BUGARSKY v. MARCANTONIO


254 A.D.2d 384 (1998)

678 N.Y.S.2d 737

Heidi Bugarsky, Respondent, v. Frank Marcantonio et al., Defendants, and Mark Varrichio, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 19, 1998


Ordered that the order is modified by deleting the provision thereof denying the motion in its entirety and substituting therefor a provision granting that branch of the motion which was for summary judgment dismissing the sixth cause of action insofar as asserted against the appellant; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the appellant's motion for summary judgment insofar as it sought dismissal of the causes of action for replevin and to recover damages for conversion insofar as asserted against him. There are triable issues of fact as to whether the plaintiff has a possessory right to the stock certificates at issue (see, Hofferman v Simmons, 290 N.Y. 449, 455), and whether the appellant exercised "unauthorized dominion [and control over the subject stock] to the exclusion of the plaintiff's rights" (Aetna Cas. & Sur. Co. v Glass, 75 A.D.2d 786). However, the appellant was entitled to summary judgment dismissing the cause of action to recover damages for unjust enrichment, as there was no showing that he obtained any benefit that in equity and good conscience he should not have obtained or possessed because it rightfully belonged to another (see, Mente v Wenzel, 178 A.D.2d 705, 706).


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