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Steven M. Tudisco and Genesee Valley Leasing, Inc v. Carl Duerr and Carol Duerr

November 10, 2011


Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered July 26, 2010.

Tudisco v Duerr

Decided on November 10, 2011

Appellate Division, Fourth 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.



The order, inter alia, granted defendants' motion to "modify and/or resettle" an order entered April 27, 2010 pursuant to CPLR 2221 (a) and awarded defendants attorneys' fees of $24,940.29.


It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the amount of $41,000 awarded on the first counterclaim and substituting therefor the amount of $35,100, vacating the award of attorneys' fees, reinstating the fourth and fifth causes of action in accordance with our decision herein concerning the amount paid on the promissory note and granting plaintiffs judgment on liability for those causes of action, and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, the alleged conversion by defendants of several pieces of construction equipment, including an excavator with two buckets and a grapple attachment, two backhoes and a bulldozer. Defendants asserted counterclaims for, inter alia, a money judgment for the balance owed on a promissory note. Following a non-jury trial, Supreme Court dismissed the complaint and granted judgment in favor of defendants on the first counterclaim, i.e., for the balance owed on the promissory note, and awarded them reasonable attorneys' fees with respect to the first counterclaim. Defendants thereafter moved to "modify and/or resettle" that order pursuant to CPLR 2221 (a), alleging that the court erred in stating that ownership of the excavator had been transferred to defendants. Plaintiffs cross-moved to "modify[ ]" the order pursuant to CPLR 2221 (a) on the ground that the corrected statement of fact sought by defendants would establish that defendants' actions in taking possession of the excavator constituted conversion. Plaintiffs appeal from an order that granted the motion, denied the cross motion and awarded attorneys' fees to defendants.

Viewing the evidence in the light most favorable to defendants, we conclude that there is no fair interpretation of the evidence supporting the court's determinations that defendants did not convert the equipment in question, i.e., the excavator and three attachments, the two backhoes and the bulldozer, and that the promissory note did not constitute a security agreement (see generally Palermo v Taccone, 79 AD3d 1616, 1618-1620).

" [T]o establish a cause of action in conversion, the plaintiff[s] must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant[s] exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff[s'] rights' " (id. at 1619-1620). " A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession . . . Two key elements of conversion are (1) [the] plaintiff[s'] possessory right or interest in the property . . . and (2) [the] defendant[s'] dominion over the property or interference with it, in derogation of [the] plaintiff[s'] rights' " (id. at 1620, quoting Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50).

With respect to the excavator, it is undisputed that Genesee Valley Leasing, Inc. (Genesee Valley) owned the equipment and that plaintiff Steven M. Tudisco was using the equipment to perform work on property owned by defendant Carl Duerr in October 2004. It is also undisputed that the excavator was thereafter moved by Carl Duerr to other property owned by him and remained there until it was returned to plaintiffs approximately four years later, during the pendency of the instant action, in a severely damaged condition. At trial, plaintiffs submitted photographs of the excavator taken when it was refurbished at a cost of $44,000, i.e., three months before it was removed by Carl Duerr to his property. Plaintiffs also presented the testimony of Henry Wells, who inspected the excavator on behalf of the non-party company from which plaintiffs leased the excavator before purchasing it. Wells testified that he was familiar with how Tudisco maintained equipment and that he had not observed other pieces of equipment owned or used by plaintiffs in the condition that the excavator was in when it was returned to plaintiffs, i.e., inoperable, with broken windows and evidence of a fire in the engine compartment where the hydraulics are located. The court admitted in evidence the estimate to make the necessary repairs to the excavator in the amount of $85,049. Defendants merely presented the testimony of Carl Duerr that the excavator was damaged when he received it and the testimony of a former employee of Genesee Valley that the company's employees were "hard" on equipment. With respect to the three attachments for the excavator, Tudisco testified that they also were located on defendants' property when defendants removed the excavator. Although Carl Duerr denied that he had the attachments in his possession, a photograph taken on April 1, 2009 established that the 46-inch bucket was located on defendants' property. We therefore conclude that plaintiffs established by a preponderance of the evidence that they had a possessory right to the excavator and attachments and that defendants interfered with that right in derogation of plaintiffs' rights (see Palermo, 79 AD3d at 1620).

With respect to the two backhoes and the bulldozer, it is undisputed that defendant Carol Duerr is the titled owner of that equipment. Plaintiffs had leased the equipment from the aforementioned non-party company, and Tudisco asked defendants for assistance in purchasing it. The record establishes that, in order to execute the transfer of the equipment to Carol Duerr, she paid Syracuse Supply Company $100,000, plaintiffs paid Syracuse Supply Company $16,000 and plaintiffs transferred the credit in the equipment in the amount of $250,000 to Carol Duerr. The handwritten promissory note, drafted in part by Carol Duerr, states in relevant part that Tudisco would "borrow $100,000 and agree to pay it back by January 1, 2003. It is up to Carl . . . Duerr to keep the machinery or sue for the money that is owed . . . Tudisco shall pay all legal fees incurred in this transaction. Genesee Valley . . . is also liable for this transaction." In his own handwriting, Tudisco added that the minimum payment per month would be $2,400, due and payable in full 18 ...

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