Opinion
No. 2003-105 K C.
Decided January 27, 2004.
Appeal by defendants from a judgment of the Civil Court, Kings County (D. Silber, J.), entered August 20, 2002, awarding plaintiff the sum of $1,568.54.
Judgment unanimously reversed without costs and action dismissed.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Plaintiff commenced the instant action to recover damages for defendants' failure to return his used Compaq computer. Defendants acknowledged that the computer was still in their home in Utica where plaintiff, their brother-in-law, had it stored, but testified that they had not been asked to return it, and that it was plaintiffs obligation to retrieve it. The court found in favor of plaintiff, awarding him the total cost of the computer.
Plaintiff's wife testified that she traveled to defendants' home with the intention of retrieving the computer but she "forgot" to ask for it. Accordingly, plaintiff failed to establish defendants' liability for conversion of his property in that he did not demonstrate that defendants refused absolutely and unqualifiedly to surrender possession after a demand. "A conversion implies a wrongful act, a mis-delivery, a wrongful disposition, or withholding of the property" ( Magnin v. Dinsmore, 70 NY 410, 417). A mere detention of property, unaccompanied by conduct in opposition to the rights of the owner, does not amount to a conversion ( see 23 NY Jur 2d, Conversion, and Action for Recovery of Chattel § 30). An action in conversion will not lie unless and until defendants either refuse the demand of plaintiff for the return of the computer, or commit an overt and positive act of conversion.
In view of the foregoing, the judgment must be reversed and the action dismissed.