13-60-cv
Barney Shiotani v. Charles Walters, et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of February, two thousand fourteen.

Present:
            ROBERT D. SACK,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
____________________________________________________

BARNEY SHIOTANI,

                           Plaintiff–Appellant,

                  v.                                                          No. 13-60-cv

CHARLES WALTERS, JUANITA WALTERS,

                           Defendants–Appellees,

                           – and –

NATIONAL MUSEUM OF CATHOLIC ART AND HISTORY,

                  Defendant.
____________________________________________________

FOR APPELLANT:                       Robert E. Goldman (John A. Wait, Oksana G. Wright, Fox
                                     Rothschild LLP, New York, NY, on the brief), Robert E. Goldman
                                     LLC, Fountainville, PA.
FOR APPELLEES:          Malcolm S. Taub, Davidoff Hutcher & Citron LLP, New York,
                        NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Sullivan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff–Appellant Barney Shiotani appeals from the district court’s order granting

Defendants–Appellees Charles and Juanita Walters’ motion for summary judgment and

dismissing his claim to a painting, entitled “The Betrayal of Christ,” attributed to the 17th

Century Flemish artist Sir Anthony Van Dyck. Shiotani commenced this action sounding in

replevin and conversion under New York law in an effort to recover from the Walters the

painting, which he claims rightfully belongs to him. On appeal, Shiotani argues that there is a

genuine dispute as to who had rightful ownership of the painting in 1985 and whether he was

assigned the ownership interest in the painting through a subsequent bankruptcy proceeding. He

also argues that the district court erred when it held that his claims were barred by the doctrine of

laches. We assume the parties’ familiarity with the underlying facts, procedural history of the

case, and issues on appeal.

       “We review a grant of summary judgment de novo.” Cariou v. Prince, 714 F.3d 694, 704

(2d Cir. 2013). “In reviewing a summary judgment decision, we apply the same standards

applied by the district court. Under this standard, summary judgment may be granted only if

‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’ In determining whether there is a genuine dispute as to a material fact, we must

resolve all ambiguities and draw all inferences against the moving party.” Marvel Characters,



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Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013) (quoting Fed. R. Civ. P. 56(a), other internal

quotation marks and citations omitted).

        Under New York law, claims sounding in replevin and conversion place the burden on

the plaintiff to establish that his right of ownership in the property is superior to that of the

defendants. See, e.g., Nissan Motor Acceptance Corp. v. Scialpi, 944 N.Y.S.2d 160, 161–62 (2d

Dep’t 2012); see also Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50 (2006);

and see generally Sinnott v. Feiock, 165 N.Y. 444, 445–46 (1901). Shiotani’s claim of superior

right derives from the 1985 bankruptcy of American Resources Limited (“ARL”). He asserts

that there is a genuine dispute as to whether ARL owned the painting at the time it entered

bankruptcy, and that through the bankruptcy, as reflected in the bankruptcy court’s order

confirming the settlement of the estate, he obtained ARL’s interest in the painting. We disagree.

As the district court explained, the undisputed evidence does not support such a contention.

        The parties do not dispute that an art broker, Raymond Verveckken, purchased the

painting in 1982 while operating an entity named Lalique Art Galleries, Inc. Evidence

supporting the purchase by Lalique includes checks signed by Verveckken on behalf of Lalique

and made out to the previous owners of the painting, as well as Verveckken’s deposition

describing his involvement in the transaction. Lalique’s ownership is also reflected in a

document executed after the sale. This document, an agreement relating to the proposed sale of

the painting dated February 15, 1983, and signed by Shiotani, states that “Lalique Art Galleries,

Inc., a Texas Corporation, is the owner of a certain original painting,” identified as the Van

Dyck. Although a security agreement dated March 14, 1982, states that “ARI [sic] possesses the

right title and interest in [the painting] . . . to enable ARI [sic] to pledge and hypothecate so much

of the interest, including the whole thereof,” Verveckken also signed the agreement, thereby



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“consent[ing] to and approv[ing] the provisions of said Agreement in its entirety” on his own

behalf and as President and principal shareholder of Lalique. Shiotani urges us to rely solely on

the 1982 Agreement as evidence of ARL’s complete ownership of the painting, pointing out that

ARL was not a party to the 1983 Agreement and arguing that the 1983 Agreement was

fraudulently induced. Based on these documents, there is not sufficient evidence for a

reasonable juror to conclude that ARL owned the painting at the time of its bankruptcy, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), especially when the bankruptcy

trustee found ARL’s ownership interest “questionable” because corporate records did not suggest

ARL acquired the painting, nor was the painting identified on any corporate ledgers.

       Shiotani argues that Curtis Bernhardt underwrote the purchase of the painting and

therefore owned the painting when the gallery purchased it with his funds. Shiotani further

argues that Bernhardt, given his roles at Lalique and ARL, had the “right and ability to provide

the Painting to his company, ARL, as an asset of the company.” Appellant’s Br. at 19. The

district court correctly noted, however, that Bernhardt was never listed as an officer or director of

either Lalique or ARL. Shiotani fails to produce admissible evidence such that a reasonable

juror could find that Bernhardt conveyed ownership of the painting to ARL. Without sufficient

evidence for a reasonable juror to find that ARL, in fact, had title to the painting, Shiotani cannot

demonstrate that he obtained a cognizable right of ownership through his later assumption of

ARL’s interests.

       We have considered Shiotani’s remaining arguments and find them to be without merit.

The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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