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

601
CA 14-02023
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


PAULA ANN REEVES, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GARY J. GIANNOTTA, AS CHIEF OF AUBURN POLICE
DEPARTMENT, CITY OF AUBURN, OFFICER SKARDINSKI,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


LEMIRE, JOHNSON & HIGGINS, LLC, MALTA (BRADLEY J. STEVENS OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

STEWART L. WEISMAN, MANLIUS, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Mark H.
Fandrich, A.J.), entered February 19, 2014. The order, inter alia,
denied the motion of defendants-appellants for summary judgment
dismissing the complaint against them.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion of
defendants-appellants is granted, and the complaint is dismissed
against them.

     Memorandum: Plaintiff commenced this action alleging that
“[d]efendants intentionally interfered with [her] right of possession
of . . . [f]irearms” that the police removed from her parents’ home
while executing a warrant for their arrest for selling drugs.
According to plaintiff, “a couple of months” after her parents were
arrested, she and her mother agreed that plaintiff would receive the
firearms in exchange for the money that plaintiff gave to her parents
for legal fees. When plaintiff contacted the Auburn Police
Department, personally and through her attorney, trying to retrieve
the firearms, she and her attorney were told that plaintiff had to
obtain a court order to retrieve the firearms. County Court issued an
order on December 10, 2010, awarding plaintiff ownership and
possession of the firearms (December 2010 order), but the police had
already destroyed the firearms. We conclude that Supreme Court erred
in denying the motion of defendants-appellants (defendants) for
summary judgment dismissing the complaint against them.

     “An actionable ‘conversion takes place when someone,
intentionally and without authority, assumes or exercises control over
personal property belonging to someone else, interfering with that
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                                                         CA 14-02023

person’s right of possession’ ” (LM Bus. Assoc., Inc. v State of New
York, 124 AD3d 1215, 1216-1217, lv denied 25 NY3d 905, quoting
Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50).
“Two key elements of conversion are (1) plaintiff’s possessory right
or interest in the property . . . and (2) defendant’s dominion over
the property or interference with it, in derogation of plaintiff’s
rights” (Colavito, 8 NY3d at 50).

     Defendants met their initial burden with respect to both
elements, and plaintiff failed to raise a triable issue of fact (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). With
respect to the first element, defendants established that plaintiff
did not have a possessory right or interest in the firearms, and
plaintiff failed to raise an issue of fact in that regard. We reject
plaintiff’s contention that she had possessory rights to the firearms
based on the December 2010 order. The cause of action for conversion
accrued when the firearms were destroyed or, as plaintiff
alternatively alleges, misappropriated by members of the police
department after plaintiff made a demand for them, over a month before
plaintiff obtained the court order (see Pecoraro v M&T Bank Corp., 11
AD3d 950, 951; Johnson v Gumer, 94 AD2d 955, 955). Thus, we conclude
that defendants established that “plaintiff did not own, or have
possessory rights to, the property when any such cause[] of action
accrued” (Wild v Hayes, 68 AD3d 1412, 1414).

     Likewise, we reject plaintiff’s contention that she had
possessory rights to the firearms based on an agreement with her
mother. Plaintiff failed to raise an issue of fact with her self-
serving deposition testimony that her mother agreed to give her the
firearms in exchange for assistance with legal fees, and she otherwise
failed to submit any evidence to raise an issue of fact whether she
had a right of possession superior to that of the police who
previously seized the firearms (see Williams v Pinks, Feldman &
Brooks, 141 AD2d 723, 724, lv denied 73 NY2d 701; see also LM Bus.
Assoc., Inc., 124 AD3d at 1217-1218). In addition, plaintiff’s
allegation that the firearms were misappropriated rather than
destroyed “is too speculative to survive defendants’ motion for
summary judgment” (Lincoln Trust v Spaziano, 118 AD3d 1399, 1401; see
Stewart v Kier, 100 AD3d 1389, 1390).

     With respect to the second element, defendants established that
their exercise of control over the firearms was authorized, and
plaintiff failed to raise an issue of fact. Defendants were
authorized to seize the firearms from plaintiff’s parents pursuant to
Penal Law § 400.05, and the same statute directed that those firearms
be destroyed absent, inter alia, a “certificate” from a court or a
district attorney directing that they be preserved (see § 400.05 [2],
[3]). It is undisputed that plaintiff did not attempt to have the
firearms returned to her until the spring of 2010, approximately a
year and a half after the firearms were seized, and Penal Law § 400.05
(2) provides for automatic destruction of seized firearms “at least
once each year.” Inasmuch as plaintiff did not formally challenge the
validity of the seizure prior to the firearms’ destruction and she
conceded at her deposition that she was not the lawful owner of the
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                                                         CA 14-02023

firearms until she received the December 2010 order, defendants’
seizure and destruction of the firearms was authorized by statute and
does not constitute conversion (see LM Bus. Assoc., Inc., 124 AD3d at
1217).

     In light of our determination, we do not address defendants’
remaining contentions.




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
