| Goldstein v Guida |
| 2010 NY Slip Op 05513 [74 AD3d 1143] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Shirley Goldstein, Respondent, v Paul Guida et al.,Appellants. |
—[*1] Michael D. Garber, Valley Stream, N.Y., for respondent.
In an action, inter alia, to recover damages for conversion, the defendants appeal from ajudgment of the Supreme Court, Kings County (Kurtz, J.H.O.), dated July 28, 2009, which, upona decision of the same court dated May 1, 2009, made after a nonjury trial, is in favor of theplaintiff and against them in the principal sum of $17,200.
Ordered that the judgment is affirmed, with costs.
In March 2006 the plaintiff commenced this action to recover damages for breach of an oralcontract and conversion. Specifically, she alleges that in 2004, she contacted the defendant PaulGuida, the president and sole shareholder of the defendant Barth Tex Fabrics, Inc. (hereinafterBarth Tex), to reupholster six dining room chairs which were approximately 90 years old andvaluable family heirlooms. According to the plaintiff, Guida arranged for a man named EdwardChifari to pick up the chairs from the plaintiff's home and deliver them to his store. After severalmonths, the plaintiff asked Guida about the chairs and Guida denied ever having received them.After a nonjury trial, the Supreme Court found both defendants liable for conversion andawarded damages to the plaintiff in the principal sum of $17,200. We affirm.
Upon review of a determination rendered after a nonjury trial, this Court's authority "is asbroad as that of the trial court," and this Court may "render the judgment it finds warranted bythe facts, taking into account in a close case 'the fact that the trial judge had the advantage ofseeing the witnesses' " (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr.Corp., 254 NY 128, 133-134 [1930]; see Damianos Realty Group, LLC v Fracchia, 64 AD3d 537, 538[2009]). Moreover, "in a nonjury trial, evaluating the credibility of the respective witnesses anddetermining which of the proffered items of evidence are most credible are matters committed tothe trial court's sound discretion" (Ivani v Ivani, 303 AD2d 639, 640 [2003]). Conversionis defined as "an intentional act of domination or control over a chattel which so seriouslyinterferes with the right of another to control it that the actor may justly be required to pay the. . . full value of the chattel" (Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283, 288 [2007][internal quotation marks and citation omitted] ).[*2]
Based upon our review of the evidence, including thetestimony of the plaintiff, her son, and Chifari, we find that the Supreme Court properlydetermined that the defendants were liable for conversion of the plaintiff's six dining room chairs(see Lerner v Ayervais, 66 AD3d644 [2009]).
Contrary to the defendants' contention, the Supreme Court properly accepted the appraisalvaluation of the six chairs offered by the plaintiff's expert witness, even though the expert wasunable to examine the subject chairs. A value may be placed upon missing property even thoughthe appraiser never saw the property, as long as the valuation has a substantial factual basis (see Generale Bank v Bell Sec., Inc., 21AD3d 844, 845 [2005]). Moreover, evidence of the value of a missing item may be basedupon a comparison to similar existing items (see Friedman v Breslin, 51 App Div 268[1900], affd 169 NY 574 [1901]).
Accordingly, under the circumstances of this case, the Supreme Court properly held Guidaliable for the damages incurred by the plaintiff as a result of the conversion of the chairs (seeIngram v Machel & Jr. Auto Repair, 148 AD2d 324, 325 [1989]). Dillon, J.P., Balkin, Engand Chambers, JJ., concur.