DeWeerth v. Baldinger

MEMORANDUM ORDER

(RULE 60 APPLICATION)

I

This action concerns plaintiffs claim to the ownership of a painting by Claude Monet entitled “Champs de Ble a Vetheuil” (the “Monet”), which was stolen from plaintiff in 1945 and purchased in good faith by the defendant in 1957 from third-party defendant Wildenstein & Co. On April 20, 1987, after a bench trial, I issued a decision including findings of fact and conclusions of law in this matter and ordered that judgment be rendered for the plaintiff requiring that the painting be returned to the plaintiff. DeWeerth v. Baldinger, 658 F.Supp. 688 (S.D.N.Y.1987) (the “April 20 Order”) 1 As discussed in greater detail infra, that decision was subsequently reversed by the Court of Appeals. DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir.1987), cert. denied 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (the “December 30 Order”). The Court of Appeals found that in this diversity case I had misapplied New York law.

Plaintiff has now moved for relief under Rule 60, Fed.R.Civ.P. The factual findings which I made with respect to the trial of this matter are necessary to consideration of plaintiffs motion and are repeated in part II below for convenience.

For the reasons set forth below, I conclude that the Rule 60 motion must be granted. In summary, the highest court of New York State has now ruled in Guggenheim v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991), subsequent to the 1987 Second Circuit decision, that state law requires — and, according to the state court ruling, would previously have also required — a result which is consonant with my original determination. Because of the primacy of the state courts in determining interpretation of state law under principles of federalism, as discussed in greater detail below, the Guggenheim decision, albeit stating that it also reflects prior law, is a new development justifying Rule 60 relief.

The issue of laches, also discussed in greater detail below, was mentioned but left open in the 1987 Second Circuit decision, and raised anew by the defendant. The plight of good faith purchasers of art is an important factor in evaluating stolen art cases, as is the need to deter theft of art destined for the New York market. Both interests are relevant to balancing prejudice and reasonableness. Here, however, a nonbankrupt third party defendant from whom defendant purchased the stolen art remains in the case. Where upstream purchasers • failed to exercise due care in purchasing, including examining the placement of an artwork in its context, its so-called “provenance,” each defendant can, of course, follow up the chain of prior custody.

While in the wake of Guggenheim, supra, the Second Circuit declined to alter its mandate upon motion, Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976) suggests that this may have been because the district court rather than the appellate court is the appropriate initial forum for seeking redress due to post-decisional changes in law or facts. Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 52 (2d Cir.1985), cert. denied 474 U.S. 826, 106 S.Ct. 86, 88 L.Ed.2d 70 (1985) also indicates that the district court is the appropriate tribunal where there is, as I find here, a “material change of circumstances ” — in this instance because of the ruling of the State’s highest court contrary to the 1987 federal appellate decision, and the state Court’s assertion that its position reflects prior state law as well. 2

*542 II

There follows a reiteration of certain factual findings contained in my decision of April 20, 1987:

“The Monet is an impressionistic depiction in oil of a wheat field, a village and trees near Vetheuil, France. It measures 65 centimeters by 81 centimeters, and is signed and dated “Claude Monet ’79”. Mrs. DeWeerth’s father, Karl von der Heydt, purchased the Monet in or about 1908, and he thereafter kept it in his house in Bad Godesberg, West Germany. Plaintiff inherited the Monet from her father after his death on August 9, 1922, in the division of the works and objects of art in his estate. With the exception of the years 1927 to 1929, when the Monet was kept in her mother’s house, plaintiff kept the Monet in her residence in Wuppertal-Elberfeld from 1922 until August 1943, where it was on display on a wall next to a sculpture by Auguste Rodin, also inherited from her father. This sculpture is still in plaintiff’s possession at her West German residence, and plaintiff has submitted a 1943 photograph showing the Monet and the Rodin displayed together in her residence. From that time until the present, she neither sold nor otherwise disposed of the Monet, nor did she entrust the Monet to anyone else to sell or otherwise dispose of it.

