Opinion
June 6, 1994
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed, with costs.
We agree with the Supreme Court that there was no merit to the defendant's motion to dismiss. The complaint sufficiently stated a cause of action sounding in conversion (see, CPLR 107, 3013; Pritzker v. Falk, 58 Misc.2d 989).
The parties dispute whether the plaintiff scheduled the allegedly converted assets with the bankruptcy court, and whether the trustee abandoned those assets, which facts, if undisputed, could have been determinative of the plaintiff's standing to bring this action. Thus, dismissal on that ground is inappropriate (see, American Cement Corp. v. Dunetz Bros., 47 Misc.2d 747; cf., DeLarco v. DeWitt, 136 A.D.2d 406, 408). Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.