| Tarleton v Astor Galleries, Ltd. |
| 2010 NY Slip Op 00952 [70 AD3d 811] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Virginia Tarleton, Appellant, v Astor Galleries, Ltd., et al.,Defendants, and Braswell Galleries, Inc., et al., Respondents. |
—[*1] McCarthy Fingar LLP, White Plains, N.Y. (Joseph J. Brophy and Dina M. Aversano ofcounsel), for respondents.
In an action, inter alia, to recover damages for conversion, breach of fiduciary duty,negligence, fraud, and unjust enrichment, the plaintiff appeals from a judgment of the SupremeCourt, Westchester County (Loehr, J.), entered March 4, 2009, which, upon the granting of themotion of the defendants Braswell Galleries, Inc., and Stamford Auction Gallery, LLC, pursuantto CPLR 4401 for judgment as a matter of law, made at the close of the plaintiff's case, is infavor of those defendants and against her, dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly granted the motion of the defendants Braswell Galleries, Inc.,and Stamford Auction Gallery, LLC, pursuant to CPLR 4401 for judgment as a matter of law,made at the close of the plaintiff's case. Viewing the evidence in the light most favorable to theplaintiff, and affording her every favorable inference which reasonably could be drawntherefrom (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Gomez v Casiglia, 67 AD3d 965[2009]; Bryan v Staten Is. Univ.Hosp., 54 AD3d 793, 793-794 [2008]), there was no rational process by which the jurycould find for the plaintiff against those defendants (hereinafter the moving defendants) (see generally Perricone-Bernovich vGentle Dental, 60 AD3d 744, 744-745 [2009]; Elias v Bash, 54 AD3d 354, 357 [2008]; Nichols v Stamer, 49 AD3d 832,833 [2008]). The plaintiff came forward with no evidence of a contractual or fiduciaryrelationship with the moving defendants, nor did she otherwise establish a prima facie caseagainst them with regard to her causes of action to recover damages for conversion, breach offiduciary duty, negligence, fraud, and unjust enrichment, and the jury would have been requiredto engage in impermissible speculation in order to find in her favor against the movingdefendants (see Gomez v Casiglia,67 AD3d 965 [2009]; Godlewska vNiznikiewicz, 8 AD3d 430, 431 [2004]).
The plaintiff's remaining contention regarding the law of the case doctrine is without merit(see S.L. Benfica Transp., Inc. vRainbow Media, Inc., 13 AD3d 348, 349 [2004]). Skelos, J.P., Angiolillo, Balkin andLott, JJ., concur.