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Sports Legends Inc. v. Carberry

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 7, 2009

SPORTS LEGENDS INC., PLAINTIFF-APPELLANT-RESPONDENT,
v.
PAUL B. CARBERRY, DEFENDANT-RESPONDENT-APPELLANT.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered March 13, 2008, which, in an action for conversion of property, granted defendant's motion to dismiss the complaint and denied his motion for sanctions against plaintiff, plaintiff's counsel and Joseph Cusenza, unanimously affirmed, without costs.

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.

Mazzarelli, J.P., Nardelli, Buckley, Acosta, DeGrasse, JJ.

110262/07

The motion court properly found that plaintiff's claim was barred pursuant to the three-year limitation of CPLR 214 [3]. Plaintiff sent a "demand" letter to defendant on July 19, 1999 and the demand letter was deemed rejected by the letter's own terms when not complied with in two weeks. Contrary to plaintiff's assertions, this 2007 complaint solely alleges one cause of action in conversion and the complained-of conduct is not a continuing tort (see Sporn v MCA Records, Inc., 58 NY2d 482, 488 [1983]; see also Elghanayan v Elghanayan, 265 AD2d 262, 263 [1999]). Moreover, in an action where defendant was a 50% shareholder of plaintiff and Cusenza the holder of the remaining 50%, Cusenza had no authority to commence this action against defendant (see Exec. Leasing Co., Inc v Leder, 191 AD2d 199, 200 [1993]).

We have considered plaintiff's remaining contentions and find them unpersuasive.

The motion court's admonition to plaintiff and Cusenza "that further attempts to pursue similar claims may result in the imposition of sanctions" was well within its discretionary authority to dispose of defendant's motion for sanctions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090407

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