“In August 1943, during the Second World War (the “War”), Mrs. DeWeerth sent the Monet, along with the Rodin sculpture and other valuables, by van to her sister Gisela von Palm (now deceased) in Oberbalzheim in Southern Germany, for safekeeping. Although the van arrived, plaintiff never saw the Monet again. In the fall of 1945, Gisela von Palm informed plaintiff of the disappearance of the Monet from Mrs. von Palm’s house in Oberbalzheim. There is no direct evidence as to what caused the disappearance of the Monet. American soldiers were quartered in the house after the close of the War in 1945, and it was after they had left that its disappearance was noted. I infer that either one of those soldiers, or someone else, stole the painting from the von Palm house where it had been sent for safekeeping.

“Mrs. DeWeerth was approximately 50 years old when she learned of the Monet’s disappearance. Subsequently she made efforts to locate it. In 1946 she reported the loss of the Monet to the military government then administering the Bonn-Cologne area after the end of the War. In 1948 she solicited the assistance of her lawyer, Dr. Heinz Frowein, in attempting to find and recover it. Plaintiff also made inquiries in 1955 of one Dr. Alfred Stange, known to Mrs. DeWeerth as an art expert. In 1957 she reported the Monet as missing to the Bundeskriminalamt (the West German federal bureau of investigation) in Bonn. All of these efforts to find the Monet were unsuccessful.

“By December 1956 however, the Monet had found its way to the United States through Switzerland. Third-party defendant Wildenstein & Co., Inc. (“Wilden-stein”), an art gallery in New York City, appears to have acquired the Monet on consignment from Francois Reichenbach, an art dealer from Geneva, Switzerland, in about December 1956. From December 1956 to June 1957, Wildenstein had possession of the Monet in New York. A Wildenstein record shows a 1962 payment, or credit, to Reichenbach, evidently for the Monet.

“In June 1957, Wildenstein delivered the Monet for inspection to Mrs. Balding-er at her residence at 710 Park Avenue, New York, New York. Mrs. Baldinger, after several days, purchased the Monet in good faith and for value from Wilden-stein on or about June 17, 1957.

“After its purchase by Mrs. Baldinger, the Monet was publicly exhibited only on two occasions. Mrs. Baldinger exhibited the Monet at a benefit held in the Waldorf-Astoria Hotel in New York City, *543 from October 29 to November 1, 1957, and loaned it to Wildenstein for display during a Wildenstein exhibition entitled “One Hundred Years of Impressionism” held April 2 to May 9, 1970 at its gallery in New York City. At the close of this exhibition, Wildenstein returned the Monet to Mrs. Baldinger. Except for those two exhibitions, Mrs. Baldinger maintained the Monet exclusively in her residence at 710 Park Avenue, New York City, from June 1957 to the present date.

“There are only four published references to the Monet in the art literature: two of them are in catalogues in connection with the exhibitions already cited, and the other two are in publications with which Wildenstein was apparently connected:

“(1) Claude Monet: Bibliographie et Catalogue Raisonne, Vol. 1 1840-1881. Published by la Bibliotheque des Arts, Lausanne, Paris; introduction by Daniel Wildenstein; collaborators Rodelphe Walter, Sylvie Crussard, and the Foundation Wildenstein, 1974, Geneva; painting no. 595.

“(2) The exhibition catalogue One Hundred Years of Impressionism, A Tribute to Durand-Ruel, A Loan Exhibition, April 2 — May 9,1970, Wilden-stein Gallery, New York; painting no. 43.

“(3) Monet: Impressions, Daniel Wil-denstein, published in New York, 1967, Library of Congress call no. ND553.M76W5313.

“(4) The exhibition catalogue Festival of Art, October 29 — November 1, 1957, Waldorf-Astoria Hotel, New York; item 125.

