Bank of India v. Weg & Myers, P. C.

36 Citing cases

  1. BROYHILL FURN. IND v. HUDSON FURN. GALLERIES

    2008 N.Y. Slip Op. 30636 (N.Y. Sup. Ct. 2008)   Cited 2 times

    Generally, a buyer will take collateral free of the security interest created by the seller if the secured party authorized the sale of collateral, or the buyer purchased the goods in the ordinary course of business (UCC § 2-403; Fleet Capital Corp. v Yamaha Motor Corp., U.S.A., 2002 WL 31174470, at *16 [SDNY Sept 26, 2002]). Where a subsequent purchaser of collateral takes subject to a security interest, the secured creditor may maintain an action against the purchaser for repossession of the goods or conversion (UCC § 9-315 (a) Comment 1; Bank of India v Weg and Myers, P.C., 257 AD2d 183, 191 [1st Dept 1999]). Broyhill has not attempted to maintain an action for either repossession or conversion against the non-party buyers of the furniture in which it maintains a security interest, and likely would be unsuccessful if such actions were commenced.

  2. Bank of Geneva v. Case Credit

    37 A.D.3d 1169 (N.Y. App. Div. 2007)   Cited 4 times

    We therefore modify the order in appeal No. 1 accordingly. "[T]o establish a conversion claim, '[i]t need only be shown that a plaintiff had . . . an immediate superior right of possession to the identifiable fund and [that defendants exercised] un-authorized dominion over the [proceeds] in question to the exclusion of plaintiffs rights'" ( Bank of India v Weg Myers, 257 AD2d 183, 191). Although plaintiff is correct that it had a superior right to the proceeds of the original equipment ( see UCC 9-203 [f]), we cannot agree with plaintiff that the Case defendants exercised unauthorized dominion or control over either the original equipment or the proceeds from the sale of that equipment, i.e., the discount on the purchase of the new equipment ( cf. Bank of India, 257 AD2d at 191-192).

  3. Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC

    332 F. Supp. 3d 729 (S.D.N.Y. 2018)   Cited 29 times   1 Legal Analyses
    Denying motion to dismiss claims against three corporate defendants who were lumped together in complaint

    Id."An equitable lien is ‘a right ... to have a fund, specific property, or its proceeds, applied in whole or in part to the payment of a particular debt.’ " Bank of India v. Weg & Myers, 257 A.D.2d 183, 691 N.Y.S.2d 439, 445 (1999). This framework, however, still does not permit the transfer of an individual's present ownership interest in future receivables for damages to recover for personal injury, which is what the NFL Purchase Agreements attempt to do, albeit unsuccessfully.

  4. Granite Commercial Industries, LLC v. Landmark American Insurance

    909 F. Supp. 2d 191 (E.D.N.Y. 2012)   Cited 3 times
    Explaining that loss payee on debtor's business interruption insurance policy held a perfected security interest in the policy

    In such cases, the “balance of equities,” allows competing claims to be according priority over an attorney's claim for fees. While Banque Indosuez involved judgments arising out of a single lawsuit, the court is convinced that the facts here are closer to that case than LMWT, and that the equities here require affording precedence to the claim of CIT. Supportive of the court's holding here is Bank of India v. Weg and Myers, P.C., 257 A.D.2d 183, 691 N.Y.S.2d 439 (1st Dep't 1999). There, as here, a lender asserting a claim as the holder of a prior perfected security interest in damaged collateral, sought to recover the proceeds of an insurance policy from the debtor's law firm.

  5. Fleet Capital Corp. v. Yamaha Motor Corp., U.S.A.

    01 Civ. 1047 (AJP) (S.D.N.Y. Sep. 25, 2002)   Cited 20 times
    Noting that § 9-306 a perfected security interest in collateral resulting in identifiable cash proceeds from the disposition of that collateral remains perfected in the identifiable proceeds

    Where "a security interest continues in collateral notwithstanding sale," N.Y. U.C.C. 9-306(2), "the secured creditor may maintain an action for conversion against the transferee." Lake Ontario Prod. Credit Ass'n v. Partnership of Grove, 138 A.D.2d 930, 931, 526 N.Y.S.2d 985, 985-86 (4th Dep't), appeal denied, 72 N.Y.2d 806, 532 N.Y.S.2d 847 (1988); accord, e.g., Hong Kong Shanghai Banking Corp. v. HFH USA Corp., 805 F. Supp. 133, 145 (W.D.N.Y. 1992); Standard Dyeing Finishing Co. v. Arma Textile Printers Corp., 85 Civ. 5399, 1991 WL 49782 at *7 (S.D.N.Y. Mar. 25, 1991) ("an action seeking damages for conversion is a proper remedy for the holder of a security interest . . . to bring against a third party . . . when the debtor . . . has made an unauthorized disposition of the collateral. . . ."); Bank of India v. Weg Myers. P.C. 257 A.D.2d 183, 191, 691 N.Y.S.2d 439, 445 (1st Dep't 1999) (defendant "converted the [insurance] proceeds in its possession to its own benefit and that of its client by knowingly exercising unauthorized dominion and control . . . over property in which the Bank, as a secured creditor, had a superior property interest."). For the reasons discussed below, Fleet's security interest continued in the golf cars "purchased" by YMUS via offset because the Fleet Loan Agreement authorized sales by Bruedan only to buyers in the ordinary course of business and YMUS was not a buyer in the ordinary course of business.

