

Jaybar Realty Corp. v Armato (2016 NY Slip Op 05360)





Jaybar Realty Corp. v Armato


2016 NY Slip Op 05360


Decided on July 6, 2016


Appellate Division, Second 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 July 6, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.


2014-06430
 (Index No. 57692/13)

[*1]Jaybar Realty Corp., et al., plaintiffs, 
vJoseph Armato, et al., defendants, Capital One, N.A., also known as Capital One Bank (USA), N.A., also known as Capital One Financial Corp., defendant third-party plaintiff-appellant; Sovereign Bank, N.A., also known as Banco Santander, S.A., third-party defendant- respondent.


Lazer, Aptheker, Rosella & Yedid, P.C., Melville, NY (Joseph C. Savino of counsel), for defendant third-party plaintiff-appellant.
Parker Ibrahim & Berg LLC, New York, NY (John Falzone of counsel; Finestein & Malloy, LLC [Michael D. Malloy, pro hac vice, and Russell M. Finestein], former counsel on the brief), for third-party defendant-respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for the conversion of certain checks, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated May 19, 2014, as granted the motion of the third-party defendant pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted the third-party defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint. Accepting the allegations in the third-party complaint as true, and affording the defendant third-party plaintiff the benefit of every favorable inference (see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884; Leon v Martinez, 84 NY2d 83, 87), the third-party complaint failed to state a cause of action under UCC 3-405(1)(a) (see Pellicio v Hartford Life Ins. Co., 262 AD2d 293, 294; Shube v Cheng, 157 Misc 2d 255, 259, affd 208 AD2d 606). The third-party complaint also failed to state a cause of action for common-law indemnification and contribution (see CPLR 3013; Raquet v Braun, 90 NY2d 177, 183; Seldin v Smith, 76 AD3d 623, 625).
The defendant third-party plaintiff's remaining contention is without merit.
RIVERA, J.P., ROMAN, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