“In or soon after July 1981, plaintiff, through the efforts of her nephew Peter von der Heydt, discovered that the Monet had been exhibited in 1970 at the aforementioned Wildenstein loan exhibition. Plaintiff thereafter retained counsel in New York in 1982 to determine whether Wildenstein knew the identity of the present possessor of the Monet. When Wildenstein refused to disclose the possessor’s identity or the Monet’s whereabouts, plaintiff commenced a proceeding in November 1982 against Wildenstein in New York State Supreme Court seeking “disclosure to aid in bringing an action.” N.Y.C.P.L.R. § 3102(c). On December 1, 1982, the State Supreme Court found for the plaintiff, ordering Wildenstein to reveal the identity of the possessor. Plaintiff thereafter learned that defendant Baldinger possessed the Monet.

“By letter to Baldinger dated December 27, 1982, plaintiff demanded return of the Monet. By letter dated February 1, 1983, Baldinger refused the demand. This action ensued.”

April 20 Order, 658 F.Supp. at 690-692.

Ill

In my April 20, 1987 decision, I inferred that the Monet had been stolen from Frau von Palm’s home in Germany and subsequently passed through a series of parties to Mrs. Baldinger. Applying New York law, which holds that not even a bona-fide purchaser can acquire valid title from one who acquires title from a thief, I held that Mrs. DeWeerth had a right of title to the Monet superior to that of Mrs. Baldinger. I also held that plaintiff had timely commenced her suit pursuant to the three year limitations period applicable to actions seeking the recovery of stolen property provided by New York Civil Practice Law and Rules § 214 (“Section 214”). It was in accordance with these findings that judgment was entered for the plaintiff, directing that the Monet be returned to her.

In reversing the judgment, the Court of Appeals held that plaintiff’s claim was barred by Section 214’s three year limitations period. The Second Circuit noted that under New York law, where a plaintiff seeks recovery of a stolen chattel from one who innocently, purchases such property, Section 214’s limitations period does not begin to run- until a demand for the return of the property has been made and that demand is refused. The Court also noted that New York law required that a plaintiff make such a demand within a reasonable period of time subsequent to learning the identity of a chattel’s current possessor. In these respects, the Court did not disturb *544 the legal conclusions which I had arrived at in my decision.

The Court then went on to hold that a plaintiff seeking the recovery of stolen property in New York had “a duty of reasonable diligence in attempting to locate stolen property” and that absent a showing that such diligence had been exercised, a chattel owner's otherwise timely suit would b,e time barred. 836 F.2d at 108. While acknowledging that this due diligence requirement had not previously been applied by the New York courts, the Court determined that its new rule was a justifiable application of New York law for three reasons.

First, the Court said that New York had a “policy of favoring the good faith purchaser” and of discouraging stale claims. Id. at 109.

Second, it noted that its decision brought the law in New York into harmony with the law of other jurisdictions. New York courts had taken a uniquely pro-original owner position on issues in which the rights of original owners were balanced against those of subsequent purchasers. This minority position, the Court of Appeals pointed out, put New York’s demand and refusal rule at odds with the rules applicable in other states. New York law needed to be made more harmonious with the law applicable in other jurisdictions:

Other jurisdictions have adopted limitations rules that encourage property owners to search for their missing goods. In •virtually every state except New York, an action for conversion accrues when a good-faith purchaser acquires stolen property; demand and refusal are unnecessary. (citations omitted) ... It is true that New York has chosen to depart from the majority view. Nevertheless, the fact that plaintiffs interpretation of New York law would exaggerate its inconsistency with the law of other jurisdictions weighs against adopting such a view:

836 F.2d at 109.

Finally, the Court stated that the imposition of a due diligence requirement would further the general policy promoted by any statute of limitations; the protection of defendants from stale claims. Id. at 108-109.

I had held that regardless of whether or not New York law could be construed as imposing a due diligence requirement upon original owners, plaintiff’s suit would have been timely- commenced, since the evidence demonstrated that the plaintiff made a “ ‘diligent although fruitless effort’ ” to locate the Monet. 658 F.Supp. at 694, quoting Kunstsammlungen Zu Weimar v. Elicofon, 536 F.Supp. 829, 849 (E.D.N.Y.1981), aff'd 678 F.2d 1150, 1160 (2nd Cir.1982). The Court of Appeals treated this finding as a legal conclusion and reviewed it de novo, reaching an opposite conclusion. It held that DeWeerth’s efforts to locate the Monet had been “minimal” and that she had failed to satisfy the due diligence requirement the Court announced in its ruling.

