Sports Legends Inc. v. Carberry

61 A.D.3d 449, 876 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered March 13, 2008, which, in an action for conversion of property, granted defendant’s motion to dismiss the complaint and denied his motion for sanctions against plaintiff, plaintiffs counsel and Joseph Cusenza, unanimously affirmed, without costs.

The motion court properly found that plaintiffs claim was barred pursuant to the three-year limitation of CPLR 214 (3). Plaintiff sent a “demand” letter to defendant on July 19, 1999 and the demand letter was deemed rejected by the letter’s own terms when not complied with in two weeks. Contrary to plaintiff’s assertions, this 2007 complaint solely alleges one cause of action in conversion and the complained-of conduct is not a continuing tort (see Sporn v MCA Records, 58 NY2d 482, 488 [1983]; see also Elghanayan v Elghanayan, 265 AD2d 262, 263 [1999]). Moreover, in an action where defendant was a 50% shareholder of plaintiff and Cusenza the holder of the remaining 50%, Cusenza had no authority to commence this action against defendant (see Executive Leasing Co. v Leder, 191 AD2d 199, 200 [1993]).

We have considered plaintiffs remaining contentions and find them unpersuasive.

The motion court’s admonition to plaintiff and Cusenza “that further attempts to pursue similar claims may result in the imposition of sanctions” was well within its discretionary authority to dispose of defendant’s motion for sanctions. Concur—Mazzarelli, J.P, Nardelli, Buckley, Acosta and De-Grasse, JJ. [See 2008 NY Slip Op 30718(U).]