Star Contracting Co. v. McDonald's Corp.

201 A.D.2d 721, 608 N.Y.S.2d 327, 1994 N.Y. App. Div. LEXIS 1716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1994
• Status: Published

Opinion

In an action to recover damages, inter alia, for breach of contract, the defendant McDonald’s Corporation appeals from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated January 22, 1992, as denied those branches of its motion which were to dismiss the first and fourth causes of action of the plaintiffs complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s motion which was to dismiss the plaintiffs fourth cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff.

Inasmuch as no cause of action lies for the conversion of intangible property, the plaintiffs fourth cause of action should properly have been dismissed pursuant to CPLR 3211 (a) (7) (see, Sporn v MCA Records, 58 NY2d 482, 489; 23 NY Jur 2d, Conversion, and Action for Recovery of Chattel, § 11). However, we find that the first cause of action clearly alleges that the defendant McDonald’s Corporation breached an agreement with the plaintiff whereby the latter was to perform certain demolition work in preparation for the construction of a restaurant. In reaching this conclusion the trial court properly looked to the plaintiffs opposing affidavits (see, CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635). We have examined the appellant’s remaining contentions and find them to be without merit. Mangano, P. J., Balletta, O’Brien and Hart, JJ., concur.