Young v. Young, 7206/2015

• Decision Date: 28 January 2016
• Docket Number: 7206/2015
• Parties: Richard W. Young, Plaintiff(s) v. Alisa A. Young, Defendant(s)
• Court: New York Supreme Court

2016 NY Slip Op 50092(U)

Richard W. Young, Plaintiff(s)
v.
Alisa A. Young, Defendant(s)

7206/2015

Supreme Court, Suffolk County

Decided on January 28, 2016

Richard W. Young Esq

Plaintiff, self represented

863 Islip Ave

Central Islip NY 11722

Michelle Aulivola, Esq

Long Tuminello LLP

Attorneys for Defendant

120 Fourth Ave

Bay Shore NY 11706

Andrew G. Tarantino Jr., J.

HISTORICAL BACKGROUND

Plaintiff and Defendant are currently married but involved in a matrimonial action not before this Court (Index 1249/2013- Richard Young v Alisa Young). During the pendency of the matrimonial action, Plaintiff, a lawyer, has filed two additional actions against Defendant. First, Plaintiff filed a malicious prosecution action against Defendant (Index 3108/2014- Richard Young v Alisa Young). Then, Plaintiff filed this action for, among other things, conversion.

THE INSTANT MOTIONS

Plaintiff moves for an order of default against Defendant based upon Defendant's failure to answer the verified complaint in this matter. Defendant cross moves for an order seeking to extend Defendant's time to serve an answer to the complaint, and to consolidate this action with matrimonial actions appearing in another court. Both parties served opposition to each other's motions.

This action was commenced by filing a summons and verified complaint on April 23, 2015. The complaint alleges seven (7) causes of action, as follows:

FIRST: Conversion. Plaintiff alleges that in February 2015, the Defendant entered the marital premises (where Defendant has not resided for more than 2 years), opened a safe, and took $57,000.00 in "assets". Plaintiff alleges that the "assets" belong to the firm Young & Young, LLP, a named Plaintiff in this action.

SECOND: Conversion. Plaintiff alleges that Defendant withdrew $2,606.26 from an account on which the Defendant's name has appeared since 1986.

THIRD: Fraud. Plaintiff alleges that the Defendant's act of closing the above account, and concealing it from Plaintiff, caused Plaintiff to be late on his financial obligations.

FOURTH: Defamation. Plaintiff alleges that by closing the above account, it harmed Plaintiff's reputation and reduced his credit score.

FIFTH: Defamation per se. Plaintiff's allegations are similar as to those set forth in the fourth cause of action.

SIXTH: Intentional infliction of emotional distress. Plaintiff alleges that Plaintiff was "caused great personal harm and embarrassment having been notified by his creditors that he failed to pay his invoices due and owing on time" and that Plaintiff became "sick, sore and lame".

SEVENTH: Negligent infliction of emotional distress. Plaintiff's allegations are similar as to those set forth in the fourth cause of action.

ANALYSIS

Trial court has broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 NY2d 731, 454 N.Y.S.2d 977, 440 N.E.2d 1324 (1982), on remand, 92 AD2d 935, 460 N.Y.S.2d 359. See also, Feustel v. Rosenblum, 24 AD3d 549, 808 N.Y.S.2d 297 (2 Dep't 2005), rearg. granted, decision recalled and vacated, appeal dismissed as moot, 6 NY3d 885, 817 N.Y.S.2d 211, 850 N.E.2d 25, on rearg., 36 AD3d 615, 825 N.Y.S.2d 916, leave to appeal dismissed in part, denied in part, 8 NY3d 967, 836 N.Y.S.2d 539, 868 N.E.2d 220.

CONVERSION:

The 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 rights. Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006). In order to state a cause of action, plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise over or interference with the property in defiance of plaintiff's rights. Hamlet at Willow Creek Development Co., LLC v Northeast Land Development Corp., 64 AD3d 85, 878 N.Y.S.2d 97 (2d

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Dep't 2009). Where one is rightfully in possession of property, one' s continued custody of the property and refusal to deliver it on demand of the owner until the owner proves his or her right to the property does not constitute a conversion. Trans-World Trading, Ltd. v North Shore University Hosp. at Plainview, 64 AD3d 698, 882 N.Y.S.2d 685 (2d Dep't 2009).

Because of the pending matrimonial action, the nature of the alleged converted property must be determined. The definition of marital property should be construed broadly in order to give effect to economic partnership concept of the marriage relationship recognized in governing statute. Mesholam v. Mesholam, 11 NY3d 24, 862 N.Y.S.2d 453, 892 N.E.2d 846 (2008). By identifying nothing less than "all property" acquired during the marriage as marital property subject to equitable distribution, the Domestic Relations Law evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date. DeLuca v. DeLuca, 97 NY2d 139, 736 N.Y.S.2d 651, 762 N.E.2d 337 (2001), on remand, 290 AD2d 410, 736 N.Y.S.2d 601. The court's obligation in divorce, under the equitable distribution law, is not to determine who holds title to property, but rather, to determine whether property is marital or separate property, and if it is marital property, to provide for its equitable distribution between parties. Goldberg v. Goldberg, 143 AD2d 66, 531 N.Y.S.2d 318 (2 Dep't 1988).

This Court will not ponder about why $57,000.00 "cash" of an LLP was in a residential safe, nor about the tax questions raised by the $57,000.00 cash, nor why, if Defendant has not resided in the marital premises for more than two years, the safe combination was not changed. But, in context of the pending matrimonial action, it must be determined if the cash was marital or separate property. That issue is for the matrimonial court in its determination of equitable distribution. The same "separate" property versus "marital" property determination is also required of the $2,606.26 allegedly taken. The Court...