         09-1002-cv
         Thyroff v. Nationwide Mutual Insurance Company



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the eleventh day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judge,
10                JED S. RAKOFF, *
11                              District Judge.
12       _______________________________________
13       - - - - - - - - - - - - - - - - - - -X
14
15       Louis E. Thyroff,
16
17                         Plaintiff-Appellant,
18
19                         v.                                      09-1002-cv
20
21       Nationwide Mutual Insurance Company, Nationwide Mutual Fire
22       Insurance Company, Nationwide Life Insurance, Nationwide
23       General Insurance Company, Nationwide Property and Casualty
24       Company, Nationwide Variable Life Insurance Company,



                      *
                     Jed S. Rakoff, Judge of the United States District
               Court for the Southern District of New York, sitting by
               designation.
 1   Colonial Insurance Company of Wisconsin,
 2
 3               Defendants-Appellees. **
 4
 5   - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:             William P. Tedards, Jr., Washington,
 8                              DC.
 9
10   FOR APPELLEES:             Ben M. Krowicki, Bingham McCutchen
11                              LLP, Hartford, CT.
12
13       Appeal from a judgment of the United States District

14   Court for the Western District of New York (Telesca, J.).

15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment of the district court is

17   AFFIRMED.

18       Plaintiff, Louis Thyroff, appeals from summary judgment

19   entered February 12, 2009 in the United States District

20   Court for the Western District of New York (Telesca, J.).

21   Thyroff claims that, following his termination as an

22   insurance agent for defendant Nationwide Mutual Insurance

23   Co. (“Nationwide”), personal files stored on a leased

24   Nationwide computer were converted when the company

25   repossessed it.     The district court granted summary judgment

26   for defendants.     We assume the parties’ familiarity with the



           **
              We direct the Clerk of the Court to amend the
       official caption as noted.

                                      -2-
1    underlying facts, the procedural history, and the issues

2    presented for review.

3        We review summary judgment decisions de novo.   Woodman

4    v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).

5    “According to New York law, ‘[c]onversion is the

6    unauthorized assumption and exercise of the right of

7    ownership over goods belonging to another to the exclusion

8    of the owner’s rights.’”   Thyroff v. Nationwide Mut. Ins.

9    Co. (Thyroff I), 460 F.3d 400, 403-04 (2d Cir. 2006)

10   (quoting Vigilant Ins. Co. of Am. v. Hous. Auth. of El Paso,

11   660 N.E.2d 1121, 1126 (N.Y. 1995) (internal quotation marks

12   omitted)) (alterations in original).   “Where the original

13   possession is lawful, a conversion does not occur until the

14   defendant refuses to return the property after demand or

15   until he sooner disposes of the property.”   Seanto Exports

16   v. United Arab Agencies, 137 F. Supp. 2d 445, 451 (S.D.N.Y.

17   2001) (quoting Schwartz v. Capital Liquidators, Inc., 984

18   F.2d 53, 54 (2d Cir. 1993) (per curiam)) (internal quotation

19   marks omitted).   Thyroff challenges: [i] the district

20   court’s holding that Nationwide’s original possession was

21   lawful, and that demand and refusal was therefore an element

22   of his conversion claim; and [ii] its holding that he failed

23   to produce sufficient evidence of demand to survive summary

                                  -3-
1    judgment.   We see no such error.

2        Thyroff leased a computer from Nationwide and placed on

3    it personal files, of which Nationwide consequently took

4    possession--along with the computer--following termination

5    of the lease.   Thyroff does not argue that repossession of

6    the computer was unlawful.   Under New York law, this is

7    enough to make Nationwide’s possession of Thyroff’s personal

8    files lawful.   See, e.g., Congregation Anshe Sefard of Keap

9    St., Inc. v. Title Guarantee & Trust Co., 50 N.E.2d 534,

10   534-35 (N.Y. 1943) (conversion of personal property

11   established when dispossessed lessee demanded, and was

12   refused, return of property on formerly leased premises);

13   Lewis v. Ocean Navigation & Pier Co., 26 N.E. 301, 304-05

14   (N.Y. 1891) (same); Miller v. Marchuska, 819 N.Y.S.2d 591,

15   593 (N.Y. App. Div. 2006) (“[R]etention by [a real property]

16   owner of goods belonging to [a] dispossessed [former

17   occupant] after demand for their return constitutes

18   conversion.” (emphasis added)); Pecoraro v. M & T Bank

19   Corp., 782 N.Y.S.2d 481, 482-83 (N.Y. App. Div. 2004)

20   (lessor of safe deposit box was lawful possessor of box

21   contents); Reich v. Cochran, 99 N.Y.S. 755, 755-56 (N.Y.

