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Thryoff v. Nationwide Mutual Insurance Co.

February 10, 2009

LOUIS E. THRYOFF, PLAINTIFF,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE GENERAL INSURANCE COMPANY, NATIONWIDE PROPERTY AND CASUALTY INSURANCE CO., AND COLONIAL INSURANCE COMPANY OF WISCONSIN, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Louis E. Thyroff ("Thyroff") brings this action against the above-named defendants (collectively "Nationwide" or defendant) alleging violations of federal and New York state law arising from the defendant's cancellation of his agency agreement and the alleged conversion of personal property. Though plaintiff originally raised thirteen claims in his Complaint, and attempted on two occasions to add additional claims, only his state law claim for conversion of property remains. With respect to this claim, plaintiff contends that Nationwide took electronic data and software programs belonging to him when Nationwide reclaimed a computer that was leased by Thyroff from Nationwide. Although plaintiff acknowledges that the defendant owned the computer, he claims that he kept valuable personal data and software programs on the computer, and that he was not allowed to retrieve these items prior to Nationwide's reclamation of the computer. He alleges that because this information was taken by the defendant, he was unable to engage in a separate business enterprise, and therefore lost significant potential income.

Defendant denies the plaintiff's claims, and now moves for summary judgment on grounds that Thyroff has failed to establish a claim for conversion under New York State law. Specifically, defendant contends that the plaintiff's claim must fail because:

(1) Thyroff failed to make a proper demand for the return of his property; (2) plaintiff does not own the data allegedly converted; and (3) plaintiff cannot establish damages as a result of the alleged conversion. For the reasons set forth below, I find that because plaintiff failed to make an adequate and timely demand for the return of his property, he has failed to establish a claim of conversion under New York State law.

BACKGROUND

The facts of this case have been set forth in this court's previous decisions, as well as in the August 21, 2006, Decision and Order of the Second Circuit Court of Appeals. In summary, for twenty one years, plaintiff Louis Thyroff was an insurance agent associated with the defendant Nationwide Mutual Insurance Company. In September, 2000, Nationwide terminated its relationship with Thyroff, and in doing so, without notice to Thyroff, disabled a computer leased by him from Nationwide, thereby preventing him from accessing any information on the computer, including any personal information he may have stored on the computer. According to Thyroff, by disabling the computer, Nationwide prevented him from accessing data and software programs that were his personal property, thereby converting his personal property.

DISCUSSION

I. Defendant's motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, ; 127 S.Ct. 1769, 1776 (2007) . If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at ; 127 S.Ct. at 1776 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).

II. Plaintiff has Failed to State a Claim for Conversion

A. Elements of a Conversion Claim under New York Law

To state a claim for conversion of property under New York law, in cases where the defendant is in lawful possession of disputed property, a plaintiff must establish that: (1) without authorization, (2) the defendant exercised dominion or ownership over property belonging to another, (3) the plaintiff, as rightful owner of the property, made a demand for the return of the property and (4) the defendant refused plaintiff's demand. Fagan v. First Sec. Invs., Inc., 2006 WL 2671044 at *3, (S.D.N.Y. Sept. 15, 2006). In cases where the defendant is not in lawful possession of the contested property, no demand for return of the property is required. Newbro v. Freed, 409 F.Supp.2d 386, (S.D.N.Y., 2006).

In the instant case, the record reveals that the defendant was in lawful possession of the computer leased by Thyroff when it reclaimed the computer. There is no dispute that at all times relevant to this dispute, Nationwide owned the computer at issue, and plaintiff merely leased the computer pursuant to an agreement with Nationwide. Because Nationwide was at all times the sole owner of the computer at issue, I ...


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