Antisemitic Acts and Property Damage

One of the more memorable clients from my pre-Aliyah law practice was the late Murray J. Schlam, an internationally reputed sculptor and painter, and a Fellow of the Royal Society of Arts. After arriving in America from Europe shortly before the Nazi takeover, Murray, who was technically a German citizen, avoided deportation as an enemy alien by enlisting in the United States Army; he served in North Africa and Italy. For a while, he was the artist in residence at the famed Grossinger’s resort in the Catskills.

Despite his need to use crutches on account of service-connected injuries, Murray carried on with his artistic career. In handling Murray’s legal issues, I frequently accommodated his disability by conferring with him in his own home/studio to relieve him of the trouble of having to travel. It was a delightful privilege to do my lawyering in what effectively amounted to a museum of his artwork. Every time I visited him he had another story to tell me about one or more of his sculptures or paintings. For Murray’s part, he greatly appreciated that I had a high level of information regarding the world of art, owing to my upbringing by a mother who had been an artist in her own right and whose social circle included many Philadelphia artists.

Some of Murray Schlam’s works are to be found in Israel, in private hands or otherwise. One case of his I handled was about a sculpture that now should be on public display in Israel, but is not because it never came into existence. Some explanation is in order because Murray’s insurance carrier and, I daresay, the insurer’s counsel, were quite confused about the matter.

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In the mid-1980s, Murray Schlam had created a sculpture approximately one meter in height called “Monument of Peace,” which he had kept in his home as an interior decoration item along with his other works. The sculpture would subsequently be sold to a philanthropic couple who donated it to Huntington Hospital in Huntington, New York, where it was put on display.

Before that first “Monument of Peace” sculpture was ultimately delivered to Huntington Hospital, Murray had negotiated a contract with Rafi Hochman, the Mayor of Eilat, whereby a three-meter high bronze enlargement of the “Monument of Peace” sculpture would be made by Murray and delivered to Eilat at the cost of $125,000, where it would be put on display in a public park. As detailed below, this three-meter bronze enlargement was never made, and accordingly is not on display in Eilat (or anywhere else).

In order to make the bronze enlargement to deliver to Eilat, Murray had a contract with A. P. Bronze Casting in Netanya, who, it was planned, would make the bronze casting using a mold made from a three-meter plaster of Paris enlargement which would be made by Murray and some assistants on Long Island, and then shipped to Netanya. Per that contract, Murray would pay $96,000 to A. P. Bronze Casting to transport the plaster enlargement to Netanya, make the 3-meter bronze casting, and ship it to Eilat. The plaster enlargement was made at a casting shop on Long Island in 1991 and remained there for approximately two years while Murray and Rafi Hochman, in his capacity as Chairman of the Board of the Eilat Foundation, together worked to raise funds from benefactors to underwrite Murray’s commission.

In 1993, after adequate funding was raised, Murray arranged to have the three-meter plaster enlargement shipped to Netanya. When the professional riggers arrived at the casting shop, they discovered that the plaster enlargement had been placed outdoors and, having become fragile from exposure to the elements, was disintegrating in their hands as they attempted to prepare it for shipment.

Murray reported the matter to the police and filed a claim with his insurance carrier. The circumstances of the plaster enlargement’s removal from its indoor location where Murray and casting shop personnel created it to the outdoor location where the riggers found it are not clear. There accordingly were ambiguities in the police report and in the statements taken by the insurance adjuster.  The insurance carrier denied Murray’s claim for damages.  Murray then engaged me to contest the insurance carrier’s denial of his claim.

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As insurance carriers’ lawyers are wont to do, the attorney representing Murray’s insurer asserted a plethora of reasons why the denial of Murray’s claim was appropriate. In addition to other factual ambiguities, insurance counsel’s papers in the case belied confusion between (1) the original one-meter bronze sculpture; (2) the 3-meter plaster of Paris enlargement that was the subject of Murray’s insurance claim; and (3) the 3-meter bronze casting that never was created.

Cutting through all of the litigation technicalities, the main issue was whether, as the insurer insisted, the loss of the plaster enlargement was not covered under the insurance policy. As only an artist or art aficionado can do, Murray pointed out to me that the policy explicitly listed “vandalism” as a covered peril. From the ravages perpetuated by the Vandals upon the Roman Empire, the word “vandalism” has specific applications to works of art.

