Halley v Servedio

[*1] Halley v Servedio 2014 NY Slip Op 51140(U) Decided on July 7, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2012-1525 D C

Thomas P. Halley, Appellant,

against

Heather Servedio, Respondent.

Appeal from an order of the City Court of Poughkeepsie, Dutchess County (Frank M. Mora, J.), entered April 24, 2012. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is denied.

In this action to recover damages resulting from defendant's allegedly wrongful disposal of plaintiff's personal property, the complaint asserts causes of action sounding in conversion, replevin and breach of contract. Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (1), based upon documentary evidence.

It is undisputed that the parties entered into a written agreement by which certain of plaintiff's personal property was to remain in the house defendant purchased from plaintiff, following the closing of title, and plaintiff was to remove the property within four days of the date of the agreement. The agreement further provided that, in the event plaintiff failed to retrieve his property, defendant was permitted to "remove" the property at plaintiff's expense. Approximately nine days after plaintiff was to have removed his property from the house, and plaintiff having failed to do so, defendant caused plaintiff's property to be disposed of. In support of her motion to dismiss the complaint, defendant contended that, based on the written agreement, she was not liable for disposing of the property. Plaintiff opposed the motion. By order entered April 24, 2012, the City Court granted defendant's motion.

"A motion to dismiss based upon documentary evidence (CPLR 3211 [a] [1]) may be granted where the documentary evidence utterly refutes the allegations of the cause of action and conclusively establishes a defense as a matter of law" (RWSP Realty, LLC v Kinney, 34 Misc 3d 156[A], 2012 NY Slip Op 50407[U], *2-3 [App Term, 9th & 10th Jud Dists 2012]). The right of a party to remove the property of another does "not necessarily entitle [the party] to sell or destroy it" (Boardwalk Stores Corp. v Moses, 269 App Div 506, 510 [1945]). As the documentary evidence does not conclusively establish a defense to the action, the motion should have been denied.

Accordingly, the order is reversed and defendant's motion to dismiss the complaint is denied.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2014