ZELL ETTINGER v. BERGLAS

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Supreme Court, Appellate Division, Second Department, New York.

ZELL & ETTINGER, etc., et al., respondents, v. Menashe BERGLAS, appellant, et al., defendants.

Decided: May 24, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ. Meissner, Kleinberg & Finkel, L.L.P., New York, N.Y. (George S. Meissner and Richard Finkel of counsel), for appellant. Storch Amini & Munves, P.C., New York, N.Y. (Steven G. Storch of counsel), for respondents.

In an action to recover damages for conversion and unjust enrichment, the defendant Menashe Berglas appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated April 24, 1998, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

The plaintiffs commenced the instant action against the defendant Menashe Berglas to recover damages for the misappropriation of funds by his wife, the defendant Gittel Berglas.   Menashe sought summary judgment on the ground that he neither knew of nor benefited from his wife's misappropriation of her employer's funds.   The plaintiffs opposed the motion, inter alia, on the ground that the defendants Gittel and Menashe shared the joint bank account in which the misappropriated funds were deposited.

The Supreme Court erred in denying Menashe's motion for summary judgment.   Menashe established that he did not exercise dominion or control over the misappropriated funds, and there was no showing that he obtained any benefit that in equity and good conscience he should not have obtained (see, Bugarsky v. Marcantonio, 254 A.D.2d 384, 678 N.Y.S.2d 737;  Aetna Cas. & Sur. Co. v. Glass, 75 A.D.2d 786, 428 N.Y.S.2d 246;  Mente v. Wenzel, 178 A.D.2d 705, 577 N.Y.S.2d 167).   The plaintiffs did not show that any of the stolen funds were traceable to the defendant Menashe and the plaintiffs' unsubstantiated allegations that Menashe benefited from and had knowledge of his wife's theft, made in the affirmation of their attorney, who had no personal knowledge of the facts, was insufficient to defeat Menashe's motion (see, Tyschak v. Incorporated Vil. of Westbury, 193 A.D.2d 670, 597 N.Y.S.2d 474;  Dabbs v. City of Peekskill, 178 A.D.2d 577, 577 N.Y.S.2d 658;  West v. Village of Mamaroneck, 172 A.D.2d 827, 570 N.Y.S.2d 985).

MEMORANDUM BY THE COURT.

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