Melapioni v Melapioni

Melapioni v Melapioni 2015 NY Slip Op 08111 Decided on November 12, 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 November 12, 2015
Friedman, J.P., Acosta, Renwick, Andrias, Moskowitz, JJ.
16108 111974/11

[*1] Vincent Joseph Melapioni, Jr., Plaintiff-Appellant, ——

v

Lisa Melapioni, now known as Lisa Astorino, Defendant-Respondent.

Meyers Tersigni Feldman & Gray LLP, New York (Anthony

L. Tersigni of counsel), for appellant.

Crawford Bringslid Vander Neut, LLP, Staten Island (Allyn J. Crawford of counsel), for respondent.

Order, Supreme Court, New York County (Andrea Masley, J.), entered April 15, 2014, which, after a nonjury trial, dismissed the complaint with prejudice, unanimously affirmed, without costs.

The trial court correctly found that plaintiff failed to satisfy his burden of proof as to misappropriation and conversion and an accounting. Plaintiff argues that defendant, his mother, should have borne the burden of proving that she did not make an irrevocable gift to him of two bonds she received in connection with her 1993 divorce from his father, when plaintiff was three years old. He contends that the burden of proof was properly defendant's by virtue of the fiduciary relationship between parent and child. However, plaintiff failed to establish, as he alleged in the complaint, that defendant "was entrusted with bonds that were deposited in a custodial account for [his] benefit" (see Stevens v St. Joseph's Hosp., 52 AD2d 722, 722-723 [4th Dept 1976] ["The basis for an equitable action for accounting is the existence of a fiduciary or trust relationship respecting the subject matter of the controversy"]).

There is no basis for disturbing the trial court's determination, especially since its findings of fact were based, in large part, on an assessment of the witnesses' credibility (see Watts v State of New York, 25 AD3d 324 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2015

CLERK