Conversion – Page 4 – New York Appellate Digest

In affirming the dismissal of a complaint in which it was alleged the purchase of a building was induced by misrepresentations, the First Department noted there can be no action for conversion of real property, and there can be no action for conversion of money which was transferred pursuant to an agreement:

The motion court properly dismissed plaintiff’s sixth cause of action alleging conversion. As it accurately noted, to the extent plaintiff based that cause of action on an alleged conversion of its 7% fee interest in the premises, the claim must fail because a party may not sustain a claim for conversion of real property …. Similarly, while a party can properly assert a claim for conversion of money …the $2 million cannot be the subject of a conversion claim here. Even accepting the truth of the allegations in the complaint, plaintiff does not allege that defendants wrongfully exercised dominion over those funds in derogation of plaintiff’s ownership … [conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights][internal citations omitted]). On the contrary, by alleging that it agreed to, and did, transfer the funds in return for the 7% interest in the property, plaintiff tacitly concedes that possession of the money was authorized. B & C Realty, co v 159 Emmut Props LLC, 3013 NY Slip Op 03913, 1st Dept, 5-30-13

In an action for breach of contract, waste, injury to real property, trespass, conversion and private nuisance, based upon clearing land of trees pursuant to an unrecorded easement, the Second Department wrote:

Pursuant to RPAPL 861(1), a property owner may maintain an action for damages against any person who, without the consent of the owner, removes or causes to be removed trees on the owner’s property … . “To recover damages based on the tort of private nuisance, a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant’s conduct”… . “In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff’s rights” … . * * *

“[A]n unrecorded conveyance of an interest in real property is deemed void as against a subsequent good faith purchaser for value who acquires his interest without actual or constructive notice of the prior conveyance” … . However, “ [w]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser’” …. “This presumption, however, is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of proper diligence on his part” … . Schulz v Dattero, et al, 2013 NY Slip Op 01815, 2011-05813, 2012-02942, Index No 876/06, 2nd Dept. 3-20-13

No Conversion Action for Real Property; No Conversion Action Where Money Transferred Pursuant to Agreement

Injury to Real Property, Waste, Trespass, Conversion and Private Nuisance Actions Based Upon Removal of Trees from Unrecorded Easement

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