Opinion
8216 Index 306160/14
01-29-2019
Mercedes ROSARIO, Plaintiff–Respondent, v. Michael SIMMONS, Defendant–Appellant, Alexis Seda, Defendant.
Richard E. Hershenson, New York, for appellant. Law Offices of Marc H. Wasserman, P.C., Mount Sinai (Marc H. Wasserman of counsel), for respondent.
Richard E. Hershenson, New York, for appellant.
Law Offices of Marc H. Wasserman, P.C., Mount Sinai (Marc H. Wasserman of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.H.O.), entered on or about March 23, 2018, which, to the extent appealed from as limited by the briefs, found that defendant Michael Simmons wrongfully converted plaintiff's winning lottery ticket, unanimously affirmed, without costs.
Any presumption that defendant, as bearer of the lottery ticket, was its owner, was rebutted by plaintiff's credible testimony that she purchased the ticket and hid it for safekeeping, only to have it stolen from her (see Benjamin v. Benjamin, 106 A.D.2d 599, 600, 483 N.Y.S.2d 418 [2d Dept. 1984], affd 65 N.Y.2d 756, 492 N.Y.S.2d 31, 481 N.E.2d 571 [1985] ). Because defendant refused to return the ticket's proceeds upon the demand of plaintiff, its rightful owner, he is liable for conversion, regardless of his role in the actual theft of the ticket (see State of New York v. Seventh Regiment Fund, 51 A.D.3d 463, 857 N.Y.S.2d 547 [1st Dept. 2008], lv denied 11 N.Y.3d 706, 866 N.Y.S.2d 610, 896 N.E.2d 96 [2008] ).