Castaldi v 39 Winfield Assoc.
2006 NY Slip Op 04793 [30 AD3d 458]
Decided on June 13, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
PETER B. SKELOS
JOSEPH COVELLO, JJ.
2005-09901 DECISION & ORDER

[*1]Marc Castaldi, plaintiff, Marc Contracting, Inc., respondent,

v

39 Winfield Associates, defendant, John D. Lium, appellant. (Index No. 9900/04)





Kurzman Eisenberg Corbin Lever & Goodman, LLP, New York,
N.Y. (Ross J. Ellick of counsel), for appellant.
DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr,
LLP, White Plains, N.Y. (Evan
Wiederkehr of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant John D. Lium appeals from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered September 27, 2005, as denied his cross motion, in effect, pursuant to CPLR 3211(a)(7), to dismiss the seventh cause of action in the second amended complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the seventh cause of action in the second amended complaint is dismissed.

The appellant contends that the Supreme Court erred in denying his cross motion, in effect, to dismiss the seventh cause of action in the second amended complaint, which seeks to recover damages for conversion. We agree. To establish a cause of action in conversion "the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff's rights" (Batsidis v Batsidis, 9 AD3d 342, 343; see Fiorenti v Central Emergency Physicians, 305 AD2d 453; O'Callaghan v Stepfamily Found., 292 AD2d 579; Meese v Miller, 79 AD2d 237, 242). Accepting the facts alleged in the second amended complaint as true, and according the plaintiff the benefit of every favorable inference, as [*2]we must on a motion pursuant to CPLR 3211(a)(7) (see Leon v Martinez, 84 NY2d 83; Morales v Copy Right, AD3d [2d Dept, Apr. 4, 2006]; Fasano v Colon, 27 AD3d 691), we find that the conversion claim fails to state a cause of action. Although the plaintiff alleged a contractual right to payment for renovation work it performed on premises owned by the defendant 39 Winfield Associates, it never had ownership, possession, or control of the proceeds realized from the sale of the renovated premises. Accordingly, the conversion claim asserted against the appellant, who allegedly had control over the sale proceeds, must fail (see Batsidis v Batsidis, supra; Fiorenti v Central Emergency Physicians, supra; Colombo v Sharmas Realty, 174 AD2d 985; Peters Griffen Woodward v WCSC, Inc., 88 AD2d 883).
MASTRO, J.P., RIVERA, SKELOS and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court