Richard Petrone, individually and as custodial parent and legal guardian for Richard Petrone, Alexandra Petrone, Caroline Petrone, and Reagan Petrone, respondent,
Davidoff Hutcher & Citron, LLP, appellant. Index No. 3761/15
Davidoff Hutcher & Citron, LLP, New York, NY (Joshua A.
Krakowsky and Larry Hutcher of counsel), appellant pro se.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J.
MILLER, BETSY BARROS, JJ.
DECISION & ORDER
action to recover damages for conversion, the defendant
appeals from an order of the Supreme Court, Nassau County
(Murphy, J.), entered January 21, 2016, which denied its
motion pursuant to CPLR 3211(a) to dismiss the complaint.
that the order is affirmed, without costs or disbursements.
plaintiff commenced this action to recover damages for
conversion. He alleged in the verified complaint that the
defendant, a law firm, represented his estranged wife,
nonparty Mary Petrone, in a matrimonial action. As part of
that action, Mary Petrone deposited the sum of $154, 735.20
into an escrow account held by the defendant. The defendant
was to hold those funds "merely [as] an escrow agent
and/or custodian." Thereafter, Mary Petrone terminated
the defendant as her counsel. The complaint alleged that
$100, 000 of the funds deposited into the escrow account
constituted monies belonging to the Petrones' four
children that had been gifted to the children by their great
aunt, and were to be held by their parents, as guardians. The
complaint further alleged that Mary Petrone informed the
plaintiff and the justice presiding over the matrimonial
litigation that the money deposited in the escrow account
included the children's funds, and that she demanded that
the defendant return those funds. In August 2014, the
defendant obtained a default judgment against Mary Petrone
for unpaid legal fees. It thereafter removed funds from the
subject escrow account and applied those funds to its default
judgment against Mary Petrone. The plaintiff demanded that
the defendant return the children's funds, and the
plaintiff alleged in the complaint that the defendant did not
represent the children in the matrimonial action, did not
have the right to convert the children's money to satisfy
a debt owed by Mary Petrone, and "intentionally
interfered with the children's right to the funds by
exercising dominion and control over the funds, thereby
depriving the children of possession or use of the
funds." The defendant moved pre-answer to dismiss the
complaint pursuant to CPLR 3211(a)(1), (5), and (7). The
Supreme Court denied the motion, and the defendant appeals.
deciding a motion to dismiss a complaint for failure to state
a cause of action pursuant to CPLR 3211(a)(7), the court must
give the pleading a liberal construction, accept all of the
facts alleged in the pleading to be true, and accord the
plaintiff the benefit of every possible favorable inference
in determining whether the allegations fit any cognizable
legal theory (see Leon v Martinez, 84 N.Y.2d 83,
87-88; Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275).
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" (C & B Enters.
USA, LLC v Koegel, 136 A.D.3d 957, 958 [internal
quotation marks omitted]; see Colavito v New York Organ
Donor Network, Inc., 8 N.Y.3d 43, 49-50). "Two key
elements of conversion are (1) plaintiff's possessory
right or interest in the property and (2) defendant's
dominion over the property or interference with it, in
derogation of plaintiff's right" (Colavito v New
York Organ Donor Network, Inc., 8 N.Y.3d at 50
[citations omitted]). "Money, if specifically
identifiable, may be the subject of a conversion action"
(Simpson & Simpson, PLLC v Lippes Mathias Wexler
Friedman LLP, 130 A.D.3d 1543, 1544-1545 [internal
quotation marks omitted]; see East Schodack Fire Co.,
Inc. v Milkewicz, 140 A.D.3d 1255, 1256; Hoffman v
Unterberg, 9 A.D.3d 386, 388; Peters Griffin
Woodward, Inc. v WCSC, Inc., 88 A.D.2d 883, 884;
Independence Discount Corp. v Bressner, 47 A.D.2d
756, 757). "[C]onversion occurs when funds designated
for a particular purpose are used for an unauthorized
purpose" (East Schodack Fire Co., Inc. v
Milkewicz, 140 A.D.3d at 1256, quoting Lemle v
Lemle, 92 A.D.3d 494, 497; see Hoffman v
Unterberg, 9 A.D.3d at 388; Meese v Miller, 79
A.D.2d 237, 243).
the complaint sufficiently alleges that the specific $100,
000 fund was designated for the benefit of the children, and
that it was, in effect, used by the defendant, who held such
funds merely as an escrowee or custodian, for the payment of
legal fees that were Mary Petrone's obligation to pay.
Contrary to the defendant's contention, the fact that the
children's funds were commingled with other money in the
escrow account does not preclude a cause of action for
conversion (see Simpson & Simpson, PLLC v Lippes
Mathias Wexler Friedman LLP, 130 A.D.3d at 1544-1545).
to the defendant's contention, a transcript of court
proceedings and affidavits it submitted in support of its
motion did not constitute "documentary evidence"
within the meaning of CPLR 3211(a)(1) (Anderson v
Armentano, 139 A.D.3d 769, 771; see Eisner v
Cusumano Constr. Inc., 132 A.D.3d 940, 941-942;
Cives Corp. v George A. Fuller Co., Inc., 97 A.D.3d
713). While a "wire transfer notification" showing
that on July 19, 2013, funds in the amount of $154, 735.25
were wired to the defendant from nonparties Mary T. McNally
and Jacqueline D. Mendoza, did constitute documentary
evidence, that evidence did not utterly refute the
plaintiff's factual allegations, conclusively
establishing a defense as a matter of law (see CPLR
3211(a)(1); Goshen v Mutual Life Ins. Co. of N.Y.,
98 N.Y.2d 314, 326; Rodolico v Rubin & Licatesi,
P.C., 114 A.D.3d 923, 924-925).
defendant's remaining contention is without merit.
the Supreme Court properly denied the defendant's motion
pursuant to ...