The heirs of George Grosz, a famous Weimar period artist and relentless critic of the Nazis and German military establishment, filed suit in New York on Friday, April 10, 2009 against the Museum of Modern Art (MoMA) for refusing to return three artworks created by Grosz and left behind by him when he fled Germany in 1933 to avoid Nazi threats against his life. The artworks, Portrait of the Poet Max Herrmann-Neisse, Self-Portrait with Model, and Republican Automatons, were left behind in Germany with his Galerist Alfred Flechtheim. Eventually Flechtheim was also forced to flee Germany due to Nazi persecution and the artworks were lost after Flechtheim's death.

Suit against MoMA was filed only after MoMA refused further discussion with the Grosz heirs, refused to toll the statute of limitations, and refused to mediate or arbitrate the dispute. Under the Washington Conference principles museums are to seek "fair and just" solutions to Nazi-era claims, and under the AAM and AAMD guidelines museums also should waive technical defenses such as the statute of limitations and laches and seek alternative avenues of dispute resolution, such as through mediation or arbitration. MoMA refused all of these suggested alternatives, leaving the Grosz heirs with no other alternative but to file suit.

The Max Herrmann-Neisse painting, one of the best examples of Grosz' portraits, was created by George Grosz in 1927 and was consigned by Grosz to the Galerie Alfred Flechtheim in Berlin. The Flechtheim Galerie exhibited the painting on several occasions including at the MoMA in 1931. However, in 1933 the Flechtheim Galerie went into liquidation and Alfred Flechtheim fled Germany due to Nazi persecution.

In early 1933, George Grosz left Germany after being threatened by the Nazis and took up a teaching position in New York with the Art Students League. As a strident Nazi opponent Grosz exited Germany just prior to Hitler's appointment as Chancellor. Shortly thereafter Grosz'apartment and atelier in Berlin were ransacked by Nazi storm troopers and approximately 285 Grosz artworks, including those on display in museums, were either confiscated or destroyed.

While he was in exile in America, the Nazi government ordered all of Grosz' property left behind in Germany confiscated, including the Max Herrmann-Neisse painting, and revoked his German citizenship. Although steps were taken against Grosz' property as early as 1933, including the seizure of his bank account, the confiscation of his property and revocation of Grosz' German citizenship was published by the Nazis on March 9, 1938.

Alfred Flechtheim died on March 11, 1937 in London, having also been exiled from Germany. Flechtheim's wife, Betty, stayed on in Germany not having raised the necessary funds to pay Jewish taxes in order to obtain permission to leave. She eventually committed suicide in 1941 after having been given notice that she would be sent to a concentration camp.

During all this time, the Max Herrmann-Neisse painting stayed in Berlin. On April 4, 1937, shortly after Flechtheim's death, and subsequent to to the closure of Flechtheim's Galeries, Charlotte Weidler, an art dealer and curator for the Carnegie Institute, claimed she had "inherited" paintings from Flechtheim including the Max Herrmann-Neisse painting.

However, the Max Hermann-Neisse painting belonged to George Grosz who had never given up its ownership.

After WWII, in 1949 Weidler brought the painting to New York where she sold it to MoMA in 1952 through a dealer in Nazi-confiscated art, named Curt Valentin. At the time, George Grosz was living in New York but was not informed of the sale. Records indicate that MoMA never inquired as to the seller or the painting's further provenance.

When Grosz first learned that the Max Herrmann-Neisse painting was hanging in the collection of the MoMA in 1953, he wrote to his brother-in-law Otto Schmalhausen that "Modern Museum exhibited a painting that was stolen from me (I am powerless against that) they bought it from someone who stole it." Despondent due to Nazi persecution and the loss of his artistic legacy, Grosz died a broken man.

Weidler had also been involved in a very similar case involving the collection of Paul Westheim. After the publisher and art collector Paul Westheim fled Germany during the Nazi takeover, he left his art collection behind with Charlotte Weidler. Weidler left Germany as well in 1939 and stored the Westheim artworks in her sister's apartment in Berlin. Following the war Westheim asked Weidler what had become of his collection, and Weidler told him that his art collection was a total loss. This was not true.

Following Westheim's death in 1963, Weidler sold paintings from Westheim's collection that he left with her. Westheim's collection lost in Nazi Germany was well documented in publications and in German restitution claims. Among the Westheim paintings sold by Weidler was "An die Schoenheit"(To Beauty), by Otto Dix, which Weidler sold to the German art dealer Dr. Ewald Rathke. However, Rathke found out that Weidler was not the owner and forced Weidler to compensate Westheim's wife.

Besides the loss of the Max Herrmann-Neisse painting to Charlotte Weidler without compensation, Grosz also lost other artworks which he had consigned to Alfred Flechtheim and which were sold without Grosz' authorization in a sham auction in Amsterdam after Flechtheim's death. Among the artworks sold in the Amsterdam auction were Self-Portrait with Model and Republican Automatons, also now in the possession of MoMA.

Asked to comment on the events leading to the suit against MoMA, Marty Grosz said "We are very respectful of the MoMA, one of the leading modern art museums in the world. Unfortunately they were not willing to apply the principles of the Washington Conference and reach a "fair and just solution" in this case. MoMA left us with no alternative but to file suit. We were quite willing to resolve the matter amicably, but they refused."