OPINION AND ORDER This lawsuit concerns a dispute over the ownership of an artwork titled Centralia Madonna by the renowned American artist Charles White (the “Artwork”). Plaintiff and Counterclaim Defendant Howard University (“Howard”) brings claims for replevin for the return of the Artwork and to quiet title in it and for a declaratory judgment that it is the rightful and true owner of the Artwork. Dkt. No. 1. Defendants and Counterclaim Plaintiffs Larry and Virginia Borders (the “Borders”) bring a counterclaim for a declaratory judgment that they have the proper right, title, and interest in and to the Artwork.1 Dkt. No. 6. By opinion and order of March 1, 2022, the Court granted Howard’s motion for summary judgment in part and denied it in part. Dkt. No. 58. The Court determined that Howard’s claims were timely under the applicable New York statute of limitations, id. at 25, and that Howard had established its claim to title in the Artwork because it had made a threshold showing of an arguable claim to ownership and the Borders had presented no evidence that would satisfy their burden to prove that the Artwork left Howard’s possession lawfully, id. at 26-31. The Court also granted summary judgment in favor of Howard on all but one of the Borders’ affirmative defenses. Id. at 36-40. The Court, however, denied Howard’s motion for summary judgment on the Borders’ claim of laches, finding that there existed triable issues regarding both whether Howard engaged in unreasonable delay in bringing its claims and in whether the Borders suffered prejudice as a result of that delay. Id. at 31-35. In September and October 2022, the Court conducted a three-day bench trial on the claim of laches. This Opinion and Order constitutes the Court’s findings of fact and conclusions of law for purposes of Federal Rule of Civil Procedure 52(a)(1). The Court received testimony on direct examination by declaration of the following witnesses: Larry Borders, Virginia Borders, Sotheby’s, Inc. (“Sotheby’s”) employees Kayla Carlsen and Katharine Richardson, Howard employees Scott Baker, Lisa Farrington, and Lisa Jones Gentry, and Howard’s expert Russell Panczenko. The Court also received testimony from Elizabeth Pisano, a former Sotheby’s employee, through deposition designations. To the extent any statement labeled as a finding of fact is a conclusion of law, it shall be deemed a conclusion of law, and vice versa. FINDINGS OF FACT I. Charles White The Artwork is a 1947 drawing on paper by a renowned African American artist named Charles White. See PLT Ex. 53. White was one of the most important black artists of the 20th century. Trial Transcript (“Tr.”) 192. He was a painter, printmaker, and teacher who died in 1979. PLT Ex. 53. His work is included in the permanent collections of the Los Angeles County Museum of Art, the Metropolitan Museum of Art, the Whitney Museum of American Art, the Newark Museum, and the Santa Barbara Museum of Art. See Charles White, National Gallery of Art (last visited Oct. 11, 2022), https://www.nga.gov/collection/artist-info.3394.html. One of his pieces, Progress of the American Negro, was loaned by Howard to the Whitney Museum of American Art. Tr. 130. Another of his pieces, Native Son, was loaned by Howard to the Metropolitan Museum of Art. Id. He is considered to be a very important artist and the market value of his work recently has increased exponentially. Id. at 65. He was an artist-inresidence at Howard in 1945. PLT Ex. 3. II. Howard’s Possession of the Artwork Howard is a renowned Historically Black College and University (“HBCU”). Panczenko Decl. 74. At present, it has more than sixty buildings on its sprawling campus. Tr. 136-137. The Howard University Gallery of Art (the “Gallery”) was founded on the principle that everyone, but especially young students, “should have the opportunity to visit and to enjoy exposure to good works of art.” Panczenko Decl. 68; PLT Ex. 46 at Howard1001. It describes itself as a “a learning laboratory” whose aim “historically, has been to make its collection accessible on a permanent basis to the University community.” Panczenko Decl. 68; PLT Ex. 1 at p. 2. It also hails itself as “a national and historic forum for artists of African descent” and as “a pedagogical resource for curriculum concerned with sociopolitical, cultural, and historical issues related to Africa and the African Diaspora.” Panczenko Decl. 68; PLT Ex. 1 at 2. Consistent with that mission, the Gallery not only displays its artworks in the Gallery’s exhibit and display areas, but through the more than sixty buildings across Howard’s campus. The primary reason for this is to ensure that students and faculty have the ability to observe, learn from, and enjoy the artworks and be inspired by them. Farrington Decl. 13. The Gallery currently has over four thousand artworks. Id. 15. The Artwork is a historically significant and highly valuable work of art by White. Tr. 192. It was acquired by Howard in 1947, two years after White completed his artist-in-residency there. See PLT Ex. 2 at HOWARD00012; PLT Ex. 3; PLT Ex. 33 at HOWARD00932; Farrington Decl. 39. Its acquisition is reflected in valuation analyses and an inventory prepared by Howard, which give it a number 47 followed by a D, signifying that it was a drawing acquired by Howard in the year 1947. See PLT Ex. 2 at HOWARD00012. A 1947 article in the Washington Post on an exhibition of White’s works at the Barnett-Aden Gallery in Washington D.C. reports that Howard owned it. PLT Ex. 3. The Barnett-Aden Gallery is no longer in operation. Tr. 117. From 1946, around the time the Artwork was acquired, and until his retirement in 1976, the curator of the Gallery was Dr. Albert Carter. Id. at 99, 104. Hughie Lee Smith was the Chair of Howard’s Art Department and the Director of the Gallery until 1970, id. at 115, and was replaced by Dr. Jeff Donaldson who served in that role until 