Pasternack v. Sokoloff

75 A.D.2d 578, 426 N.Y.S.2d 800, 1980 N.Y. App. Div. LEXIS 11000

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1980
• Status: Published

Opinion

In a conversion action, plaintiff appeals from an amended judgment of the Supreme Court, Kings County, entered May 25, 1979, which dismissed the complaint. Amended judgment modified by (1) deleting from the decretal paragraph thereof everything following the word "dismissed” and (2) substituting therefor the following: "except as to that part of the complaint alleging conversion of (a) a bond for $1,642.24 in the names of plaintiff and Joseph Sveilich and (b) a bond for $1,850.88 in the names of plaintiff and Anna Sveilich”. As so modified, amended judgment affirmed, without costs or disbursements. It was error for the trial court to conclude that plaintiff abandoned her conversion action in favor of one to impose a trust on the funds in question. If plaintiff’s property was converted, the use she intended for the property was irrelevant. The mysterious circumstances surrounding the disappearance of the bonds in plaintiff’s name and the testimony that defendant was the only person with access to the safe deposit box warrants the reinstatement of the complaint insofar as it alleges a conversion of these bonds. Plaintiff, however, failed to establish a prima facie case of conversion against defendant with regard to the bond in the names of Anna or Joseph Sveilich or the check for $15,315.44 sent by plaintiff to defendant. Plaintiff has no basis for alleging the conversion of a bond that is not in her name and to which she shows no entitlement. She also failed to establish that defendant’s actions or inactions constituted a conversion of the check. There is no proof that it was defendant who wrongfully interfered with the irrevocable assignment of the funds at issue and converted them to her own use. Hopkins, J. P., Rabin, O’Connor and Weinstein, JJ., concur.