SWIG EQUITIES LLC v. 10 (2018)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered December 5, 2017, which, inter alia, granted defendant Bernard M. Kruger, MD's motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff alleges that defendant converted certain photographs transferred to him by plaintiff's principal, Kent Swig, in 2011, two years after Swig defaulted on a short-term loan extended by plaintiff and plaintiff obtained a judgment against him.  The factual allegation that defendant had orally promised to safeguard the photographs as a personal favor to Swig is inherently incredible in the face of the undisputed facts, and the motion court was not required to accept it (see Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 815 N.Y.S.2d 547 [1st Dept. 2006];  Herman v. Greenberg, 221 A.D.2d 251, 634 N.Y.S.2d 99 [1st Dept. 1995] ).  The court reasonably accepted defendant's explanation for Swig's transfer of the photographs to him in 2011 that they constituted partial payment toward, or collateral for, the 2009 judgment.  Accordingly, this action is barred by the Release and Indemnity executed by Swig on June 9, 2016, on behalf of plaintiff, in which Swig expressly released defendant from all claims arising out of or relating to any judgment between the parties (see Long v. O'Neill, 126 A.D.3d 404, 406–407, 5 N.Y.S.3d 42 [1st Dept. 2015] ).