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

Craig A. MILLER, Respondent-Appellant, et al., Respondents, v. J.A. KEEFFE, P.C., etc., et al., Appellants-Respondents.

Decided: October 30, 2000

THOMAS R. SULLIVAN, J.P., SONDRA MILLER, HOWARD MILLER and NANCY E. SMITH, JJ. Calano & Calano, Eastchester, N.Y. (Michael A. Calano of counsel), for appellants-respondents.

In a consolidated action, inter alia, to recover damages for conversion, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (DiBlasi, J.), entered December 8, 1999, as, after a nonjury trial, is in favor of the plaintiffs and against them in the principal sum of $125,975.22, and dismissed their counterclaim alleging abuse of process, and the plaintiff Craig A. Miller cross-appeals from the same judgment on the ground of inadequacy.

ORDERED that the cross appeal is dismissed, without costs or disbursements, for the failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e] );  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

 An escrow agent's authority is derived solely from the escrow agreement, and a delivery of the property that is inconsistent with the terms of the agreement may constitute conversion (see, Entertainment & Amusements of Ohio v. Barnes, 49 Misc.2d 316, 267 N.Y.S.2d 359).   Here, the defendants, an attorney and his law firm, were acting solely as escrow agents and the terms of the escrow agreement did not provide for the payment of an attorney's fee from the escrow fund.   Accordingly, their use of the fund for that purpose constituted conversion.

 Since this dispute began, the defendants asserted, as their sole defense to the conversion cause of action, that the plaintiffs authorized the withdrawal of the attorney's fee from the escrow fund. The defendants attempted to amend their pleadings eleven years after the action was commenced to assert new defenses and counterclaims.   In light of the unreasonable and prejudicial delay, the Supreme Court providently exercised its discretion in denying the defendants' belated attempt to amend their pleadings (see, Assante v. City of New York, 173 A.D.2d 430, 570 N.Y.S.2d 55;  Griffiths v. Lindemann, 152 A.D.2d 655, 544 N.Y.S.2d 153).


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