22   App. Div. 1906) (conversion of personal property established

23   when dispossessed lessee demanded, and was refused, return

                                  -4-
1    of property on formerly leased premises).

2        Thyroff relies on this Court’s statement in a prior

3    appeal in this case:

 4            [W]e disagree with the district court’s
 5            finding that Thyroff failed to state a
 6            claim for conversion of any business
 7            records on the AOA because Nationwide owns
 8            the AOA. Nationwide owns the AOA, but that
 9            does not mean that it also owns any records
10            that Thyroff may have saved on the system.
11            Additionally, Thyroff has alleged that he
12            installed his personal computer programs
13            onto the AOA, and it is clear that
14            Nationwide does not own these programs. Had
15            Nationwide leased Thyroff a filing cabinet
16            into which Thyroff placed his personal
17            property, such as a camera, Nationwide
18            would not contend that it could seize
19            Thyroff’s camera when it reclaimed its
20            filing cabinet. The instant situation is
21            no different.

22   Thyroff I, 460 F.3d at 404.     Thyroff argues that the quoted

23   passage controls whether Nationwide’s possession of his

24   files was lawful.   But the issue in Thyroff I was whether

25   Nationwide could avoid liability for conversion because it

26   owned the property at issue outright, free of any possessory

27   rights assertable by Thyroff.     The quite distinct issue here

28   is whether Nationwide can avoid liability for conversion

29   because, even though it did not own the property at issue

30   outright, it was in lawful possession of the property,

31   subject to Thyroff’s superior possessory right.



                                   -5-
1        Did Thyroff produce sufficient evidence of demand to

2    survive summary judgment?     We think not.   The purpose of the

3    demand requirement “is simply ‘that one in lawful possession

4    shall not have such possession changed into an unlawful one

5    until he be informed of the defect of his title and have an

6    opportunity to deliver the property to the true owner.’”

7    Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc.,

8    87 F.3d 44, 49 (2d Cir. 1996) (some internal quotation marks

9    omitted) (quoting Employers’ Fire Ins. Co. v. Cotten, 156

10   N.E. 629, 630 (N.Y. 1927)).     Only one of the documents

11   Thyroff proffers to evidence demand arguably does so: the

12   handwritten notes of a Nationwide employee stating that

13   “[Thyroff had] indicated [to the Nationwide employee] he has

14   lots of personal info on the computer + wants it back.”      But

15   “lots of personal info” is inadequate to notify Nationwide

16   of what electronic information he claimed superior right to,

17   and demanded:   The phrase could refer to anything from

18   emails to customer lists.     See Condrey v. SunTrust Bank of

19   Ga., 429 F.3d 556, 568 (5th Cir. 2005) (under Georgia law,

20   demand for return of plaintiff’s “stuff” deemed

21   insufficiently specific to survive summary judgment); St.

22   Louis Fixture & Show Case Co. v. F.W. Woolworth Co., 88

23   S.W.2d 254, 259, 262 (Mo. Ct. App. 1935) (demand for

                                    -6-
1    “furniture and fixtures” left on abandoned premises

2    insufficient); Commercial Factors Corp. v. Parrillo, 138

3    A.2d 324, 325-26 (R.I. 1958) (plaintiff must have made

4    demand for “specific goods”); 90 C.J.S. Trover & Conversion

5    § 43 (“The demand must be . . . sufficiently definite and

6    complete to apprise the defendant of the specific property

7    claimed.” (footnote omitted)); 18 Am. Jur. 2d Conversion §

8    76 (“Where a part of the goods is claimed by the plaintiff,

9    a failure to specify the articles demanded has been held to

10   render the demand insufficient.”).

11       We have considered Thyroff’s remaining arguments, and

12   find them to be without merit.    For the foregoing reasons,

13   the judgment of the district court is hereby AFFIRMED.

14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16
17                              By: __________________________




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