Bugarsky v. Marcantonio

254 A.D.2d 384, 678 N.Y.S.2d 737, 1998 N.Y. App. Div. LEXIS 11091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1998
• Status: Published

Opinion

In an action, inter alia, for replevin of certain stock certificates, and to recover damages for conversion and unjust enrichment, the defendant Mark Varrichio appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated July 24, 1997, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified by deleting the provision thereof denying the motion in its entirety and substituting therefor a provision granting that branch of the motion which was for summary judgment dismissing the sixth cause of action insofar as asserted against the appellant; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the appellant’s motion for summary judgment insofar as it sought dismissal of the causes of action for replevin and to recover damages for conversion insofar as asserted against him. There are triable issues of fact as to whether the plaintiff has a possessory right to the stock certificates at issue (see, Hofferman v Simmons, 290 NY 449, 455), and whether the appellant exercised “unauthorized dominion [and control over the subject stock] to the exclusion of the plaintiff’s rights” (Aetna Cas. & Sur. Co. v Glass, 75 AD2d 786). However, the appellant was entitled to summary judgment dismissing the cause of action to recover damages for unjust enrichment, as there was no showing that he obtained any benefit that in equity and good conscience he should not have obtained or possessed because it rightfully belonged to another (see, Mente v Wenzel, 178 AD2d 705, 706). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.