| Elias v Ferri |
| 2007 NY Slip Op 10095 [46 AD3d 743] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Bruce Elias et al., Appellants, v Charlotte Ferri et al.,Respondents. |
—[*1] Pelle & Pelle, Massapequa, N.Y. (Dominick A. Pelle of counsel), for respondents.
In an action, inter alia, to recover damages for conversion, the plaintiffs appeal from ajudgment of the Supreme Court, Suffolk County (Baisley, J.), dated April 5, 2006, which, after ajury trial, and upon the granting of the defendants' motion pursuant to CPLR 4401, made at theclose of evidence, to dismiss the complaint for failure to establish a prima facie case, is in favorof the defendants and against them dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
Viewing the evidence in the light most favorable to the plaintiffs and giving them the benefitof every favorable inference (see Rotta vFerreira, 16 AD3d 399 [2005]; Zboray v Fessler, 154 AD2d 367 [1989]), theSupreme Court properly granted the defendants' motion pursuant to CPLR 4401, made at theclose of evidence, to dismiss the complaint for failure to establish a prima facie case. Theevidence presented at trial conclusively demonstrated that all of the elements required byparagraph 22 of the subject lease, in order for the personal property at issue to be deemedabandoned by the plaintiffs and to become the personal property of the defendants, weresatisfied. Specifically, the plaintiffs were in default in rent payments, they were dispossessed ofthe premises, and they failed to remove the property at issue prior to the default or prior to theissuance of the final order or execution of the warrant of eviction. Ritter, J.P., Florio, McCarthyand Dickerson, JJ., concur.