| Trans-World Trading, Ltd. v North Shore Univ. Hosp. atPlainview |
| 2009 NY Slip Op 05958 [64 AD3d 698] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Trans-World Trading, Ltd., Doing Business as Atlantic Balloon,Appellant, v North Shore University Hospital at Plainview, Respondent, et al.,Defendants. |
—[*1] Garfunkel, Wild & Travis, P.C., Great Neck, N.Y. (Michael K. Keane and Courtney A.Rogers of counsel), for respondent.
In an action, inter alia, to recover damages for conversion, the plaintiff appeals, as limited byits brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.),entered December 7, 2007, as denied its motion for leave to amend the complaint and grantedthat branch of the cross motion of the defendant North Shore University Hospital at Plainviewwhich was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In the 1990s the defendant North Shore University Hospital at Plainview (hereinafter theHospital), contracted with James Saracco, doing business as Deluxe Coffee Shop (hereinafter thecoffee shop), to operate a coffee and gift shop on the Hospital's premises. The plaintiffTrans-World Trading, Ltd., doing business as Atlantic Balloon, was one of the coffee shop'ssuppliers. In 1999 the Hospital decided to close the coffee shop. The Hospital removedmerchandise left in the coffee shop and placed it in an off-site storage facility pending resolutionof conflicting claims of ownership of the merchandise by the plaintiff and the coffee shop.
The plaintiff commenced this action seeking, inter alia, damages for conversion against theHospital. The cause of action to recover damages for conversion alleged that the goods allegedlyconverted were housed in the coffee shop. In May 2007 the plaintiff moved for leave to amendthe complaint to add a cause of action against the Hospital alleging tortious interference with theplaintiff's contractual relations with the coffee shop. It also sought leave to amend the cause ofaction to recover damages for conversion against the Hospital to include, in addition to the goodshoused in the coffee shop, goods that were purportedly stored in the Hospital basement.
A motion for leave to amend a complaint should be freely granted "unless the proposedamendment is 'palpably insufficient or patently devoid of merit, or where the delay in seeking theamendment would cause prejudice or surprise' " (Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50AD3d 1085, 1085 [2008], quoting Lucido v Mancuso, 49 AD3d 220, 222 [2008]; see G.K. Alan Assoc., Inc. v Lazzari,44 AD3d 95, 99 [2007], affd 10 NY3d 941 [2008]). The Supreme Court [*2]providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to amend the cause of action to recover damages forconversion to include goods that were purportedly stored in the Hospital's basement. Althoughexposure to additional liability alone does not, in and of itself, amount to prejudice (seeLoomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Commissioners ofState Ins. Fund v Service Unlimited, USA, Inc., 50 AD3d at 1085), in this case, the five-yeardelay in seeking the amendment based upon facts that the plaintiff had known since the inceptionof this action caused the Hospital surprise and prejudice. The plaintiff's claim that the Hospitalconverted a few hundred boxes of goods stored in its basement was not discernible from thecomplaint. Thus, for more than five years, the Hospital proceeded on the premise that themerchandise underlying the conversion claim was housed inside the coffee shop (see Morris v Queens Long Is. Med. Group,P.C., 49 AD3d 827 [2008]; cf. Schutz v Finkelstein Bruckman Wohl Most &Rothman, 247 AD2d 460, 461 [1998]). Moreover, the plaintiff failed to present a reasonableexcuse for the delay. In light of the prejudice, it is not necessary to address whether the proposedamendment was palpably insufficient or patently devoid of merit (see Morris v Queens LongIs. Med. Group, P.C., 49 AD3d at 829; G.K. Alan Assoc., Inc. v Lazzari, 44AD3d at 99; Lucido v Mancuso, 49 AD3d at 222).
Under the circumstances of this case, the Supreme Court also providently exercised itsdiscretion in denying that branch of the plaintiff's motion which was for leave to amend thecomplaint to add a cause of action against the Hospital alleging tortious interference withcontract (see Scofield v DeGroodt,54 AD3d 1017, 1018 [2008]; Benyo v Sikorjak, 50 AD3d 1074, 1076 [2008]; Lucido vMancuso, 49 AD3d at 222; Beja vMeadowbrook Ford, 48 AD3d 495 [2008]).
Finally, the Supreme Court properly granted that branch of the Hospital's motion which wasfor summary judgment dismissing the complaint insofar as asserted against it. "Where one isrightfully in possession of property, one's continued custody of the property and refusal todeliver it on demand of the owner until the owner proves his right to it does not constitute aconversion" (Mehlman Mgt. Corp. v Fong May Fan, 121 AD2d 609, 610 [1986]; seeBradley v Roe, 282 NY 525, 531 [1940]). The Hospital demonstrated its entitlement tojudgment as a matter of law on the plaintiff's cause of action to recover damages for conversionof the merchandise located in the coffee shop by establishing, prima facie, that it was rightfullyin possession of that merchandise, and that the plaintiff never proved its right to thatmerchandise. In opposition to the Hospital's prima facie showing, the plaintiff failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]).Mastro, J.P., Dillon, Santucci and Balkin, JJ., concur. [See 2007 NY Slip Op 33982(U).]