JP Morgan Chase Bank, N.A. v. Melker

103 A.D.3d 853, 959 N.Y.S.2d 670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2013
• Status: Published

Opinion

In an action, inter alia, to enforce a guaranty, the defendant appeals from so much of an order of the Supreme Court, Nassau County (K. Murphy J.), dated March 22, 2012, as, in effect, denied that branch of his motion which was for summary judgment on his counterclaims.

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

We agree with the Supreme Court that the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law on his counterclaim sounding in conversion (see generally AGFA Photo USA Corp. v Chromazone, Inc., 82 AD3d 402, 403 [2011]; Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 113 [2009]). Contrary to the defendant’s contentions, the plaintiffs consent to the dismissal of the complaint did not automatically entitle the defendant to judgment as a matter of law on his counterclaims (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Christopher Assoc., 257 AD2d 1, 6 [1999]; European Am. Bank & Trust Co. v Boyd, 131 AD2d 629 [1987]).

The defendant’s remaining contentions either are without merit or have been rendered academic in light of our determination. Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.