocopies, e-mail or internet images. 4. Identify (With Respect to Persons). When referring to a person, to identify means to give, to the extent known, the person s full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment. Once a person has been identified in accordance with this subparagraph, 2
only the name of that person need be listed in response to subsequent discovery requesting the identification of that person. 5. Identify (With Respect to Documents). When referring to documents, to identify means to give, to the extent known, the: (i) type of document; (ii) general subject matter; (iii) date of the document; and (iv) author(s), addressee(s) and recipient(s). 6. Gowen means plaintiff George W. Gowen as limited ancillary administrator of the Estate of Oscar Stettiner, including, without limitation, any person or entity affiliated (in any manner) with Gowen, his employees, servants, agents, attorneys, contractors or any other person acting on his behalf or at his behest. 7. The Estate means the Estate of Oscar Stettiner, including, without limitation, any person or entity affiliated (in any manner) with the Estate, its agents, attorneys, contractors or any other person acting on its behalf or at its behest. 8. Stettiner means Oscar Stettiner, including, without limitation, any person or entity affiliated (in any manner) with Stettiner, his employees, servants, agents, attorneys, contractors or any other person acting on his behalf or at his behest. 9. The Painting means the painting by Amedeo Modigliani titled Seated Man with a Cane, 1918. 10. Plaintiff means George W. Gowen as limited ancillary administrator of the Estate of Oscar Stettiner. 11. Defendants means HELLY NAHMAD GALLERY, INC., HELLY NAHMAD (NEW YORK), DAVID NAHMAD and INTERNATIONAL ART CENTER, S.A. 12. Amended Complaint means Plaintiff s Verified Amended and Supplemental 3
Complaint, dated November 23, 2015. 13. "Concerning" means relating, concerning, referring and/or pertaining. RULES OF CONSTRUCTION 1. All/Each. The terms "all" and "each" shall be construed as all and each. 2. And/Or. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that otherwise might be construed to be outside of its scope. 3. Number. The use of the singular form of any word includes the plural and vice versa. INSTRUCTIONS 1. The documents or other things shall be produced in their original form as they are kept in the usual course of business or shall be organized and labeled to correspond to the paragraphs ofthe Notice to which they respond. If a document or other thing is responsive to more than one paragraph of the Notice, it shall be labeled to correspond to the paragraph which first requests it. 2. If you withhold any document from production that you deem to be properly withheld from production for inspection or copying on the ground of privilege, work product or otherwise, identify for each and every such document: (i) the basis for withholding production of the document, e.g., attorney-client privilege; (ii) the identity of the client and the attorney(s); (iii) if the basis for withholding production of a document is work product or trial preparation materials, the identity of the litigation in anticipation of which the document was prepared or of the trial for which the document was prepared; (iv) the title and subject matter of the document; (v) the type of document (e.g., letter, 4
memorandum); (vi) the composition of the document or other thing (e.g., typed, handwritten or taped); (vii) whether the document is an original or a copy; (viii) the number of pages of the document; (ix) the date of the document; (x) the author(s) of the document, including, without limitation, the person who drafted or otherwise prepared the document, the person who signed the document and the company or other entity on whose behalf the document was prepared or signed; and (xi) the recipient(s) of the document, including, without limitation, any person to whom the document was sent, shown or who otherwise was aware of the contents of the document. 3. If a document called for by the Notice has been destroyed, it should be identified at the time of production and additionally the following should be provided: (i) the date of destruction; (ii) the manner of destruction; (iii) the name, title and address of the person who destroyed the document; and (iv) a full description of the efforts made to locate the document and make copies of it. 4. Each document sought by the Notice should be produced in and with the file folder and other document (e.g., envelope, file cabinet marker) in or with which the document was located when this request was served. TIME PERIOD 1. Unless specified otherwise, the Notice shall include all documents dated, prepared or received on or after 1900 to the date of production. The Notice is deemed to be continuing and includes documents coming into Plaintiffs possession at a time subsequent to the Notice. DOCUMENTS TO BE PRODUCED 1. Any and all documents concerning Stettiner's purported ownership or 5
