Opinion
2016–09712 Index No. 9429/15
03-21-2018
Craig GIARDINI, et al., appellants, v. Saverino G. SETTANNI, et al., respondents.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellants.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellants.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated March 31, 2016. The order, insofar as appealed from, denied the plaintiffs' motion for summary judgment on their causes of action to recover damages for conversion, to recover on an account stated, and for injury to property.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs, the owners and operators of a vehicle repair shop, allege that they repaired, at the defendants' request, a vehicle owned by the defendants, and that the defendants removed their vehicle from the plaintiffs' premises without authorization and without paying for the repairs. The plaintiffs brought this action, inter alia, to recover damages for conversion, to recover on an account stated, and to recover damages for damage the defendants allegedly caused to another vehicle on the plaintiffs' property.
In order to succeed on a cause of action to recover damages for conversion, a plaintiff must show (1) legal ownership or an immediate right of possession to a specific identifiable thing and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right (see Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C. , 125 A.D.3d 822, 824, 6 N.Y.S.3d 65 ; Zendler Const. Co., Inc. v. First Adj. Group, Inc. , 59 A.D.3d 439, 873 N.Y.S.2d 134 ). Here, the plaintiffs failed to establish, prima facie, that they had an immediate right of possession to the defendants' vehicle and failed to establish that the defendants exercised unauthorized dominion over the vehicle (see Matter ofNational Union Fire Ins. Co. of Pittsburgh, Pa. v. Eland Motor Car Co. , 85 N.Y.2d 725, 628 N.Y.S.2d 238, 651 N.E.2d 1257 ; Matter of BMW Bank of N. Am. v. G & B Collision Ctr., Inc. , 46 A.D.3d 875, 850 N.Y.S.2d 470 ).
With regard to the cause of action to recover on an account stated, the plaintiffs failed to establish, prima facie, that there was an express or implied agreement on the cost of the alleged repairs made to the defendants' vehicle (see Caring Professionals, Inc. v. Landa , 152 A.D.3d 738, 739, 60 N.Y.S.3d 193 ; Bashian & Farber, LLP v. Syms , 147 A.D.3d 714, 715, 46 N.Y.S.3d 202 ; Episcopal Health Servs., Inc. v. POM Recoveries, Inc. , 138 A.D.3d 917, 31 N.Y.S.3d 113 ; Raytone Plumbing Specialities, Inc. v. Sano Constr. Corp. , 92 A.D.3d 855, 939 N.Y.S.2d 116 ; American Express Centurion Bank v. Cutler , 81 A.D.3d 761, 762, 916 N.Y.S.2d 622 ).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment.
RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.