Thyroff v. Nationwide Mutual Insurance

493 F.3d 109, 26 I.E.R. Cas. (BNA) 469, 2007 U.S. App. LEXIS 15348, 2007 WL 1828842

Opinion

PER CURIAM.

Plaintiff-appellant Louis E. Thyroff appeals an adverse decision by the United States District Court for the Western District of New York (Telesca, /.) dismissing his claims for conversion and breach of contract. We assume familiarity with the underlying facts and procedural history, which are provided at Thyroff v. Nationwide Mutual Insurance Co., 460 F.3d 400 (2d Cir.2006), certified question answered by Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283, 832 N.Y.S.2d 873, 864 N.E.2d 1272 (N.Y.2007). In our prior opinion in this case, we affirmed the district court’s grant of summary judgment dismissing Thyroffs breach of contract claim, and certified the following question to the New York Court of Appeals: “Is a claim for the conversion of electronic data cognizable under New York law?” Thyroff, 460 F.3d at 408. On March 22, 2007, the New York Court of Appeals answered the certified question in the affirmative. See Thyroff, 8 N.Y.3d at 293, 832 N.Y.S.2d 873, 864 N.E.2d 1272. As we explained in our prior decision, “if a conversion claim may extend to electronic data, Thyroff has stated a claim sufficient to survive Nationwide’s motion to dismiss for both his personal and business data.” Thyroff, 460 F.3d at 405. Accordingly, based on the response from the New York Court of Appeals that electronic data may be the subject of a conversion claim under New York law, we vacate the district court’s dismissal of Thyroffs conversion claim and remand for further proceedings.