Swig Equities, LLC v Kruger

Swig Equities, LLC v Kruger 2018 NY Slip Op 06471 Decided on October 2, 2018 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 October 2, 2018
Manzanet-Daniels, J.P., Tom, Webber, Oing, JJ.
7180 152931/17

[*1]Swig Equities, LLC, Plaintiff-Appellant,

v

Bernard M. Kruger, MD, Defendant-Respondent, John Does 1-10, Defendants.

Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for appellant.

Bernard M. Kruger, respondent pro se.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered December 5, 2017, which, inter alia, granted defendant Bernard M. Kruger, MD's motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff alleges that defendant converted certain photographs transferred to him by plaintiff's principal, Kent Swig, in 2011, two years after Swig defaulted on a short-term loan extended by plaintiff and plaintiff obtained a judgment against him. The factual allegation that defendant had orally promised to safeguard the photographs as a personal favor to Swig is inherently incredible in the face of the undisputed facts, and the motion court was not required to accept it (see Zanett Lombardier, Ltd. v Maslow, 29 AD3d 495 [1st Dept 2006]; Herman v Greenberg, 221 AD2d 251 [1st Dept 1995]). The court reasonably accepted defendant's explanation for Swig's transfer of the photographs to him in 2011 that they constituted partial payment toward, or collateral for, the 2009 judgment. Accordingly, this action is barred by the Release and Indemnity executed by Swig on June 9, 2016, on behalf of plaintiff, in which Swig expressly released defendant from all claims arising out of or relating to any judgment between the parties (see Long v O'Neill, 126 AD3d 404, 406-407 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2018

CLERK