Calendar Date: June 8, 2018Before: McCarthy, J.P., Egan Jr., Lynch, Clark andPritzker, JJ.__________The Law Office of Nancy M. Eraca, Elmira (Nancy M. Eraca ofcounsel), for appellant.Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Sujata SidhuGibson of counsel), for respondent.__________Egan Jr., J.Appeal from a judgment of the Supreme Court (Rich Jr., J.),entered March 29, 2017 in Schuyler County, upon a decision of thecourt in favor of plaintiff.Plaintiff (hereinafter the wife) and defendant (hereinafterthe husband) were married in June 2006. In September 2014, theparties entered into a separation agreement, which was thereafterincorporated but not merged into a judgment of divorce. In July2015, the wife commenced this action seeking to enforce certainprovisions of the separation agreement. Specifically, the wifealleged two causes of action for breach of contract and soughtspecific performance of the separation agreement based upon thehusband’s failure to pay off the balance of the mortgage on themarital home, failure to produce an original mortgage dischargeand forward any resulting escrow refund, and failure to forward a$400 reimbursement check that he received based upon certaindental costs that she had incurred. The wife also alleged twocauses of action for conversion based upon the husband’s failureto forward the $400 reimbursement check and a $5,217.18automobile insurance check that was issued to him, as the namedinsured on the policy, after her truck was damaged in a motorvehicle accident.Following joinder of issue, the husband moved for summaryjudgment, among other things, dismissing the complaint. The wifeopposed the husband’s motion and thereafter cross-moved forsummary judgment. Supreme Court (Faughnan, J.) partially grantedthe husband’s motion by dismissing the wife’s second cause ofaction for breach of contract based on his failure to forward the$400 reimbursement check and her third cause of action allegingconversion based upon same, but found that a triable issue offact existed that precluded summary judgment in favor of eitherparty on the two remaining causes of action. The husbandthereafter amended his answer to include a counterclaim seekingspecific performance of the personal property provisions setforth in the agreement. Following a nonjury trial, Supreme Court(Rich Jr., J.) determined, among other things, that the husbandhad materially breached the parties’ separation agreement byfailing to provide the wife with an original mortgage discharge,failing to sign the necessary papers to accomplish the transferof the marital residence and unjustly withholding the $5,217.18automobile insurance check. Supreme Court also determined thatthe wife was entitled to specific performance of the separationagreement and awarded counsel fees in her favor. The husband nowappeals.Initially, the husband contends that Supreme Court(Faughnan, J.) erred in not granting summary judgment dismissingthe wife’s fourth cause of action alleging that he converted a$5,217.18 automobile insurance check that was issued to him bythe insurance company to pay for the damage incurred to thewife’s truck following a motor vehicle accident. We disagree. Aconversion occurs “when someone, intentionally and withoutauthority, assumes or exercises control over personal propertybelonging to someone else, interfering with that person’s rightof possession” (Colavito v New York Organ Donor Network, Inc., 8NY3d 43, 49-50 [2006]; accord Cassadei v County of Schenectady,50 AD3d 1439, 1442 n 2 [2008]). “Two key elements of conversionare (1) [the] plaintiff’s possessory right or interest in theproperty and (2) [the] defendant’s dominion over the property orinterference with it, in derogation of [the] plaintiff’s right”(Colavito v New York Organ Donor Network, Inc., 8 NY3d at 50[internal citation omitted]). Notably, “where possession ofproperty is initially lawful, conversion occurs when there is arefusal to return the property upon demand” (Salatino v Salatino,64 AD3d 923, 925 [2009], lv denied 13 NY3d 710 [2009]).There is no dispute that the wife was the titled andregistered owner of the truck at the time of the subjectaccident. There is also no dispute that, despite the parties’divorce, the wife’s truck remained insured under the husband’sautomobile insurance policy at the time of the accident, and the$5,217.18 automobile insurance check subsequently issued to thehusband — which he acknowledges receiving — was intended aspayment for the damages sustained as a result thereof. While thehusband met his initial burden establishing his entitlement tosummary judgment by submitting, among other things, his ownaffidavit and a copy of the automobile insurance policydemonstrating that he was entitled to receive the check as thenamed insured on the automobile insurance policy (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), we find thatthe wife submitted evidence in opposition to the husband’s motioncreating a triable issue of fact as to whether his failure tosubsequently turn over the proceeds of the