On February 5, 1988 the Second Circuit denied DeWeerth’s petition for rehearing and on February 19, 1988 the mandate of the Court of Appeals directing that the judgment in favor of plaintiff be reversed was filed in this court. Plaintiff’s petition for a writ of certiorari was denied by the United States Supreme Court on June 13, 1988.

IV

On February 14, 1991 the New York Court of Appeals, in an unrelated case, considered the identical issue which had been ruled upon by the Second Circuit in DeWeerth: whether or not New York law imposed a duty of due'diligence upon owners attempting to recover stolen property from subsequent good faith purchasers. In a unanimous-decision written by Chief Judge Wachtler, that Court ruled that no such duty existed, or had existed, under New York law. Guggenheim v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991). 3

*545 The New York Court of Appeals concluded that New York’s demand and refusal rule, which would be substantially modified by the imposition of a due - diligence requirement, was supported by prior New York case law. The Court cited in its ruling the fact that New York’s Governor had recently vetoed a bill which would have barred certain suits seeking the recovery of stolen art works from non-profit institutions three years after such institutions gave a statutorily specified notice that they possessed such objects. In vetoing this bill, the Governor expressed concern that its enactment “would have caused New York to become ‘a haven for cultural property stolen abroad’ ”. 567 N.Y.S.2d at 627, 569 N.E.2d at 430 (quoting Veto Message of Governor Cuomo, New York State Assembly Bill 11462-A [1986]).

Although the Second Circuit’s decision in DeWeerth concerned an unrelated control versy, the New York Court of Appeals in Guggenheim explicitly held that the due diligence requirement announced in DeWeerth was contrary to state law:

We have reexamined the relevant New York case law and we conclude that the Second Circuit should not have imposed a duty of reasonable diligence on the owners of stolen art work for purposes of the Statute of Limitations.

... The history of [proposed legislation seeking to establish a discovery rule for the recovery of stolen art works] when considered together with the abundant case law spelling out the demand and refusal rule, convince us that that rule remains the law in New York and that there is no reason to obscure its straightforward protection of true owners by creating a duty of reasonable diligence.

77 N.Y.2d at 319, 567 N.Y.S.2d at 626-627, 569 N.E.2d at 429-430.

In May 1991 plaintiff moved before the Second Circuit for the recall of its mandate of February 19, 1988, arguing that since the New York Court of Appeals had held the DeWeerth decision to have been incorrect, the Court was required to withdraw its mandate, vacate its judgment and affirm the judgment issued in the district court. This motion was denied without opinion.

V

The “ultimate source for state law adjudication in diversity cases is the law as established by the constitution, statutes, or authoritative court decisions of the state.” Factors Etc. Inc. v. Pro Arts, Inc., 652 F.2d 278, 283 (2nd Cir.1981), cert. denied 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d.442 (1982). Accordingly, a “federal court sitting in diversity must follow the law directed by the Supreme Court of the state whose law is found to be applicable ...” Plummer v. Lederle Laboratories, 819 F.2d. 349, 355 (2nd Cir.1987), cert. denied 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 see also Deeper Life Christian Fellowship Inc. v. Sobol, 948 F.2d 79, 84 (2nd Cir.1991).

