| Schwartz v Sayah |
| 2010 NY Slip Op 03103 [72 AD3d 790] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Walter Schwartz, Respondent, v Lily Sayah, Defendant,and Andrew W. Sayegh, Appellant. |
—[*1] Walter Schwartz, Irvington, N.Y., respondent pro se.
In an action, inter alia, to recover damages for conversion and to recover on a personalguarantee, the defendant Andrew W. Sayegh appeals, as limited by his brief, from so much of anorder of the Supreme Court, Westchester County (Colabella, J.), entered September 30, 2008, asgranted that branch of the plaintiff's motion which was for summary judgment dismissing hiscounterclaims and denied those branches of his cross motion which were for summary judgmentdismissing the complaint insofar as asserted against him and on his counterclaims, and for theimposition of sanctions pursuant to CPLR 3126.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly denied that branch of the cross motion of the defendantAndrew W. Sayegh which was for summary judgment dismissing the complaint insofar asasserted against him. "[T]o establish a cause of action [sounding] in conversion, the plaintiffmust show legal ownership or an immediate superior right of possession to a specific identifiablething and must show that the defendant exercised an unauthorized dominion over the thing inquestion . . . to the exclusion of the plaintiff's rights" (Independence DiscountCorp. v Bressner, 47 AD2d 756, 757 [1975]). Sayegh failed to satisfy his prima facie burdenof establishing his entitlement to judgment as a matter of law dismissing the cause of actionalleging conversion insofar as asserted against him. Triable issues of fact exist as to whetherSayegh, in his capacities as escrowee and as an attorney representing the defendant Lily Sayah inconnection with the sale of real property, disbursed proceeds from the closing to Sayah despitehis awareness of an agreement between Sayah and the plaintiff, pursuant to which she authorizedSayegh to withhold, from the proceeds of sale, an amount equal to outstanding legal fees that sheowed to the plaintiff, which included a bonus that she allegedly promised to the plaintiff (seeBank of India v Weg & Myers, 257 AD2d 183, 191 [1999]; Bankers Trust Co. v Cerrato,Sweeney, Cohn, Stahl & Vaccaro, 187 AD2d 384, 385 [1992]; see also Takayama vSchaefer, 240 AD2d 21, 25 [1998]).
As to the plaintiff's cause of action to recover on an alleged personal guarantee, pursuant toGeneral Obligations Law § 5-701 (a) (2), "a special promise to answer for the debt, defaultor miscarriage of another person" must be "in writing, and subscribed by the party to be chargedtherewith." Sayegh failed to establish, prima facie, that a letter dated March 28, 2007, that hewrote to the plaintiff did not constitute a personal guarantee to pay the legal fees that Sayahallegedly owed to the plaintiff (see Martin Roofing v Goldstein, 60 NY2d 262, 264[1983], cert denied 466 US 905 [1984]; see also JP Morgan Chase Bank, N.A. v Cellpoint Inc., 54 AD3d366 [2008]).[*2]
The Supreme Court also correctly granted that branch ofthe plaintiff's motion which was for summary judgment dismissing Sayegh's counterclaimsalleging that the mere commencement of this action against him constituted an abuse of process,tortious interference with contract, and frivolous conduct within the meaning of 22 NYCRR130-1.1 (c).
"[T]he mere commencement of a lawsuit cannot serve as the basis for a cause of actionalleging abuse of process" (Greco vChristoffersen, 70 AD3d 769, 770 [2010]; see Curiano v Suozzi, 63 NY2d 113,116 [1984]). Moreover, the plaintiff established, prima facie, that any interference with thecontractual attorney-client relationship between Sayegh and Sayah that may have arisen as aresult of the commencement of this action was not intentional, but merely incidental to thelawful commencement of the action (see Alvord & Swift v Muller Constr. Co., 46 NY2d276, 281 [1978]; Beecher vFeldstein, 8 AD3d 597, 598 [2004]; Conversion Equities v Sherwood House OwnersCorp., 151 AD2d 635, 637 [1989]). In opposition, Sayegh failed to raise a triable issue offact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Further, "NewYork does not recognize a separate cause of action to impose sanctions" pursuant to 22 NYCRR130-1.1 (c) (Greco v Christoffersen, 70 AD3d at 771) and, in any event, there is no meritto the claim that it was frivolous for the plaintiff to commence this action.
Sayegh's contention that the plaintiff engaged in sanctionable conduct during discovery iswithout merit (see CPLR 3126). Covello, J.P., Florio, Eng and Chambers, JJ., concur.