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April 25, 2000


The opinion of the court was delivered by: Spatt, District Judge.



On December 20, 1998, the plaintiffs Blue Chip Mortgage Corporation ("Blue Chip") and Keith Asdourian ("Asdourian") filed a forty-three page amended complaint, naming twenty-one defendants and containing twelve separately designated causes of action. The underlying facts of the amended complaint were detailed in two separate opinions. See Asdourian, et al. v. Konstantin, et al., 50 F. Supp.2d 152 (E.D.N.Y. 1999) (denying plaintiffs' motion for a preliminary injunction); Asdourian, et al. v. Konstantin, et al., 77 F. Supp.2d 349 (E.D.N.Y. 1999) (denying defendants' motion to dismiss) and will not be repeated here.

As a result of settlements and/or defaults on the part of various defendants, the plaintiffs proceeded to trial against only defendant Konstantin. The trial commenced on February 2, 2000 and lasted seven days. Eight witnesses testified and more than seventy exhibits were introduced into evidence. After the plaintiffs concluded their case, the defendant rested without calling a witness. Pursuant to Rule 50 of the Federal Rules of Civil Procedure ("Fed. R. Civ.P."), the defendant made a motion to dismiss the plaintiffs' case in its entirety. The Court dismissed all four counts of the plaintiffs' RICO claims and all but two of the remaining New York State common law causes of action. The only remaining causes of action for the consideration of the jury were the common law claims of conversion and breach of contract. In denying the defendant's motion for judgment as a matter of law on Blue Chip's conversion claim, the Court stated:

With regard to the motion for judgment as a matter of law at the end of the plaintiffs' case and at the end of the entire case on the conversion count, which is Count Two, the Court finds that there is sufficient proof that the defendant diverted monies belonging to Blue Chip to his own uses, to either personal use or his own business use. He was not the owner of the company, and at least there is a jury question as to whether he did divert this money.

(Tr. 862).*fn*

On February 11, 2000, the jury rendered a verdict in favor of Blue Chip on its conversion claim and in favor of the defendant on the breach of contract cause of action. Specifically, the jury found that Blue Chip had proved that Konstantin wrongfully converted: (1) checks for costs associated with his companies; (2) monies from the Blue Chip escrow account; and (3) the proceeds of the sale of the properties paid for and deeded to Blue Chip. The jury awarded $300,000 in compensatory damages, but did not award punitive damages.

Following the jury's verdict, the defendant moved pursuant to Fed.R.Civ.P. 50 and 59 for judgment as a matter of law and for a new trial. The Court granted the defendant's request to present those motions on paper with the benefit of the trial transcript. In accordance with the Court's schedule, the motions were fully briefed and submitted on April 11, 2000. Neither Blue Chip nor the defendant requested oral argument, and have notified the Court of their intention that the motion be decided on the submitted papers.


A. Fed.R.Civ.P. 50

A court decides a motion for judgment as a matter of law under Fed. R.Civ.P. 50(a)(1) using the same standard that applies to motions for summary judgment. Alfaro v. Wal-Mart Stores, Inc., 2000 WL 287314 (2d Cir. 2000). The motion must be denied unless the court finds that there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture, or if the evidence is so overwhelming that reasonable and fair minded persons could only have reached the opposite result. Ryduchowski v. Port Authority of New York, 203 F.3d 135, 141-42 (2d Cir. 2000); see also This Is Me, Inc. v. Taylor, 157 F.3d 139 (2d Cir. 1998); Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2nd Cir. 1994); Weldy v. Piedmont Airlines, 985 F.2d 57 (2d Cir. 1993). In making this determination, the court is required to view the evidence in the light most favorable to, draw all reasonable inferences in favor of, and resolve all credibility disputes to the benefit of the non-moving party — in this case, the plaintiff Blue Chip Mortgage Corp. Ryduchowski, 203 F.3d at 142; Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 425 (2nd Cir. 1999); Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2nd Cir. 1997).

The defendant makes three arguments in support of his motion for judgment as a matter of law on the conversion cause of action. First, the defendant submits that he and Asdourian were joint-venturers and thus the plaintiff Blue Chip is not entitled to maintain a conversion cause of action. Next, the defendant claims that Blue Chip may not recover in conversion for the wrongful sale of real property. Finally, the defendant contends that Blue Chip failed to establish the existence of any "specifically identifiable" property that Konstantin was legally obligated to return.

"Conversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property." Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54-55 (2d Cir. 1993) (quoting Meese v. Miller, 79 A.D.2d 237, 436 N.Y.S.2d 496, 500 [N.Y.A.D. 1981]). "Conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Elma RT and Nagykoros Canning Factory RT v. Landesmann Int'l Marketing Corp., 2000 WL 297197, *3 (S.D.N.Y. March 22, 2000) (citing Vigilant Ins. Co. of America v. Housing Auth. of City of El Paso, Texas, 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 [1995]); see also Baker's Aid v. Hussmann Foodservice Co., 73 ...

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