Wednesday, June 25, 2014

Dismissal of conversion and contract claims.

Practice point:  The Appellate Division affirmed the dismissal of the cause of action alleging conversion of funds, since the plaintiff asserted a mere right to payment and did not allege that the defendants had unauthorized possession or control of specifically identifiable funds that allegedly had been converted.

Also affirmed was the dismissal of the cause of action alleging breach of contract. The plaintiff failed to plead the material terms of the alleged oral loan agreement by which the defendants agreed to repay or reimburse him for his payment of expenditures for the property and boat at issue.

Student note: The essential elements of a breach of contract cause of action are the existence of a contract; the plaintiff's performance pursuant to the contract; the defendant's breach of the contractual obligations; and damages resulting from the breach. The plaintiff's allegation must identify the provisions of the contract that were breached.

Case: Canzona v. Atanasio, NY Slip Op 04458 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion for sanctions, in the form of dismissal or, in the alternative, disqualification.