Opinion
2018–13285 Index No. 50785/18
09-25-2019
EBURY FUND 1, LP, Appellant, v. ARQUE TAX RECEIVABLE FUND, LP, et al., Respondents.
Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for appellant. Cuddy & Feder LLP, White Plains, N.Y. (Brendan M. Goodhouse of counsel), for respondent David Bullock.
Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for appellant.
Cuddy & Feder LLP, White Plains, N.Y. (Brendan M. Goodhouse of counsel), for respondent David Bullock.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract and conversion, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 28, 2018. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action. ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for breach of contract and conversion. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the second, third, and fourth causes of action. The Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, which was asserted against the defendant David Bullock to recover damages for conversion. "[A] claim of conversion cannot be predicated on a mere breach of contract" ( East End Labs., Inc. v. Sawaya , 79 A.D.3d 1095, 1096, 914 N.Y.S.2d 250, [internal quotation marks omitted]; see Sommer v. Federal Signal Corp. , 79 N.Y.2d 540, 551–552, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ). Since the plaintiff "failed to set forth allegations which would constitute a wrong separate and distinct from an alleged breach of contract which could give rise to independent tort liability" ( East End Labs., Inc. v. Sawaya , 79 A.D.3d at 1096, 914 N.Y.S.2d 250 ; see Greater Bright Light Home Care Servs., Inc. v. Jeffries–El , 151 A.D.3d 818, 824, 58 N.Y.S.3d 68 ; Weiss v. Michael Taylor, Ltd. , 95 A.D.3d 1305, 1306, 944 N.Y.S.2d 903 ), we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action.
MASTRO, J.P., MALTESE, CONNOLLY and IANNACCI, JJ., concur.