| Cassadei v County of Schenectady |
| 2008 NY Slip Op 03560 [50 AD3d 1439] |
| April 24, 2008 |
| Appellate Division, Third Department |
| Michael F. Cassadei, Appellant, v County of Schenectady et al.,Defendants, and Stacey Jewett et al., Respondents. |
—[*1] Stacey Jewett, Schenectady, respondent pro se.
Cardona, P.J. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered June 18,2007 in Schenectady County, which, among other things, denied plaintiff's motion for a defaultjudgment against certain defendants, without prejudice to renewal.
Plaintiff commenced this conversion action against various parties who allegedly came incontact with funds stolen from his home, or items purchased with part of those funds. Whendefendants Stacey Jewett, Thomas Anderson, Mario Pecoraro and H & K Towing did not appearin the action, plaintiff moved for default judgments against them. Supreme Court denied themotion based upon the insufficiency of plaintiff's papers, without prejudice to renewal upon thesubmission of proper papers. Plaintiff appeals.[FN1][*2]
We affirm. CPLR 3215 (f) provides that upon anapplication for default judgment, proof of the facts constituting the claim must be suppliedthrough either the applicant's affidavit or a verified complaint. Here, the complaint is not verifiedand plaintiff's affidavit does not provide proof of a conversion by any of the four defendants atissue herein.[FN2]Even assuming that certain additional material submitted by plaintiff may be considered (cf.Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]), he has not established a viableconversion claim against these defendants. Accordingly, the motion for default judgment wasproperly denied.
Mercure, Spain, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Jewett's request for dismissal ofthe complaint as against her is not properly before this Court inasmuch as she has not appealedfrom Supreme Court's order denying her such relief (see Hecht v City of New York, 60NY2d 57, 61 [1983]).
Footnote 2: "A conversion takes place whensomeone, intentionally and without authority, assumes or exercises control over personalproperty belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ DonorNetwork, Inc., 8 NY3d 43, 49-50 [2006] [citation omitted]).