  6. TipTop Restoration, Inc. v. Zokaeem

    No. B312880 (Cal. Ct. App. Aug. 31, 2022)

    On January 11, 2021, TipTop submitted supplemental briefing in which it identified two cases to support its arguments for equitable lien and conversion: Bank of India v. Weg and Myers, P.C. (N.Y.App.Div. 1999) 257 A.D.2d 183 and McCafferty v. Gilbank (1967) 249 Cal.App.2d 569. In the supplemental brief, TipTop also raised for the first time the contention that Zokaeem and TipTop entered into an agreement, purportedly evidenced by Zokaeem's November 27, 2018 and December 11, 2018 emails to TipTop.

  7. AI CA LLC v. Crediautousa Fin. Co.

    20-cv-2352-MMA (AHG) (S.D. Cal. Sep. 30, 2022)

    And pursuant to Article 9, a secured creditor undoubtedly has an immediate possessory interest in collateral after defaults. See U.C.C. § 9-606; see also, e.g., Bank of India v. Weg & Myers, P.C., 257 A.D.2d 183, 191 (N.Y.App.Div. 1999) (finding that as a secured creditor, the plaintiff had a “superior property interest” in proceeds of collateral after default and granting summary judgment in the plaintiff's favor on a claim for conversion). However, here the conversion is alleged to have occurred prior to the default, and so Article 9 does not create an immediate right to possession.

  8. Heise v. Nat'l R.R. Passenger Corp. Amtrak

    1:20-CV-0878 (LEK/ATB) (N.D.N.Y. Nov. 17, 2021)

    Plaintiff was "on notice that something might be amiss" by that time, Ruso v. Morrison, 695 F.Supp.2d 33, 48 (S.D.N.Y. 2010) (internal quotation marks and citation omitted), and he alleges no facts that plausibly suggest that he satisfied his duty to investigate the facts underlying his dispute. See also Harris v. Wilmorite Corp., 691 N.Y.S.2d 439, 440 (4th Dep't 1999) ("The doctrine of equitable estoppel will not apply if the plaintiff possesses timely knowledge sufficient to place him or her under a duty to make inquiry and ascertain all relevant facts prior to the expiration of the applicable Statute of Limitations." (internal quotation marks and citation omitted))

  9. Antoine v. Am. Sec. Ins. Co.

    18-CV-05850(KAM)(VMS) (E.D.N.Y. Feb. 7, 2020)   Cited 1 times

    Even if the court were to assume that Antoine intended for the section (g) modification clause to curtail the effect of the preceding paragraph, the court would still conclude that the POA authorizes Katz to proceed in the present litigation because New York courts have viewed litigation concerning insurance proceeds in connection with real property as litigation concerning the property. See Bank of India v. Wig & Myers, P.C., 257 A.D.2d 183, 190 (1st Dep't 1999) (describing insurance recovery as one method of protecting creditor's interest in real property); Badillo v. Tower Ins. Co., 92 N.Y.2d 790, 794 (N.Y. 1999) (describing same with respect to personal property). Furthermore, the "natural meaning" of the section (g) modification clause supports this view.

  10. Richter v. Van Amberg

    97 F. Supp. 2d 1255 (D.N.M. 2000)   Cited 14 times
    Stating the elements of an attorney's breach of fiduciary duty to his or her client under New Mexico law

    Among these, courts in New York, Kansas, and Nebraska have explicitly held that an action for deceit and collusion does not lie outside the context of pending judicial proceedings. See Nardella v. Braff, 621 F. Supp. 1170 (S.D.N.Y. 1985); Mohr v. State Bank of Stanley, 244 Kan. 555, 770 P.2d 466, 476 (1989); Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684, 693 (1960); Bank of India v. Weg Myers, P.C., 257 A.D.2d 183, 691 N.Y.S.2d 439, 446 (1999); Singer v. Whitman Ransom, 83 A.D.2d 862, 442 N.Y.S.2d 26, 27 (1981). The New York statute appears to be the paradigm of such statutes with application only to judicial proceedings.