Protection Industries Corp. v. DDB Needham Worldwide, Inc.

8 A.D.3d 185, 779 N.Y.S.2d 463, 2004 N.Y. App. Div. LEXIS 8867

Opinion

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered May 8, 2003, which, to the extent appealed from, denied plaintiffs motion to amend its complaint to add a cause of action for conversion and for attorneys’ fees, unanimously modified, on the law, to the extent of granting plaintiffs motion to amend its complaint to assert the sixth cause of action for conversion set forth in its proposed amended complaint, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered December 22, 2003, which denied plaintiff’s motion denominated one to renew or reargue the court’s prior order, unanimously dismissed, without costs, inasmuch as no appeal lies from the denial of a motion for reargument.

In denying plaintiff leave to add a cause of action for conversion, the motion court held that because plaintiffs equipment was originally on defendant’s premises lawfully, plaintiff was required to demand the return of the equipment before a conversion could occur. However, since plaintiffs claim is that an inspection of defendant’s premises revealed that much of the equipment in issue had been destroyed or was missing, the alleged wrongful taking at once created a cause of action for conversion in favor of plaintiff. “No demand was necessary” (MacDonnell v Buffalo Loan, Trust & Safe Deposit Co., 193 NY 92, 101 [1908]). Concur—Tom, J.P., Mazzarelli, Andrias, Ellerin and Lerner, JJ.