Heller v. Hicks Nurseries, Inc.

198 A.D.2d 330, 605 N.Y.S.2d 888, 1993 N.Y. App. Div. LEXIS 10562

Opinion

—In an action to recover damages for conversion of property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered June 26, 1991, as denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly rejected the defendant’s Statute of Limitations defense, as the complaint states a cause of action to recover damages for conversion, and the action was commenced within the applicable three-year Statute of Limitations (see, e.g., Sporn v MCA Records, 58 NY2d 482, 488; Two Clinton Sq. Corp. v Friedler, 91 AD2d 1193; CPLR 214).

We further find that the defendant failed to establish its defenses sufficiently to warrant judgment in its favor as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). The parties’ conflicting affidavits presented credibility issues which should not be resolved on a motion for summary judgment (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Dyckman v Barrett 187 AD2d 553). Accordingly, summary judgment was properly denied. Sullivan, J. P., Lawrence, O’Brien and Santucci, JJ., concur.