And so, I wrote a scholarly brief to support the proposition that the destruction of the 3-meter plaster enlargement was an act of vandalism. The brief I wrote first cut off at the pass the relevance of the cases insurance counsel would likely cite, in which vandalism claims were rejected by the courts. In every one of those cases, the operative insurance policy contained a definition of “vandalism,” while Murray’s homeowners policy was totally devoid of such a definition.

I quoted from Murray’s Adeline Art Dictionary the definition of vandalism:

“The destruction or ruin of works of art.  The term was originally applied to the destruction of works of art by the Vandals, a German people who laid waste Rome, Gaul, Spain, and Africa in the early centuries of the Christian era.  The expression is now used generally to denote any action whereby art suffers.  For instance the useless or clumsy restoration of a picture is an act of vandalism [emphasis added].”

I also quoted from the Grand Larousse Encyclopédique:

“Vandalisme:  Etat d’esprit qui porte à détruire les belles choses, en particulier les œuvres d’art” (never mind that French was my absolute worst subject in junior high school; the French teacher told me that she would never have me in her class again).

Anticipating that insurance counsel might contend that the plaster enlargement was not a work of art, I noted that the plaster model of Jacques Lipchitz’s “Prometheus Strangling the Vulture” was displayed by the Philadelphia Museum of Art before two bronze castings were made from it, one now in front of the Museum in Philadelphia and the other in Minneapolis (the plaster model, being in Philadelphia at the time, fortuitously was unscathed by the 1952 fire in New York that destroyed all of Lipchitz’s other works in progress at the time).

I also listed several examples from Sotheby’s Art at Auction of sketches, photographic negatives, and similar preparatory works by artists, sculptors, and photographers, each of which commanded thousands of dollars on the auction block, including one for an unexecuted tapestry by Il Cigoli for which the auctioneer’s hammer fell at $63,800 at Christie’s in 1991.

I finished writing that brief on Friday, 19 January 1996, planning to file it in the courthouse in Mineola (and mail a copy to insurance counsel) when I planned to drive by the coming Monday.  Alas, that was not to happen, because the next day, 20 January 1996, Murray Schlam passed away while taking his Shabbat nap.  The next day, I attended Murray’s funeral.  Thus ended the litigation and my professional involvement in the case of the sculpture that never was.

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But not all acts of vandalism necessarily entail destruction of artwork. Vandalism acts that fit the term as it is construed by insurance carrier attorneys take their toll, and have increased in severity and cost over the years.  In 2022, the U.S. Department of Justice’s Bureau of Justice Statistics redesigned its National Crime Victimization Survey; updates to the version it had used for 30 years included the addition of vandalism as a crime screener.

More to the point, the Combat Antisemitism Movement has reported that vandalism was involved in more than one-third of the compiled anti-Semitic incidents that occurred in August 2023.

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It now is no secret that anti-Semitism is a growing problem on America’s college campuses; previous blogposts of mine on these pages have highlighted this disturbing trend (including at my own alma mater).  Various campuses of the City University of New York have been implicated in the problem, many to an even greater extent than Queens College CUNY, where I taught for more than 20 years (and bagged a second Masters Degree).

The governing boards of educational institutions have the implicit responsibility to protect the buildings on their campuses from damage.  In New York, that responsibility is explicitly set forth in statute.

New York Education Law § 6206(6) provides that the City University Board of Trustees

  “shall control and keep up the buildings and grounds occupied and used by institutions and units controlled by it; allow and regulate the use, gratuitously or otherwise, of such property for other than college or university purposes and prescribe the fees, if any, that persons, associations or corporations allowed to use it may charge ….”

New York Education Law § 6306(5) analogously provides that New York State community college boards of trustees

“shall have the care, custody, control and management of the lands, grounds, buildings,  facilities and equipment used for the purposes of such college and of all other property belonging to such college and used for carrying out its purposes, and [also] shall have power to protect, preserve and improve the same.”

College and university trustees and administrators who undertake only feeble measures on their watch to combat antisemitism are remiss in their duties to students and taxpayers; they need to be held accountable for their lax performances.