Opinion
Submitted October 12, 2000.
November 6, 2000.
In an action to recover certain funds, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated August 17, 1999, which, after a nonjury trial, dismissed the complaint.
Ettelman Hochheiser, P.C., Garden City, N.Y. (Gary Ettelman of counsel), for appellant.
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (Patrick McCormick of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The parties were involved in two enterprises, each established for the purpose of purchasing real property and selling those properties at a later date. Over the years, one of the enterprises thrived while the other did not. The defendants then transferred certain proceeds from the successful enterprise to keep the second one afloat before dividing the proceeds equally among the parties.
Contrary to the plaintiff's contention, a joint venture existed among the parties (see, Tilden of N.J. v. Regency Leasing Sys., 230 A.D.2d 784; see also, Ackerman v. Landes, 112 A.D.2d 1081, 1082; Davella v. Nielsen, 208 A.D.2d 494).
Further, contrary to the plaintiff's contention, the evidence at trial demonstrated that there was no wrongful taking on the part of the defendants (see, Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 8 7 N.Y.2d 36, 44; Galtieri v. Kramer, 232 A.D.2d 369; 23 N Y Jur 2d, Conversion § 22 at 230-231, § 127 at 370).
As the defendants were authorized to possess the subject property, no conversion could occur absent the plaintiff's demand for the property and the defendants' refusal to provide it (see, Boston Concessions Group v. Criterion Ctr. Corp., 250 A.D.2d 435; Matter of White v. City of Mount Vernon, 221 A.D.2d 345, 346).