Melapioni v. Melapioni

Appellate Division of the Supreme Court of New York

Melapioni v. Melapioni

133 A.D.3d 456, 18 N.Y.S.3d 859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 2015

Docket16108 111974/11

StatusPublished

This text of 133 A.D.3d 456 (Melapioni v. Melapioni) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Melapioni v. Melapioni, 133 A.D.3d 456, 18 N.Y.S.3d 859 (N.Y. Ct. App. 2015).

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Opinion

*457 Order, Supreme Court, New York County (Andrea Masley, J.), entered April 15, 2014, which, after a nonjury trial, dismissed the complaint with prejudice, unanimously affirmed, without costs.

The trial court correctly found that plaintiff failed to satisfy his burden of proof as to misappropriation and conversion and an accounting. Plaintiff argues that defendant, his mother, should have borne the burden of proving that she did not make an irrevocable gift to him of two bonds she received in connection with her 1993 divorce from his father, when plaintiff was three years old. He contends that the burden of proof was properly defendant’s by virtue of the fiduciary relationship between parent and child. However, plaintiff failed to establish, as he alleged in the complaint, that defendant “was entrusted with bonds that were deposited in a custodial account for [his] benefit” (see Stevens v St. Joseph’s Hosp., 52 AD2d 722, 722-723 [4th Dept 1976] [“The basis for an equitable action for accounting is the existence of a fiduciary or trust relationship respecting the subject matter of the controversy”]).

There is no basis for disturbing the trial court’s determination, especially since its findings of fact were based, in large part, on an assessment of the witnesses’ credibility (see Watts v State of New York, 25 AD3d 324 [1st Dept 2006]). Concur— Friedman, J.P., Acosta, Renwick, Andrias and Moskowitz, JJ.

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*457 Order, Supreme Court, New York County (Andrea Masley, J.), entered April 15, 2014, which, after a nonjury trial, dismissed the complaint with prejudice, unanimously affirmed, without costs.

The trial court correctly found that plaintiff failed to satisfy his burden of proof as to misappropriation and conversion and an accounting. Plaintiff argues that defendant, his mother, should have borne the burden of proving that she did not make an irrevocable gift to him of two bonds she received in connection with her 1993 divorce from his father, when plaintiff was three years old. He contends that the burden of proof was properly defendant’s by virtue of the fiduciary relationship between parent and child. However, plaintiff failed to establish, as he alleged in the complaint, that defendant “was entrusted with bonds that were deposited in a custodial account for [his] benefit” (see Stevens v St. Joseph’s Hosp., 52 AD2d 722, 722-723 [4th Dept 1976] [“The basis for an equitable action for accounting is the existence of a fiduciary or trust relationship respecting the subject matter of the controversy”]).

There is no basis for disturbing the trial court’s determination, especially since its findings of fact were based, in large part, on an assessment of the witnesses’ credibility (see Watts v State of New York, 25 AD3d 324 [1st Dept 2006]). Concur— Friedman, J.P., Acosta, Renwick, Andrias and Moskowitz, JJ.

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Bluebook (online)

133 A.D.3d 456, 18 N.Y.S.3d 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melapioni-v-melapioni-nyappdiv-2015.

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