Primacy of state court interpretation in matters of state law is a constitutional and statutory principle dating back to the founding of the Republic. As a matter of statutory construction, the principle was originally set forth in Section 34 of the Judiciary Act of 1789, the “Rules of Decision Act”. 4 As amended in 1948, the Act provides:

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

In Swift v. Tyson, 16 Pet. (41 U.S.) 1, 10 L.Ed. 865 (1842), the United States Supreme Court held that the Rules of Decision Act’s reference to the “laws of the *546 several states” meant that the federal courts were bound to apply state statutes and constitutional enactments, as well as to follow those state court decisions which either interpreted such enactments or dealt with questions of real estate or other “immovable” matters of local law. The Court held that on issues of general commercial law, however, federal courts were free to disregard state court decisions in favor of those “general principles and doctrines of commercial jurisprudence” which the federal courts found most appropriate. 41 U.S. at 18-19. In subsequent years, although the Swift doctrine remained elusive of precise definition, the areas of “general law” pursuant to which the federal courts became free to fashion their own pronouncements were eventually construed to include a wide range of subjects. See Erie R.R. Co. v. Tompkins, 804 U.S. 64, 75-76, 58 S.Ct. 817, 821, 82 L.Ed. 1188 (1938).

The Supreme Court repudiated the Swift doctrine in Erie. In Erie, the Court declared that federal courts were bound to follow state law, including the construction of those laws by a state’s highest court, on any matter not governed by the federal Constitution or a federal statute.

The Erie decision was based in part upon the Rules of Decision Act and in part upon constitutionally based considerations of federalism, some of which are particularly relevant here. Erie held that the application of differing rules to the same issues by federal and state courts had given plaintiffs who were non-residents of a state in which a defendant resided the advantage of being able to choose the most advantageous forum in which to sue. Thus, according to Justice Brandéis, “the doctrine rendered impossible equal protection of the law” since it arbitrarily favored non-resident plaintiffs over resident defendants. 304 U.S. at 74-75, 58 S.Ct. at 820-821.

Erie also recognized that one of the central goals of the Swift doctrine — to promote national uniformity in matters of “general law” — had proved illusory and that the uncertainty of the “demarcation between the province of general law and that of local law [had] developed a new well of uncertainties.” 304 U.S. at 74, 58 S.Ct. at 820. Thus Erie sought to eliminate the “spurious uniformity” of the Swift doctrine. 5

Erie can also be seen as implicitly recognizing that state judges are often more knowledgeable in applying the intricacies of state law and policy than their federal counterparts. Erie placed the primary responsibility for developing and interpreting state law upon a locally chosen judiciary which would be especially sensitive to the dynamics of the legal rules applicable in its jurisdiction.

Erie held that no provision of the Constitution purported to bestow upon the federal courts the power to declare the substantive rules governing state common law and that the Swift doctrine constituted “an unconstitutional assumption of powers by courts of the United States.” 304 U.S. at 78-80, 58 S.Ct. at 822-823, quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-372, 30 S.Ct. 140, 147-148, 54 L.Ed. 228 (Holmes J., dissenting). Justice Brandéis approvingly cited the dissenting opinion of Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 927, 37 L.Ed. 772 in the course of describing the fundamental principle at stake:

‘[Tjhere stands ... the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States — independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.’

*547 Erie R. Co. v. Tompkins, 304 U.S. at 78-79, 58 S.Ct. at 822-823, quoting Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 927 (Field J., dissenting).

It has been said that Erie “implicates, indeed perhaps it is, the very essence of our federalism”. 6 The protection of state autonomy has continued to be a vital component of Supreme Court jurisprudence over a wide range of subject areas. The underlying constitutional foundation of Erie was reaffirmed in subsequent Supreme Court decisions. See Bernhardt v. Polygraphic Company of America Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

When principles underlying Erie interact with other established principles governing the conduct of business in our courts, the resulting determination must take cognizance of Erie’s position at the heart of our system.

VI

With respect to many of the decisions in which the federal courts are called upon to interpret and apply state law, Erie lends itself to relatively straightforward application. Were this a case in which I was being called upon merely to determine whether to follow an interpretation of state law reached by the federal appellate court or one subsequently articulated by New York’s highest court, the result would be obvious.

In this case, however, the Erie rule must be balanced against the interest in finality of litigation. Plaintiff moved for relief in an earlier motion before the Second Circuit. I must therefore determine how to interpret that Court’s denial of plaintiff’s motion. The Second Circuit’s ruling on plaintiff’s motion must be analyzed in terms of the relationships between Erie, and Rule 60(b) in order to determine the proper treatment of plaintiff’s application before me.

