Willett v. Lincolnshire Management, Inc.

• Decision Date: 20 February 2003
• Citation: 756 N.Y.S.2d 9,302 A.D.2d 271
• Parties: RICHARD H. WILLETT, Respondent,<BR>v.<BR>LINCOLNSHIRE MANAGEMENT, Inc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

302 A.D.2d 271

756 N.Y.S.2d 9

RICHARD H. WILLETT, Respondent,

v.LINCOLNSHIRE MANAGEMENT, Inc., et al., Appellants.

Decided February 20, 2003.

Concur — Tom, J.P., Mazzarelli, Ellerin, Williams and Marlow, JJ.

The IAS court properly granted plaintiff summary judgment on his conversion claim against defendant Lincolnshire Management, Inc. (LMI). It is undisputed that LMI, in its role of managing agent of defendant Lincolnshire Equity Fund, L.P. (The Fund), withheld substantial distributions owed to plaintiff by The Fund. LMI's affirmative defense, that it properly withheld the distributions due plaintiff to offset a substantial obligation owed from plaintiff to LMI, was properly dismissed. The obligation purportedly owing from plaintiff to LMI is currently being disputed and "there is no right to set off a possible, unliquidated liability against a liquidated claim that is due and payable" (Spodek v Park Prop. Dev. Assoc., 263 AD2d 478, 478-479; see also New Haven Props. v Grinberg, 293 AD2d 386). The IAS court also properly dismissed the affirmative defenses that LMI's actions were justified in the interests of equity and that plaintiff's conversion claim was barred by the doctrines of estoppel and unclean hands since there was no evidence of wrongdoing by plaintiff.

We have considered defendants' remaining contentions and find them unavailing.