United Credit Corp. v. J.L.E. Industries, Inc.

251 A.D.2d 69, 674 N.Y.S.2d 27, 1998 N.Y. App. Div. LEXIS 6511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Herman Cahn, J.), entered March 3, 1997, which, to the extent appealed from, denied plaintiffs motion for summary judgment against defendant Macklowitz, and granted said defendant’s cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

The causes of action for conversion and money had and received asserted against defendant attorney were properly dismissed. Plaintiff failed to raise an issue of fact in response to defendant attorney’s showing that he had disbursed $65,000 from the proceeds of the subject check before receiving the April 13 hand delivery of plaintiffs April 10 letter demanding that he turn over the proceeds of the check. The attorney’s subsequent retention of the remaining proceeds of the check in his client’s escrow account was not wrongful in light of plaintiffs failure to provide the promised documentation in support of its claim (see, Bradley v Roe, 282 NY 525, 531-532). Plaintiffs belated attempt at compliance by providing only the factoring agreement without the accompanying schedule of the account receivable that it claimed or the applicable UCC-1 financing statement was insufficient to warrant defendant attorney’s invasion of his client’s escrow to pay the unsubstantiated claim.

We have considered plaintiffs other contentions and find them to be without merit. Concur — Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.