The Museum of Modern Art moved yesterday to quash a grand jury subpoena requiring it to retain two paintings with disputed ownership that were lent to the museum for its "Egon Schiele: The Leopold Collection" exhibition.
The museum said the paintings, which were borrowed from the Leopold Museum in Vienna, are shielded from detention or seizure of any kind by the New York State Arts and Cultural Affairs Law, enacted 30 years ago.
The case turns on a difference of opinion on the scope of that statute, which protects cultural loans. District Attorney Robert M. Morgenthau of Manhattan, who issued the subpoena on Jan. 7, just hours before the paintings were to be shipped back to Austria, says the law's protection does not extend to property in a criminal investigation like the one he has under way.
But the museum said the statute was unambiguous and unqualified. "The New York Legislature, using broad and all-encompassing language, provided that any work of art on public exhibition in New York State (or traveling to or from such exhibition) is absolutely immune from 'any kind of seizure,' " it said in its motion.
Mr. Morgenthau declined to comment on the challenge.
Whose view prevails in New York State Supreme Court will be decided by Judge Laura E. Drager. In court yesterday, the District Attorney's office agreed to respond to the Modern's motion on Feb. 9. The Modern will reply by Feb. 17, and the judge said she would decide by March 5.
The paintings, "Portrait of Wally" and "Dead City," are claimed respectively by the Bondi and the Reif families, who say the works were confiscated by the Nazis. Dr. Rudolf Leopold, a 72-year-old Viennese ophthalmologist who acquired the works years ago as part of a huge collection, has steadfastly said he obtained the works legally. In 1994 he sold the collection to an Austrian Government-financed foundation, which is building the Leopold Museum.
"I hope that the Museum of Modern Art will win," said Klaus A. Schroder, the managing director of the Leopold Museum, reached in Vienna. "This is a sensitive case, but it is not one for the District Attorney of New York. We must all get out of that situation."
Since the dispute arose in late December, the case has become a cause celebre in Austria and a matter of deep concern in the international museum world, which is highly dependent on the borrowing of art.
The Modern, in explaining its challenge, asserted its concern for resolving ownership issues surrounding these and other paintings suspected of having been stolen by the Nazis. But it said in a statement, "The merits of the claims relating to these paintings do not require their presence in this venue, and the issuance of the subpoena poses grave risks to the ability of all museums in New York to undertake the kind of exhibitions which are so important and beneficial to the people of New York and the state's visitors."
The Modern's motion to quash cited several rulings, including a 1984 decision in Stern v. Morgenthau, a case in which the District Attorney sought material gathered by the State Commission on Judicial Conduct. The Court of Appeals quashed his subpoena, noting that the State Legislature had the power to exempt certain material from a grand jury inquiry and had implicitly done so in a statute, the motion said.
In Vienna, much of the initial sympathy for the families' claims evaporated after Mr. Morgenthau's subpoena. Directors of the Leopold Museum had offered to create an international fact-finding tribunal, whose members would be approved by the families, to adjudicate the paintings' ownership; after the subpoena they withdrew the proposal.
In meetings over the last week, the directors also decided not to negotiate a settlement with the families but to take their chances in court if the paintings are not returned. They maintain that the issue is a civil matter, not criminal.
But if the paintings are returned, the Leopold Museum plans to resurrect the fact-finding tribunal in modified form, with members chosen by the Austrian Government in consultation with the World Jewish Congress. However, Mr. Schroder said, the tribunal would not decide what was to be done with the paintings. "The Leopold Museum and the Austrian Government would decide what to do," he said. "It could happen that there is a moral case as well as a legal case. The Austrian Government knows how to handle what is wrong and what is right."
With both sides researching the provenance of the paintings, more information is emerging nearly every day. Recently, Klipstein & Kornfeld, the Swiss gallery that sold "Dead City" in 1956 to a Manhattan gallery, which then sold it to Dr. Leopold, identified the woman it bought the painting from as Mathilde Lukacs. She was a sister-in-law of Fritz Grunbaum, the relative of the Reifs who owned the painting and died in Dachau in 1941. The Reifs say they have not seen documentation of that assertion despite requests to Klipstein & Kornfeld.
The paintings may not go back to Vienna even if Judge Drager throws out the subpoena. This month the United States Customs Service began requesting documents and other information from the Reifs and the Bondis in preparation for seizing the paintings as stolen property. Customs officials declined to comment, but lawyers said that Customs agents, employed by the Federal Government, would not be bound by the state law against seizure.