VII

The range of fundamental policy and constitutional considerations which have informed the Erie doctrine are fully evident in the present case. Failure to act on the present Rule 60 motion would deny Mrs. DeWeerth the right to recover her property solely because she initially brought this action, in federal rather than state court. Had Mrs. DeWeerth brought suit in state court, her claim would have been deemed timely commenced under the applicable statute of limitations.

Such inconsistency is exactly the type of result that Erie was enacted to avoid. As Justice Frankfurter noted, “[t]he nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result.” Guaranty Trust Company of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945).

As noted supra, the Second Circuit’s decision in DeWeerth was partially based upon the Court’s view that New York’s rules governing the recovery of stolen property needed to be made more harmonious with the rules of other jurisdictions. It was necessary for the State of New York to impose a due diligence requirement, the Second Circuit held, not only because it made sense as a matter of state law precedent and policy, but because the failure to change New York’s demand and refusal law “would exaggerate its inconsistency with the law of other jurisdictions.” 836 F.2d at 109. The subsequent decision of the New York Court of Appeals in Guggenheim, however, provides a construction of New York law which, under Erie, is controlling, 7 and which involved an explicit re *548 jection of the Second Circuit’s DeWeerth approach. 8

The Guggenheim Court grounded its decision on a range of policy considerations growing out of its concern that any legal rules established by the courts be cognizant of New York’s special role as a world art center:

The backdrop for this replevin action is the New York City art market, where, masterpieces command extraordinary prices at auction and illicit dealing in stolen merchandise is an industry all its own ...

[O]ur decision today is in part influenced by our recognition that New York enjoys a worldwide reputation as a preeminent cultural center. To place the burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would, we believe, encourage illicit trafficking in stolen art. 77 N.Y.2d at 314, 320, 567 N.Y.S.2d at 624, 628, 569 N.E.2d at 427, 431.

As stated in Hoelzer v. City of Stamford, 933 F.2d 1131, (2d Cir.1991):

Underlying the New York court’s decision [in Guggenheim ] to dispense with the due diligence requirement was an awareness that lost art is extremely difficult to recover, and a policy determination that the burden of proving ownership should not be shifted onto the ‘wronged owner’ who has already suffered the theft of valuable property.

This court is “obliged to give full effect to decisions of New York’s highest court on issues involving the application of New York law.” Sanchez v. United States, 696 F.2d 213, 216 (2nd Cir.1982).

VIII

Plaintiff’s instant motion is brought under Federal Rules of Civil Procedure 60(b)(5) and (6). Pursuant to Rule 60(b)(5), a party may be relieved from a final judgment or order, inter alia, where the judgment “has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” Rule 60(b)(6) provides for relief from a final judgment where there is “any other reason justifying relief from the operation of the judgment.” Motions pursuant to Rule 60(b) are addressed to the sound discretion of the district court. Mendell In Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2nd Cir.1990), aff'd — U.S. -, 111 S.Ct. 2173, 115 L.Ed.2d 109 (1991).

Rule 60(b)(6) “confers broad discretion on the trial court to grant relief when ‘appropriate to accomplish justice’.” International Controls Corp. v. Vesco, 556 F.2d 665, 668 n. 2 (2nd Cir.1977), cert. denied 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978) (quotation omitted). “It is ‘properly invoked where there are extraordinary circumstances,’ [citations omitted] or where the judgment may work an extreme and undue hardship, [citations omitted] and ‘should be liberally construed when substantial justice will thus be served’ ”. Matarese v. LeFevre, 801 F.2d 98, 106 (2nd Cir.1986), cert. denied 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987).

“A postjudgment change in the law having retroactive application may, in special circumstances, constitute an extraordinary circumstance warranting vacation of a judgment.” Matarese v. LeFevre, 801 F.2d 98, 106, citing, inter alia, Pierce v. Cook & Co.,