Hovhannessian v Yetemain-Torosian

[*1] Hovhannessian v Yetemain-Torosian 2006 NY Slip Op 50661(U) [11 Misc 3d 1082(A)] Decided on March 10, 2006 Supreme Court, Queens County Agate, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2006
Supreme Court, Queens County

Anna Hovhannessian, Plaintiff,

against

Alice Yetemain-Torosian, Defendant.



16578/02

Augustus C. Agate, J.

Plaintiff commenced this action to recover damages for conversion and fraud. Plaintiff is the niece of defendant. She was the beneficiary of a legal settlement for injuries she sustained in an accident as a child. Upon reaching the age of majority, plaintiff obtained the money from the guardianship account which defendant agreed to hold for plaintiff until plaintiff graduated college and was more financially experienced. Plaintiff alleges that defendant removed these funds and has refused to return them to plaintiff, thereby requiring this legal action.

Defendant moves to dismiss plaintiff's Complaint, arguing that plaintiff failed to state a cause of action. She argues that the claims of conversion and fraud are duplicative and should be dismissed. Defendant also argues that plaintiff failed to allege fraud with specificity as required under CPLR §3016(b) and the facts presented do not demonstrate fraud.

Plaintiff opposes defendant's motion, arguing that her complaint alleges sufficient facts to proceed. Plaintiff argues that the complaint alleges sufficient facts to support claims for conversion and fraud without being duplicative. Plaintiff further argues that there is sufficient evidence to establish fraud, as defendant intentionally misled plaintiff into believing defendant would maintain the funds for plaintiff's benefit, but instead kept the funds for defendant's own [*2]purposes and to plaintiff's detriment.

On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction. (Leon v. Martinez, 84 NY2d 83 [1994].) In determining whether plaintiff's complaint states a valid cause of action, the court must accept each allegation as true, without expressing any opinion on plaintiff's ultimate ability to establish the truth of these allegations before the trier of fact. (219 Broadway Corp. v. Alexanders, Inc., 46 NY2d 506 [1979]; Tougher Industries, Inc. v. Northern Westchester Joint Water Works, 304 AD2d 822 [2nd Dept. 2003].) The court must find plaintiff's complaint to be legally sufficient if it finds that plaintiff is entitled to recovery upon any reasonable view of the stated facts. (See CPLR § 3211[a][7]; Hoag v. Chancellor, Inc., 246 AD2d 224 [1st Dept. 1998].)

To state a cause of action for conversion, plaintiff must show legal ownership to a specific identifiable thing and that defendant exercised unauthorized dominion over it, to the exclusion of plaintiff's rights. (Batsidis v. Batsidis, 9 AD3d 342 [2nd Dept. 2004], citing Independence Discount Corp. v. Bressner, 47 AD2d 756 [2nd Dept. 1975].) To state a cause of action for fraud, plaintiff must demonstrate that defendant knowingly misrepresented a material fact, upon which plaintiff justifiably relied, resulting in an injury. (New York University v. Continental Ins. Co., 87 NY2d 308 [1995].)

Contrary to defendant's arguments, plaintiff alleges specific facts to demonstrate conversion and fraud. Plaintiff proved that she was the legal owner of the settlement funds which defendant has removed into a private account to which plaintiff has no access. Plaintiff also demonstrated that defendant intentionally misled plaintiff into believing defendant would hold plaintiff's money for plaintiff's future benefit. Plaintiff relied on defendant's statements to her detriment, as defendant removed all access to the funds and has refused to return plaintiff's money. Assuming the facts asserted by plaintiff are true, the facts presented in the complaint can demonstrate valid claims of conversion and fraud. Plaintiff also established that the claims for conversion and fraud are not duplicative, as they require different actions and men rea on the part of defendant. Based upon a reasonable view of the stated facts and a liberal review of the pleading, plaintiff's Complaint states a valid cause of action. (See Rosenheck v. Rosenheck, 69 AD2d 878 [2nd Dept. 1979].)

Accordingly, defendant's motion to dismiss is denied.

Dated:March 10, 2006_______________________

Augustus C. Agate, J.S.C.