possession of the Painting. 2. Any and all documents relating to the acquisition of the Painting by Stettiner, including, but not limited to, the invoice and bill of sale. 3. Any and all documents concerning evidence of title in the painting known as "Seated Man with a Cane, 1918" by Amedeo Modigliani and/or the painting that is the subject matter of this action. 4. Any and all shipping records relating to the Painting. 5. Any and all documents relating to the provenance of the Painting. 6. Any and all documents concerning the artwork that composed Stettiner' s personal art collection, as set forth in Paragraphs 3, 38 and 39 of the Amended Complaint. 7. Any and all documents concerning the artwork that composed the inventory of Stettiner' s art gallery in Paris, as set forth in Paragraphs 3 and 38 of the Amended Complaint. 8. Any and all correspondence relating to the Painting from the time of its creation to the present. 9. Any and all documents concerning communications between Stettiner, Stettiner's heirs or the plaintiff, on the one hand, and any third party, including, but not limited to, Sotheby's, Christie' s, Phillips or any other auction house, on the other, relating to the Painting. 10. Any and all documents concerning Stettiner's interactions with the French Government, any agency of the French Government or any other individual or entity that took action to seize or take possession of Stettiner's property, purportedly including the 6
Painting, between September 1, 1939 and August 25, 1944. 11. Any and all documents concerning any individuals or entities that owned or possessed the Painting prior or subsequent to Stettiner's death. 12. Any and all documents concerning any purported sale of the Painting at any time. 13. Any and all documents relating to or reflecting research conducted on the history of the Painting or of Stettiner. 14. Any and all documents concerning Stettiner's loan of the Painting to the Venice Biennale in 1930, as set forth in Paragraphs 40-41 of the Amended Complaint. 15. Any and all documents concerning any additional loans ofthe Painting made by Stettiner. 16. Any and all documents concerning the appointment of Marcel Philippon as Temporary Administrator of Stettiner's property, as set forth in Paragraphs 48-49 of the Amended Complaint. 17. Any and all documents concerning actions taken by Marcel Philippon to seize or take possession of artwork purportedly owned by Stettiner, including the Painting. 18. Any and all documents concerning actions taken by Marcel Philippon to sell or otherwise transfer ownership or possession of artwork purportedly owned by Stettiner, including the Painting, as set forth in Paragraphs 49-51 ofthe Amended Complaint. 19. Any and all documents concerning efforts made by Stettiner after August 25, 1944 to locate artwork purportedly owned by him and stolen by the Nazis, including 7
the Painting. 20. Any and all documents concerning legal proceedings commenced by Stettiner after August 25; 1944 to recover, reclaim or have restituted artwork purportedly owned by him and stolen by the Nazis, including the Painting. 21. Any and all documents concerning attempts made by Stettiner after August 25, 1944 to recover, reclaim or have restituted artwork purportedly owned by him and stolen by the Nazis, including the Painting. 22. Any and all documents concerning efforts made by Stettiner's heirs after August 25, 1944 to locate artwork purportedly owned by Stettiner and stolen by the Nazis, including the Painting. 23. Any and all documents concerning legal proceedings commenced by Stettiner's heirs after August 25, 1944 to recover, reclaim or have restituted artwork purportedly owned by Stettiner and stolen by the Nazis, including the Painting. 24. Any and all documents concerning attempts made by Stettiner's heirs after August 25, 1944 to recover, reclaim or have restituted artwork purportedly owned by Stettiner and stolen by the Nazis, including the Painting. 8
25. Any and all documents concerning Plaintiffs valuation of the Painting. Dated: New York, New York February 29, 2016 Respectfully submitted, AARON RICHARD GOLUB, ESQUIRE, PC AjJ~ efests ~ BY: Nehemiah S. Glanc 113 East 64th Street - 2nd Floor New York, New York 10065 Ph: (212) 838-4811 TO: McCARTHY FINGAR, LLP Attorney for Plaintiff 11 Martine A venue, 12th Floor White Plains, New York 10606 Ph: (914) 946-3700 9