Rosario v. Simmons

Rosario v Simmons (2019 NY Slip Op 00550) Rosario v Simmons 2019 NY Slip Op 00550 Decided on January 29, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 29, 2019 Friedman, J.P., Gische, Kapnick, Gesmer, Moulton, JJ. 8216 306160/14 [*1]Mercedes Rosario, Plaintiff-Respondent, v Michael Simmons, Defendant-Appellant, Alexis Seda, Defendant. Richard E. Hershenson, New York, for appellant. Law Offices of Marc H. Wasserman, P.C., Mount Sinai (Marc H. Wasserman of counsel), for respondent. Order, Supreme Court, Bronx County (Barry Salman, J.H.O.), entered on or about March 23, 2018, which, to the extent appealed from as limited by the briefs, found that defendant Michael Simmons wrongfully converted plaintiff's winning lottery ticket, unanimously affirmed, without costs. Any presumption that defendant, as bearer of the lottery ticket, was its owner, was rebutted by plaintiff's credible testimony that she purchased the ticket and hid it for safekeeping, only to have it stolen from her (see Benjamin v Benjamin, 106 AD2d 599, 600 [2d Dept 1984], affd 65 NY2d 756 [1985]). Because defendant refused to return the ticket's proceeds upon the demand of plaintiff, its rightful owner, he is liable for conversion, regardless of his role in the actual theft of the ticket (see State of New York v Seventh Regiment Fund, 51 AD3d 463 [1st Dept 2008], lv denied 11 NY3d 706 [2008]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 29, 2019 DEPUTY CLERK