Spagnoletti v Chalfin

Spagnoletti v Chalfin 2015 NY Slip Op 06991 Decided on September 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2015
Mazzarelli, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.
154570/13 15740A 15740

[*1] Paul Spagnoletti, et al., Plaintiffs-Appellants,

v

Howard Chalfin, Defendant-Respondent, Allison Chalfin, Defendant.

Davis Polk & Wardwell LLP, New York (Craig M. Reiser of counsel), for appellants.

The Kimmel Law Firm, New York (Brian Kimmel of counsel), for respondent.

Orders, Supreme Court, New York County (Manuel J. Mendez, J.), entered June 6, 2014, which, inter alia, denied plaintiffs' motion for a default judgment, and denied plaintiffs' motion for partial summary judgment on their cause of action for conversion, unanimously affirmed, without costs.

Denial of the motion for a default judgment was proper since plaintiffs waived their objections to defendants' untimely answers by accepting them without objection. Furthermore, plaintiffs' motion for partial summary judgment indicates a willingness to waive any issue of untimeliness, as the motion presupposes that issue has been joined (see e.g. Wittlin v Schaprio's Wine Co., 178 AD2d 160 [1st Dept 1991]).

Plaintiffs' motion for partial summary judgment on their conversion claim was also properly denied since the record presents triable issues as to whether the deposit funds that plaintiffs seek the return of were properly segregated. Even if such funds were not properly segregated in the first instance, defendants had the ability to cure that defect during the term of the lease (see e.g. Shandwick USA v Exenet Techs. 192 Misc 2d 280 [Sup Ct, NY County 2002]). [*2]There are also questions as to whether the deposit funds are required to be returned to plaintiffs.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK