M.D. Carlisle Realty Corp. v Owners & Tenants Elec. Co. Inc.

M.D. Carlisle Realty Corp. v Owners & Tenants Elec. Co. Inc. 2008 NY Slip Op 00041 [47 AD3d 408] January 3, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

M.D. Carlisle Realty Corp., Respondent,
v
Owners & Tenants Electric Co. Inc., Defendant, and Edward Hendel, Appellant. (And a Third-Party Action.)

—[*1] Akerman Senterfitt Wickwire Gavin, Vienna, Va. (David P. Hendel of counsel), for appellant.

Thelen Reid Brown Raysman & Steiner LLP, New York City (Jose A. Aquino of counsel), for respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered June 26, 2006, which granted plaintiff's motion for summary judgment on its fifth cause of action against defendant Hendel personally in the principal amount of $459,729.58, unanimously reversed, on the law, with costs, the motion denied, and upon search of the record, Hendel's cross motion granted to the extent of dismissing the fifth cause of action, and the matter remanded for further proceedings.

Plaintiff property manager's cause of action for conversion, which was based on its service agreement with the now-bankrupt corporate defendant to collect utility payments from the commercial tenants and to pay such collected funds over to plaintiff, less fees and costs, should have been dismissed as duplicative of plaintiff's contract claim (see Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 306 [2003]). The parties' collection agreement did not establish a fiduciary relationship, nor did it provide for a specific account to be set up for the deposit of collected funds, and plaintiff was never assigned any right to identifiable funds (see e.g. Kurzman Karelsen & Frank v Kaiser, 283 AD2d 330 [2001]). Dismissal of the conversion claim was also warranted for lack of showing that plaintiff had ever exercised rights of ownership, possession or control over the [*2]collected funds (see Soviero v Carroll Group Intl., Inc., 27 AD3d 276 [2006]; Traffix, Inc. v Herold, 269 F Supp 2d 223, 228 [SD NY 2003]). Concur—Andrias, J.P., Nardelli, Buckley and Catterson, JJ.