Siegler v. Lippe

• Decision Date: 02 December 2020
• Docket Number: 2019–00235,Index No. 703444/18
• Citation: 189 A.D.3d 903,137 N.Y.S.3d 429
• Parties: Suzanne SIEGLER, etc., appellant, v. Barbara Kaye Nixon Tinkelman LIPPE, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 903
137 N.Y.S.3d 429

Suzanne SIEGLER, etc., appellant,
v.
Barbara Kaye Nixon Tinkelman LIPPE, etc., et al., respondents.

2019–00235
Index No. 703444/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 27, 2020
December 2, 2020

137 N.Y.S.3d 432

Sperber & Stein, LLP, Garden City, N.Y. (Michelle S. Stein of counsel), for appellant.

Olshan Frome Wolosky LLP, New York, N.Y. (Peter M. Sartorius of counsel), for respondents.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for conversion and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered November 26, 2018. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, fourth, fifth, sixth, seventh, eighth, twelfth, and thirteenth causes of action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff commenced this action, inter alia, to recover damages for conversion and breach of fiduciary duty. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. They argued that the Supreme Court should direct dismissal of the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In an order entered November 26, 2018, the Supreme Court granted the defendants' motion. The plaintiff appeals.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d 803, 804, 126 N.Y.S.3d 498 ). On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to commence an action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact (see Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d at 804–805, 126 N.Y.S.3d 498 ). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d at 804, 126 N.Y.S.3d 498 ).

Applying these standards, we agree with the Supreme Court's determination to

137 N.Y.S.3d 433

grant those branches of the defendants' motion which were to dismiss the ninth cause of action for an accounting, the tenth and eleventh causes of action for certain specific performance, and the fourteenth cause of action to recover damages for money had and received.

However, we disagree with the Supreme Court's determination to grant those branches of the defendants' motion which were to dismiss the first through seventh causes of action to recover damages for conversion. A conversion takes place when someone, intentionally and without authority,...