Summary
affirming dismissal of claim for conversion where "the conversion claim was predicated on mere breach of contract, which is insufficient"
Summary of this case from Al Hirschfeld Found. v. Margo Feiden Galleries Ltd.Opinion
02-02-2016
Dimitry MARKOV, Plaintiff–Appellant, v. SPECTRUM GROUP INTERNATIONAL INC., et al., Defendants–Respondents.
Law Offices of Michael C. Barrows, New York (Michael C. Barrows of counsel), for appellant. Bruce N. Lederman, New York, for respondents.
Law Offices of Michael C. Barrows, New York (Michael C. Barrows of counsel), for appellant.
Bruce N. Lederman, New York, for respondents.
MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about January 21, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for a default judgment against all the corporate defendants, and granted defendants' cross motion for summary judgment dismissing plaintiff's cause of action for conversion, and dismissing all other claims against all defendants except Stack's LLC, and awarded defendants Karstedt and Yegparian sanctions in the amount of $2,500 each, to be paid by plaintiff and his counsel, unanimously affirmed, without costs.
The motion court correctly found that plaintiff's rejection of defendants' answer was improper, that the verification provided by defendant Yegparian was sufficient, and that there was no requirement that, in addition to that verification, each corporate defendant verify the answer (CPLR 3020 [d] ). In any event, plaintiff's motion for a default judgment was defective, as there was no proof that the amended complaint had ever been served. Summary judgment was properly granted to all corporate defendants except Stack's LLC, because there was no evidence that any of those corporations owned, managed, or was in any way involved in the auction run by Stack's LLC in 2008. Plaintiff's invocation of CPLR 3212(f) is unavailing, because that provision may not be used as a means to embark upon a "fishing expedition" to explore the possibility of fashioning a viable cause of action against the corporate defendants (see Citibank, N.A. v. Furlong, 81 A.D.2d 803, 804, 439 N.Y.S.2d 130 [1st Dept.1981] [internal quotations marks omitted] ).
The motion court correctly dismissed plaintiff's claim for conversion, because plaintiff failed to point to a specific sum of money that was subject to a future obligation (see Manufacturers Hanover Trust Co. v. Chemical Bank, 160 A.D.2d 113, 124–125, 559 N.Y.S.2d 704 [1st Dept.1990], lv. denied 77 N.Y.2d 803, 568 N.Y.S.2d 15, 569 N.E.2d 874 [1991] ). Instead, the conversion claim was predicated on a mere breach of contract, which is insufficient (Kopel v. Bandwidth Tech. Corp., 56 A.D.3d 320, 320, 868 N.Y.S.2d 16 [1st Dept.2008] ).
Plaintiff failed to state any viable cause of action against defendants Karstedt and Yegparian, who were mere employees of Stack's LLC. Under the circumstances, the motion court providently exercised its discretion in awarding sanctions to those defendants (see 22 NYCRR 130–1.1 [c][1]; see also Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 33–34, 698 N.Y.S.2d 226 [1st Dept.1999] ).