        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

301
CA 13-01384
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


HILLCREST HOMES, LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ALBION MOBILE HOMES, INC., DOING BUSINESS AS
HERITAGE ESTATES AND RICHARD DECARLO,
DEFENDANTS-RESPONDENTS.


CROPSEY & CROPSEY, ALBION (CONRAD F. CROPSEY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (JAMES W. KILEY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Orleans County (James
P. Punch, A.J.), entered November 1, 2012. The order, among other
things, granted defendants’ motion to dismiss plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking dismissal of the 45th cause of action and reinstating that
cause of action, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action alleging, inter
alia, conversion and violations of Real Property Law § 233, and sought
damages and injunctive relief. Plaintiff purchased a manufactured
home from a tenant of defendants’ manufactured home park on September
28, 2009. The tenant had a month-to-month lease with defendants, and
plaintiff did not request or apply to become a tenant of defendants’
park. Instead, plaintiff sought to remove the manufactured home in
November and December 2009 but, before it could do so, it was
instructed to leave by defendants because plaintiff had not paid the
storage fees or the refundable security deposit required by
defendants. Lyman Rice, Inc., doing business as Rice Homes (Lyman), a
corporation related to plaintiff, commenced an action against
defendants seeking relief similar to that sought by plaintiff, and we
affirmed the dismissal of the complaint on the ground that Lyman
lacked standing (see Lyman Rice, Inc. v Albion Mobile Homes, Inc., 89
AD3d 1488). Thereafter, plaintiff commenced the present action, and
Supreme Court granted defendants’ motion to dismiss the complaint for
failure to state a cause of action.

     The court properly dismissed all causes of action related to
violations of Real Property Law § 233. Real Property Law § 233 is a
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                                                         CA 13-01384

comprehensive statute governing the duties and responsibilities of
manufactured home tenants and manufactured home park owners (see
Miller v Valley Forge Vil., 43 NY2d 626, 629; Ba Mar v County of
Rockland, 164 AD2d 605, 610-611, appeal dismissed 78 NY2d 877, lv
denied 78 NY2d 982; Frontier Mgt. Corp. v Homgren, 154 Misc 2d 526,
527). Plaintiff sought to recover damages pursuant to section 233 (u)
as a manufactured home tenant. We agree with the court that plaintiff
failed to state a cause of action under section 233 inasmuch as
plaintiff is not a tenant as defined in the statute. Real Property
Law § 233 (a) (1) defines a “manufactured home tenant” as “one who
rents space in a manufactured home park from a manufactured home park
owner or operator for the purpose of parking his manufactured home or
one who rents a manufactured home in a manufactured home park from a
manufactured home park owner or operator.” Here, plaintiff never
sought to become a tenant of defendants’ park upon purchasing the
manufactured home (see generally § 233 [i] [1], [3]) but, rather, it
intended to remove the manufactured home from the park after the sale.

     We agree with plaintiff, however, that the court erred in
granting that part of the motion seeking dismissal of the 45th cause
of action, for conversion, and we therefore modify the order
accordingly. “A conversion takes place when someone, intentionally
and without authority, assumes or exercises control over personal
property belonging to someone else, interfering with that person’s
right of possession” (Colavito v New York Organ Donor Network, Inc., 8
NY3d 43, 49-50; see Tudisco v Duerr [appeal No. 2], 89 AD3d 1372,
1373; LHR, Inc. v T-Mobile USA, Inc., 88 AD3d 1301, 1304). We
conclude that the complaint alleged sufficient facts to state a cause
of action for conversion (see LHR, Inc., 88 AD3d at 1304). The
complaint alleged that plaintiff was the owner of the manufactured
home and that defendants interfered with plaintiff’s possession of
that property by preventing plaintiff from removing the home from
defendants’ park. The court dismissed that cause of action on the
ground that there was no showing that defendants took ownership of the
unit or obtained any benefit from the unit remaining on the property.
We conclude, however, that plaintiff’s allegation that defendants
interfered with plaintiff’s right to possess the property is
sufficient to state a cause of action for conversion (see Colavito, 8
NY3d at 50), which, contrary to the court’s analysis, does not require
an allegation, much less a showing, that defendants took ownership of
the property or benefitted therefrom.

     Defendants contend that plaintiff failed to state a cause of
action for conversion because defendants made efforts in March 2010 to
have the manufactured home removed from their property once they
learned that plaintiff, as opposed to Lyman, was the owner.
Defendants contend that plaintiff cannot seek relief on behalf of
Lyman for the events that occurred in late 2009. We reject that
contention. Lyman was acting as plaintiff’s agent or representative
when it attempted to remove the manufactured home in late 2009 and was
prohibited from doing so by defendants. To the extent that
defendants’ conduct was wrongful, we conclude that plaintiff, as the
owner of the manufactured home, was the injured party in fact and not
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                                                        CA 13-01384

Lyman (see generally Society of Plastics Indus. v County of Suffolk,
77 NY2d 761, 772).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
