Legal Malpractice

German Jurisprudence, the Nazis and Legal Malpractice

By (Andrew Lavoott Bluestone)

For those who grew up in the shadow of WWII, the Nazis were a foreboding presence.  The war was over for the parents, and children learned of the war, the atrocities and the aftermath.  For the family in this case, Matter of Jacobsen ;2010 NY Slip Op 50816(U) ;Decided on May 10, 2010
Sur Ct, Monroe County , even in upstate NY, the war has never really ended.  Now, after a trip to the SDNY, the 2d Circuit and back, a legal malpractice portion ends.
 

"This case primarily comes before this Court to determine which of the parties is entitled to seek restitution for assets that were confiscated by the Nazi party in Germany in 1939. The Decedent, Gabriella Jacobsen, and her sister, Marianne Reitz Baer, were each entitled to half of the estate of Clara Kirstein, their mother, upon Clara's death in Leipzig, Germany in 1939. However, upon Clara's death, those assets ("the Kirstein Assets") were confiscated from the estate, and therefore did not pass to Gabriella and Marianne. Gabriella died on December 8, 1957 in Monroe County, New York survived by her husband, Erich Jacobsen, an infant son, Godfrey Jacobsen, and other family members, including the Petitioner, Thekla Stein Nordwind, and the remaining surviving distributees, Greta Hoerman, Peter Franke-Ruta and Michael Franke (collectively "the Nordwind Parties").[FN1] Gabriella's will, which left her estate to her husband, Erich Jacobsen, was admitted to probate on January 21, 1958. Erich Jacobsen died on December 16, 1977. Pursuant to Erich's will, his residuary estate passed to his son, Godfrey Jacobsen. Godfrey Jacobsen died on August 10, 1980, and left his residuary estate to Christel Gauger, who was not a blood relative of Godfrey or his parents, Gabriella and Erich Jacobsen. Christel Gauger died on September 23, 2008, a resident of Germany, and Dr. Michael Gauger ("Dr. Gauger" or "Respondent") was appointed as the German equivalent of her Executor and residuary beneficiary. Thekla Nordwind was appointed administrator of the Estate of Gabriella Jacobsen by this court on July 7, 2009 in order to pursue the Kirstein Assets.
 

No claim for restitution for the Kirstein Assets was filed by the June 30, 1993 deadline, so recovery was later sought through the Claims Conference, an organization that established a Goodwill Fund for those who did not file claims before the GPCA deadline. The Nordwind Parties retained an attorney, David J. Rowland, Esq., to file a claim with the Claims Conference on their behalf. Through circumstances that are not before this Court, in the end Mr. Rowland filed a claim on behalf of Ms. Gauger while arguably still representing the Nordwind parties, and obtained an Erbschein (a German certificate of inheritance) from the German Courts that established Ms. Gauger's rights to pursue reparations for the Kiersten Assets due to her being Godfrey Jacobsen's proper "legal successor" pursuant to the terms of the GPCA.

The issue sought to be determined by this Court, i.e., whether the Nordwind Parties are entitled to the right to pursue reparation under German Law, has been previously decided by the United States District Court for the Southern District of New York, in Nordwind v. Rowland, 2007 WL 2962350 (S.D.NY Oct. 10, 2007) (Pogue, J., sitting by designation) (the "Federal Court Action"). The Southern District's decision was later affirmed by the United States Court of Appeals for the Second Circuit (Nordwind v. Rowland, 584 F.3d 420 (2d Cir. 2009), and the Nordwind Parties' petition for panel rehearing before the United States Court of Appeals for the Second Circuit was denied (Order, Docket Number 07-4862-cv, (Dec. 10, 2009)). Despite the fact that the issue currently before this Court was raised in the context of the malpractice action against Mr. Rowland, the District Court fully addressed, under both German and New York law, whether the Nordwind [*3]Parties had an entitlement to the Kirstein Assets that originally would have gone to Gabriella Jacobsen.

The District Court completely determined the issue presented by the instant petition based both on German and New York law such that there is no ruling this Court could make on this matter that would not be barred by collateral estoppel."

Full post as published by New York Attorney Malpractice Blog on May 13, 2010 (boomark / email).