Louis E. THYROFF, Plaintiff-Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Nationwide Mutual Fire Insurance Company, Nationwide Life Insurance, Nationwide General Insurance Company, Nationwide Property and Casualty Company, Nationwide Variable Life Insurance Company, Colоnial Insurance Company of Wisconsin, Defendants-Appellees.
No. 09-1002-cv.
United States Court of Appeals, Second Circuit.
Jan. 11, 2010.
179
Ben M. Krowicki, Bingham McCutchen LLP, Hartford, CT, for Appellees.
PRESENT: DENNIS JACOBS, Chief Judge, DEBRA ANN LIVINGSTON, Circuit Judge, JED S. RAKOFF,** District Judge.
SUMMARY ORDER
Plaintiff, Louis Thyroff, appeals from summary judgment entered February 12, 2009 in the United States District Court for the Wеstern District of New York (Telesca, J.). Thyroff claims that, following his termination as an insurance agent for defendant Nationwide Mutual Insurance Co. (“Nationwide“), personal files stored on a leased Nationwide computer were сonverted when the company repossessed it. The district court granted summary judgment for defendants. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We review summary judgment decisions de novo. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). “According to New Yоrk law, ‘[c]onversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner‘s rights.‘” Thyroff v. Nationwide Mut. Ins. Co. (Thyroff I), 460 F.3d 400, 403-04 (2d Cir.2006) (quoting Vigilant Ins. Co. of Am. v. Hous. Auth. of El Paso, 87 N.Y.2d 36, 637 N.Y.S.2d 342, 660 N.E.2d 1121, 1126 (1995) (internal quotation marks omitted)) (alterations in original). “Where the original possession is lawful, a conversion does not occur until the defendant refuses to return the property after dеmand or until he sooner disposes of the property.” Seanto Exports v. United Arab Agencies, 137 F.Supp.2d 445, 451 (S.D.N.Y.2001)
Thyroff leased a computer from Nationwide and placed on it personal files, of which Nationwide consequently took possession—along with the computer—following termination of the lease. Thyroff does not argue that repossession of the computer was unlawful. Under New York law, this is enough tо make Nationwide‘s possession of Thyroff‘s personal files lawful. See, e.g., Congregation Anshe Sefard of Keaр St., Inc. v. Title Guarantee & Trust Co., 291 N.Y. 35, 50 N.E.2d 534, 534-35 (1943) (conversion of personal property established when dispossessed lessee demanded, and was refused, return of property on formerly leased premises); Lewis v. Ocean Navigation & Pier Co., 125 N.Y. 341, 26 N.E. 301, 304-05 (1891) (same); Miller v. Marchuska, 31 A.D.3d 949, 819 N.Y.S.2d 591, 593 (N.Y.App.Div.2006) (“[R]etention by [a real propеrty] owner of goods belonging to [a] dispossessed [former occupant] after demand for their return constitutes conversion.” (emphasis added)); Pecoraro v. M & T Bank Corp., 11 A.D.3d 950, 782 N.Y.S.2d 481, 482-83 (N.Y.App.Div.2004) (lessor of safe deposit box was lawful possessor of box contents); Reich v. Cochran, 114 A.D. 141, 99 N.Y.S. 755, 755-56 (N.Y.App.Div.1906) (conversion of personal property established when dispossessed lessee demanded, and was refused, return of property on formerly leased premises).
Thyroff relies on this Court‘s statement in a prior appeal in this сase:
[W]e disagree with the district court‘s finding that Thyroff failed to state a claim for conversion of any business recоrds on the AOA because Nationwide owns the AOA. Nationwide owns the AOA, but that does not mean that it also owns any records that Thyroff may have saved on the system. Additionally, Thyroff has alleged that he installed his personal computer progrаms onto the AOA, and it is clear that Nationwide does not own these programs. Had Nationwide leased Thyroff a filing cаbinet into which Thyroff placed his personal property, such as a camera, Nationwide would not contend that it could seize Thyroff‘s camera when it reclaimed its filing cabinet. The instant situation is no different.
Thyroff I, 460 F.3d at 404. Thyroff argues that the quoted passage controls whether Nationwide‘s possession of his files was lawful. But the issue in Thyroff I was whether Nationwide could avoid liability for conversion because it owned the property at issue outright, free of any possessory rights assertable by Thyroff. The quite distinct issue here is whether Nationwide can avoid liability for conversion because, evеn though it did not own the property at issue outright, it was in lawful possession of the property, subject to Thyroff‘s superior рossessory right.
Did Thyroff produce sufficient evidence of demand to survive summary judgment? We think not. The purpose of the dеmand requirement “is simply ‘that one in lawful possession shall not have such possession changed into an unlawful one until he be informed of the defect of his title and have an opportunity to deliver the
We have considered Thyroff‘s remаining arguments, and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
* We direct the Clerk of the Court to amend the official caption as noted.