Heller v. Hicks Nurseries, Inc.

• Decision Date: 15 November 1993
• Citation: Heller v. Hicks Nurseries, Inc., 605 N.Y.S.2d 888, 198 A.D.2d 330 (N.Y. App. Div. 1993)
• Parties: Ben HELLER, Respondent, v. HICKS NURSERIES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 888

605 N.Y.S.2d 888

198 A.D.2d 330

Ben HELLER, Respondent, v.HICKS NURSERIES, INC., Appellant.

Supreme Court of New York, Appellate Division Second Department.

Nov. 15, 1993.

Liotti & Skelos, Garden City(George A. Terezakis, of counsel), for appellant.

Esseks, Hefter & Angel, Riverhead (William W. Esseks and William Power Maloney, of counsel), for respondent.

In an action to recover damages for conversion of property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County(Tanenbaum, J.), entered June 26, 1991, as denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly rejected the defendant's Statute of Limitations defense, as the complaint states a cause of action to recover damages for conversion, and the action was commenced within the applicable three-year Statute of Limitations (see, e.g., Sporn v. MCA Records, 58 N.Y.2d 482, 488, 462 N.Y.S.2d 413, 448 N.E.2d 1324;Two Clinton Sq. Corp. v. Friedler, 91 A.D.2d 1193, 459 N.Y.S.2d 179;CPLR 214).

We further find that the defendant failed to establish its defenses sufficiently to warrant judgment in its favor as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).The parties' conflicting affidavits presented credibility issues which should not be resolved on a motion for summary judgment(see, Capelin Assoc. v. Globe Mfg. Corp., 34...