| Matter of Channel Mar. Sales, Inc. v City of New York |
| 2010 NY Slip Op 06168 [75 AD3d 600] |
| July 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Channel Marine Sales, Inc., et al.,Respondents, v City of New York et al., Appellants. |
—[*1] Fugazy & Rooney, LLP, New York, N.Y. (Paul P. Rooney of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the City of New York, New York City Department of Citywide AdministrativeServices, and Barry Gendelman, Assistant Commissioner, Bureau of Property Management,Department of Citywide Administrative Services appeal, as limited by their brief, from so muchof an order of the Supreme Court, Queens County (Flug, J.), dated April 21, 2009, as granted thatbranch of the petition which was for leave to serve a late notice of claim for the petitioners'claims sounding in conversion and replevin.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, and that branch of the petition which was for leave to serve a late notice ofclaim for the petitioners' claims sounding in conversion and replevin is denied.
"Ordinarily, the courts will not delve into the merits of an action on an application for leaveto serve and file a late notice of claim" (Matter of Brown v New York City Hous. Auth., 39 AD3d 744, 745[2007]; see Matter of Katz v Town of Bedford, 192 AD2d 707 [1993]). However, it is animprovident exercise of discretion to grant an application where, as here, the underlying action ispatently meritless (see Matter ofCatherine G. v County of Essex, 3 NY3d 175 [2004]; Matter of Brown v New York City Hous.Auth., 39 AD3d 744 [2007]).
"In order to establish a cause of action to recover damages for conversion, 'the plaintiff mustshow legal ownership or an immediate superior right of possession to a specific identifiable thingand must show that the defendant exercised an unauthorized dominion over the thing in question. . . to the exclusion of the plaintiff's rights' " (Messiah's Covenant CommunityChurch v Weinbaum, 74 AD3d 916, 919 [2010], quoting Independence Discount Corp. vBressner, 47 AD2d 756, 757 [1975]). Furthermore, "[w]here one is rightfully in possessionof property, one's continued custody of the property and refusal to deliver it on demand of theowner until the owner proves his [or her] right to it does not constitute a conversion" (Trans-World Trading, Ltd. v North ShoreUniv. Hosp. at Plainview, 64 AD3d 698, 700-701 [2009] [internal quotation marks andcitation omitted]). Here, the petitioners failed to demonstrate any [*2]indicia of ownership to certain property left on the premises fromwhich they were evicted, despite numerous requests to demonstrate such ownership before thevast majority of that property was removed by the appellants.
Additionally, the appellants were prejudiced by the petitioners' delay in bringing theproceeding, since the appellants had already begun and had nearly completed removing theproperty in question from the premises.
The parties' remaining contentions either need not be reached in light of this determinationor are without merit. Rivera, J.P., Florio, Miller and Austin, JJ., concur.