9310 Third Avenue Associates, Inc. v. Schaffer Food Service Co.

620 N.Y.S.2d 255 | N.Y. App. Div. | 1994

—In an action to recover damages, inter alia, for breach of contract, the defendant appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Kangs County (Garry, J.), dated February 22, 1993, which, among other things, denied its motion for summary judgment dismissing the complaint.

Ordered that the order is modified, by deleting the provision thereof which denied that branch of the defendant’s motion which was to dismiss causes of action 13 through 18 seeking to recover damages for conversion, and substituting therefor a provision granting that branch of the defendant’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the causes of action alleging breach of contract and fraud (see, CPLR 3212, 3211 [a] [7]; Lautner v Catarelli, 112 Misc 2d 157, 158). Considering both the complaint and the affidavit of the president of the corporate plaintiffs which was submitted in opposition to the defendant’s motion, we conclude that the plaintiffs have "adequately alleged for pleading survival purposes” causes of action for breach of contract and fraud (Leon v Martinez, 84 NY2d 83, 88; see also, Rovello v Orofino Realty Co., 40 NY2d 633, 635; Siegel v Blair Hall, Inc., 207 AD2d 539). However, with regard to causes of action 13 through 18 seeking to recover damages for conversion, we conclude that dismissal of these causes of action is warranted because the monies alleged to have been converted by the defendant are not sufficiently identifiable (see, Bankers Trust Co. v Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 AD2d 384, 385). That is, since the allegedly converted money is incapable of being "described or identified in the same manner as a specific chattel” (23 NY Jur 2d, Conversion, § 12, at 218), it is not the proper subject of a conversion action. Accordingly, that branch of the defendant’s motion which sought dismissal of the conversion causes of action is granted.

We have examined the parties’ remaining contentions and find them to be without merit. Copertino, J. P., Pizzuto, Santucci and Florio, JJ., concur.

Case Details

Case Name: 9310 Third Avenue Associates, Inc. v. Schaffer Food Service Co.

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 5, 1994

Citation: 620 N.Y.S.2d 255

Court Abbreviation: N.Y. App. Div.