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Dayrich Trading, Inc. v. N.Y. State Dep't of Envtl. Conservation

New York State Court of Claims
Jan 27, 2015
# 2015-049-009 (N.Y. Ct. Cl. Jan. 27, 2015)

Opinion

# 2015-049-009 Claim No. 124795 Motion No. M-85648 Cross-Motion No. CM-85809

01-27-2015

DAYRICH TRADING, INC. v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Law Offices of James F. Simermeyer, P.C. By: James F. Simermeyer, Esq. Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General


Synopsis

The Court denied defendant's motion to dismiss a claim sounding in conversion as untimely, and denied claimant's motion for summary judgement.

Case information


UID:

2015-049-009

Claimant(s):

DAYRICH TRADING, INC.

Claimant short name:

DAYRICH

Footnote (claimant name) :

Defendant(s):

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

124795

Motion number(s):

M-85648

Cross-motion number(s):

CM-85809

Judge:

DAVID A. WEINSTEIN

Claimant's attorney:

Law Offices of James F. Simermeyer, P.C. By: James F. Simermeyer, Esq.

Defendant's attorney:

Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 27, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In a claim filed and served on August 4, 2014, claimant Dayrich Trading, Inc. ("Dayrich") seeks monetary damages for the loss of 37 kilograms of glass eels or baby eels that were taken by the New York State Department of Environmental Conservation ("DEC") and released into the wild. According to the claim, Dayrich is a company that exports merchandise primarily to Asia. In this instance, Dayrich attempted to ship live glass eels that were purchased from a licensed trader in Maine and from the Unkechauge Indian Nation in Long Island, New York. The eels were transported to JFK International Airport for shipment, and on May 3, 2014 DEC took the eels into its possession. On May 7, 2014, DEC released the eels into the wild. The claim states an accrual date of May 7, 2014.

Defendant brings this pre-answer motion to dismiss the claim as untimely, and is supported by the affidavit of Assistant Attorney General Edward J. Curtis, Jr.. The State argues that damages were reasonably ascertainable when the eels were confiscated, and thus the claim accrued on May 3. Pursuant to Court of Claims Act § 10(3-b), the latest day to serve and file the claim would have been 90 days thereafter. If the State's argument on the accrual date is correct, claimant's last day to file and serve a timely claim would have been August 1, 2014, and the claim would be late.

Claimant opposes defendant's motion and cross moves for summary judgment, supported by a memorandum or law, affirmation of counsel and various documentary exhibits. Claimant asserts that there was no ascertainable damage until May 7, when the eels were released into the wild. According to claimant, when the eels were seized on May 3, "there was no way to know the eels would be released . . . ." (Cl. Mem. at 6).

Claimant asserts that after the eels were seized, its attorney Winnie Mok "entered into negotiations" with DEC that lasted from May 5 though May 9 "to have the eels returned to Dayrich" (id. at 4). Claimant states that on May 4, the DEC brought the eels to Dayrich to be repackaged and fed, thereby indicating that the DEC had no intention to release them into the wild (id. at 6-7). Present counsel was retained by Dayrich, and commenced an action and brought an order to show cause and temporary restraining order in Supreme Court, Queens County, on May 9. Attached as exhibits to claimant's papers is a copy of the OTSC/TRO (C's Aff. in Supp. Ex. 3), and the Affirmation of Monica Kreshik (C's Aff. in Supp. Ex. 2), associate attorney with the DEC Bureau of General Enforcement, submitted in response thereto.

The Kreshik affirmation reveals the following:

• on May 3 DEC "could not verify" whether the eels were legally gathered (id. ¶ 10);

• on that day, DEC seized the eels "as evidence" in a criminal investigation, and gave claimant a notice of seizure receipt for the property (id. ¶ 13);

• between May 3 through May 5, DEC worked with Dayrich to ensure the viability of the eels, by allowing Dayrich to care for them (id. ¶¶ 14-15);

• through May 6, DEC continued to say the eels were seized as part of a criminal investigation (id. ¶ 17);

• on May 6, Kreshik informed Dayrich that the eels would not be returned, and would be released (id. ¶ 20);

• on May 7 the eels were released (id. ¶ 22); and

• on May 8 claimant's counsel was informed of the release (id. ¶ 23).

