S.C.S. Enterprises, Inc. v. Iafrate

In an action to recover damages for conversion of personal property, the defendant appeals from an order of the Supreme Court, Nassau County (Molloy, J.), entered November 19, 1992, which denied his motion to dismiss the complaint pursuant to CPLR 3211. 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 AD2d 406, 408). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.