On November 24, 2025, Justice Cohen of the New York County Commercial Division issued a decision in Greason v. Nahmad, 2025 NY Slip Op. 34558(U), holding that a 75-year old handwritten memorandum was admissible under the ancient documents exception, explaining:
[T]he Court finds that Plaintiff has made a sufficient showing that the ancient documents exception to the hearsay rule applies to the Note. Under that exception, a record or document which is found to be more than 30 years of age and which is proven to have come from proper custody and is itself free from any indication of fraud or invalidity proves itself. Further, if the genuineness of an ancient document is established, it may be received to prove the truth of the facts that it recites. As the Court of Appeals long ago observed, it is usually impossible to establish a very ancient possession of property by the testimony of persons having knowledge of the fact, and when a deed forming part of a chain of title is so ancient that there can be, in the nature of things, no living persons who can testify to acts of ownership by the grantor or grantee, it may be received in evidence without such proof. In the present context, the ancient document exception essentially relieves Plaintiff from having to prove the Note is a business record of the producing party because, due to the passage of 75 years since its creation, there are no witnesses available to provide an evidentiary foundation.
The record indicates that the Note was part of the archives and files maintained by the Wildenstein entities, there is no indication of fraud or invalidity, and it is more than thirty years old, as it states it was filed in 1950 (not long after the conclusion of WWII). Plaintiff submits evidence from which the jury could conclude that the Note was written by Doris Koren while she was working as a secretary for Wildenstein & Co.; that Ms. Koren and George Wildenstein traveled to France in 1950; that it was a regular task of Ms. Koren to manage photographic materials and make notes on them; and that the Note remained in Wildenstein’s files (and the files of related entities) until being produced in this case. Therefore, there is evidence of proper custody and reliability. The jurors will hear the foundation evidence offered by Plaintiff regarding the Note, as well as any evidence tendered by Defendant to rebut it, which they can evaluate and decide what weight (if any) to give the Note at trial. In promulgating the HEAR Act, Congress found that (1) the Nazis confiscated or otherwise misappropriated hundreds of thousands of works of art from Jews and others they persecuted, and that many works were never reunited with their owners; and (2) the Nazi victims and heirs have sought legal relief to recover artwork, but they must painstakingly piece together their cases from a fragmentary historical record ravaged by persecution and war. The tragic consequences of the Nazi occupation of Europe on the lives, liberty and property of the Jews continue to confront us today. We are informed by the intent and provisions of the HEAR Act which highlights the context in which plaintiffs, who lost their rightful property during World War II, bear the burden of proving superior title to specific property in an action under the traditional principles of New York law. We also note that New York has a strong public policy to ensure that the state does not become a haven for trafficking in stolen cultural property, or permitting thieves to obtain and pass along legal title. One of the stated purposes of the HEAR Act is to ensure that claims to recover art lost in the Holocaust era are resolved in a just and fair manner.
However, as discussed at oral argument, the Note cannot be offered as evidence that the Painting was stolen (there is no suggestion that the writer would have known that one way or the other), but instead at most that the “Stettiner family” in or around 1950 was claiming that the Painting was stolen and were looking for it in America. The Note may also be offered for the non-hearsay purpose of responding to Defendants’ affirmative defense that they did not know,and with the exercise of reasonable care could not have known, of the Plaintiffs’ purported claim to the Painting.
(Internal quotations and citations omitted).