Discussion

Although claimant does not identify the specific cause of action under which it is proceeding, its allegations that the State wrongfully seized its property clearly sound in conversion. Conversion is the "unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights" (see State of New York v Seventh Regiment Fund, 98 NY2d 249, 259 [2002] [internal quotations and citations omitted]). The mere taking of possession over the property at issue does not constitute conversion, if it does not exclude the other from exercising its rights (id.).

Here, Kreshik's statements concerning the back and forth between DEC and Dayrich do not indicate that on May 3, when the eels were initially seized, the State exercised possession over them to the exclusion of claimant. To the contrary, she states that they were seized only as "evidence" in an investigation (i.e., DEC was still looking into their legality); claimant was given a receipt for the property; and it was allowed to continue to care for the eels.

These statements indicate that DEC did not exercise possession over the eels to the exclusion of Dayrich until May 6 at earliest, when it told Dayrich the eels would be released (see Seventh Regiment Fund, 98 NY2d at 259] ["the State's cause of action against the Fund accrued, at the earliest, when the Fund exercised ownership over the memorabilia, to the exclusion of the State's rights"]).

Moreover, to the extent the initial seizure was lawful, no cause of action accrues until "the defendant refuses to return the property after a demand or sooner disposes of the property" (Matter of White v City of Mount Vernon, 221 AD2d 345 [2d Dept 1995]). Again, the evidence before me on this motion - the Kreshik affirmation - indicates that the refusal to return the eels was conveyed on May 6, when DEC informed Dayrich it would be releasing them (see Kreshik Aff. ¶ 20 ["On May 6, 2014, I advised Ms. Mok that the baby eels would not be returned to Mr. Sum"]).

Since the only competent evidence before me indicates that the appropriate accrual date was May 6, and the filing and service on August 4 came ninety days later, the claim is timely. I therefore deny defendant's motion to dismiss.

As to claimant's application for summary judgment, Dayrich has the burden to "tender[] sufficient evidence to eliminate any material issues of fact from the case" (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). An affirmation from an attorney without personal knowledge cannot sustain this burden (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Here, there is nothing in the record by any party with personal knowledge to establish the merits of Dayrich's claim. Rather, claimant simply posits that it is entitled to summary judgment based on Kreshik's admission that the eels were returned to the wild (Cl. Reply ¶ 7). However, the Kreshik affirmation does not establish that defendant acted in an unauthorized manner. Rather, she states that pursuant to 6 NYCRR Parts 10 and 40, it is illegal to take possession of this species of eel if they are less than 6 inches long, and that the eels in question were less than 6 inches long (C's Aff. in Supp. Ex. 2, ¶ 6). That affirmation itself prevents claimant from establishing the illegality of DEC's seizure as a matter of law.

Finally, claimant asserts that DEC had no jurisdiction over the matter. But its argument in this regard is unsupported by reference to any authority.

Thus, in view of the foregoing, it is

ORDERED that motion no. M-85648 is denied; and it is further

ORDERED that cross motion no. CM-85809 is denied.

January 27, 2015

Albany, New York

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibits.

2. Claimant's Notice of Cross Motion, Affirmation in Support, Memorandum of Law and annexed exhibits.

3. Claimant's Reply Affirmation.


Summaries of

Dayrich Trading, Inc. v. N.Y. State Dep't of Envtl. Conservation

New York State Court of Claims
Jan 27, 2015
# 2015-049-009 (N.Y. Ct. Cl. Jan. 27, 2015)
Case details for

Dayrich Trading, Inc. v. N.Y. State Dep't of Envtl. Conservation

Case Details

Full title:DAYRICH TRADING, INC. v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL…

Court:New York State Court of Claims

Date published: Jan 27, 2015

Citations

# 2015-049-009 (N.Y. Ct. Cl. Jan. 27, 2015)