1976, id. at 107. Carter was replaced by Alden Lawson who served as Curator of the Gallery from 1976 to approximately 1987. Id. at 100, 115. At that time, management of the Gallery was taken over by a Director named Tritobia Benjamin, who served in that capacity for a little over twenty years. Id. at 100, 116. Carter, Smith, Donaldson, Lawson, and Benjamin are no longer alive; each passed away prior to 2020, the year this action was commenced. Id. at 114-16, 192. White also passed away prior to 2020. Id. at 116. In 1992, Baker became Assistant Director of the Gallery, a position he held until mid-2022. Id. at 98-99. The Gallery is thinly staffed. For a portion of the time relevant to this case, including throughout the 1970s, it had only a single full-time employee — the curator, Carter — who served under the Chairperson of the Art Department, Panczenko Decl. 77, and from 1976 until 2019, there was no more than one student worker for any sustained portion of time, Tr. 134. After Carter’s retirement and throughout the period culminating in May 2020, the Gallery continued to have no more than one or two full-time staff members. Panczenko Decl. 78. The Gallery has never had a full-time Director and each Director during the relevant period has fulfilled multiple roles and worn many hats, including substantial teaching and publishing responsibilities as well as administrative responsibilities related to either the Art Department or the Division of Fine Arts, in addition to their work with the Gallery. Id. 81. Carter prepared a valuation report of the Gallery’s permanent collection in 1964. DT Ex. 4. The valuation listed that Howard had 231 oil paintings in its collection, of which ten were on loan, with a total valuation of $104,052.00. Id. at HOWARD00591. The valuation of the oil paintings ranged from $50.00 at the low end, id. at HOWARD00584, to $15,000 at the high end, id. at HOWARD587. The 1964 valuation also listed 47 watercolors ranging in value from $10 to $1,000 with a total value of $2,880, id. at HOWARD00595-96, 117 sculptures ranging in value from $5.00 to $6,000 with a total value of approximately $30,588, id. at HOWARD00597-600, and 87 drawings ranging in value from $5 to $300 for a total of a little under $3,000, id. at HOWARD00601-602. The White Centralia Madonna was valued at $75.00. Id. at HOWARD00602. In December 1969, the Gallery agreed to loan the Artwork to the Museum of Fine Arts in Boston for an exhibition to be held from February 9 to March 10, 1970. PLT Ex. 7; DT Ex. 28. This loan of the Artwork is reflected in a written loan agreement, see PLT Ex. 7; DT Ex. 28, and documented in the Annual Report of the Howard University College of Fine Arts for the 1969-70 academic year, see PLT Ex. 39 at HOWARD00952. There are no other records of any loan of the Artwork by Howard to a third party. In 1971, Carter submitted a revised valuation report of the permanent collection of the Gallery which he sent to Donaldson. DT Ex. 5. The valuation listed 236 oil paintings, 53 watercolors, 584 sculptures (including ceramics and handicrafts), and 61 drawings. The total valuation of the collection was $246,207 which — when added to the Locke Collection — summed to $281,207. Id. at HOWARD00609. The Artwork was valued at $1,000, id. at HOWARD00633, and was one of the higher value items in the collection, id. On the first page of the 1971 valuation report, Carter wrote: “for 25 years I have been constantly adding to my many notes, acquisition sheets, record cards, Daily Log and photographs attempting to keep as accurate a record as possible.” Id. at HOWARD00608. Other than his notebooks, none of those materials survives to the present day. Tr. 110-11, 175. In 1976 to 1977, Carter prepared an inventory of the Gallery’s holdings titled “Holdings of the Howard University Gallery of Art” (hereafter, “1976 Carter Inventory” or “Inventory”). Farrington Decl. 30; PLT Ex. 2. It lists 269 oil paintings, 58 watercolors, 113 drawings, among other works of art. PLT Ex. 2 at HOWARD00014, HOWARD00108, HOWARD00123. The list contains columns for the name of the artist, the title, medium, and size of the work, its condition and origin, the race of the artist, its origin, and its valuation; the list also contains a “Misc.” column which primarily identifies the location of the artworks on Howard’s campus. Id. In the 1976 Carter Inventory, the Artwork is valued at $1,000. Id. at HOWARD00012-13. No drawing has a higher valuation, although one other drawing has an equal valuation. Id. Some oil paintings have a higher valuation but not many of them. Id. at HOWARD00108-123. In the “Misc.” column for the Artwork, Carter noted “Loan (?).” Id. at HOWARD00012-13. The Artwork is the only work in the Inventory with that identification. Tr. 112, 114. Stolen artworks from the University’s collection were also identified in the Inventory. See, e.g., id. at HOWARD00117. The Artwork is not listed as stolen in the 1976 Carter Inventory. Id. at HOWARD00012-13. The last time there is evidence the Artwork was seen at Howard was in January 1973. Baker Decl. 11. Baker was a graduate student at Howard from 1972 to 1974 pursuing a Master of Fine Arts degree and had a part-time position as a work-study student worker for the Gallery. Id.
4-5. For his master’s degree, Baker worked on a graduate thesis, comprised of creating a catalogue of works of art in the Gallery’s collection that had been created by Black artists. Id. 9; see PLT Ex. 5. As part of his catalogue, Baker “personally viewed, examined, and documented the Artwork on the campus of Howard University.” Baker Decl. 11. Baker saw the Artwork on Howard’s campus on two occasions in January 1973: (1) in a storage room of the Gallery (located on Howard’s campus), and (2) on what he believes was the next day, in the office of the Gallery’s then-Curator, Carter, in Room 1010 of Childers Hall, which today is Baker’s office. Id.