automobile insurancecheck constituted a conversion of the $5,217.18 check (seegenerally De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).In opposition to the husband’s motion and in support of hercross motion for summary judgment, the wife submitted, amongother things, a transcript of her deposition testimony, a copy ofthe parties’ separation agreement and two letters dated January7, 2015 and February 26, 2015 between counsel for the respectiveparties. The wife testified that, following the parties’September 2014 divorce, she attempted to remove herself from the-4-526016husband’s automobile insurance policy, but was unable to do sobecause it was a “military policy” and the husband needed toprovide certain information to the insurance company before shecould effectively be removed therefrom. The husband, however,was not cooperative in this regard. The parties’ separationagreement, meanwhile, provides, that “[e]ach party shall at anytime, and from time to time, take any and all steps, and execute,acknowledge and deliver to the other party, any and allinstruments and assurances that the other party may reasonablyrequire or find convenient, expedient or business-like for thepurpose of giving full force and effect to the terms of this[a]greement.”Certainly, as the sole owner of the damaged truck and alisted operator on the subject insurance policy, the wife had aninterest in the proceeds of the insurance check.1Although the husband failed to remove the wife from his insurance policy,acknowledged that the insurance check that he received wasintended to pay for damages sustained to the wife’s truck andthat he had no ownership interest in the wife’s truck pursuant tothe express terms of the separation agreement, a January 2015letter from the husband’s counsel demonstrates that the husbandwas nevertheless intentionally withholding the check from thewife in an effort to get her to acquiesce to his demand forcertain items of personal property that were allegedly stilllocated at the former marital residence. Moreover, despitenumerous demands by the wife seeking to have the husband turnover the insurance check — as outlined in her counsel’s February2015 letter submitted in support of her cross motion — herdemands were apparently ignored and delivery of the check was notforthcoming. Based on the foregoing, we find no error in SupremeCourt’s determination that a triable issue of fact existed withregard to whether the husband’s conduct constituted a conversionof the automobile insurance check, precluding an award of summary judgment in his favor. 2We likewise find without merit the husband’s contentionthat Supreme Court (Rich Jr., J.) erred in granting the wife’sfirst cause of action seeking specific performance of theseparation agreement following trial. Contrary to the husband’sassertion, there was no evidence in the record establishing thatthe wife anticipatorily repudiated the separation agreementthereby justifying his failure to perform his correspondingduties pursuant thereto. Even assuming, as the husband asserts,that the wife had an obligation to provide him with certainpersonal property consisting of a Rugar pistol and certainpictures contained on an iCloud/iTunes account and failed to turnover same, such conduct did not evince any intent on the part ofthe wife to repudiate or abandon the separation agreement (seePugsley v Pugsley, 288 AD2d 284, 285 [2001]; Zambito v Zambito,171 AD2d 918, 920-921 [1991], appeal dismissed 78 NY2d 1125[1991]). In any event, Supreme Court properly found that thehusband was not entitled to receive any additional items oftangible personal property pursuant to the plain language of theparties’ separation agreement. The separation agreement, enteredinto on September 9, 2014, provides, in relevant part, that,“[a]ll items of tangible personal property, including householdgoods and furnishing, personal clothing and effects, andvehicles, have been divided between the parties to their ownmutual satisfaction.” Contrary to the husband’s assertion, thefact that he continued to reside at the marital residence fornine additional days after the separation agreement was signeddid not entitle him to any additional items of personal property,because the parties had already agreed that such items ofpersonal property were previously divided and the record isdevoid of any indication that the husband reserved his right toseek additional personalty based on events postdating theexecution of the separation agreement. Accordingly, we likewisediscern no error in Supreme Court’s denial of the husband’scounterclaim seeking specific performance of the separationagreement.Lastly, we find the husband’s contention that Supreme Courtimproperly awarded the wife counsel fees to be unavailing. Theparties’ separation agreement specifically provided that “[i]feither party is found in breach of [the] agreement, the breachingparty shall be responsible for all counsel fees and costsincurred in instituting and prosecuting such action to enforcethe terms, conditions, or obligations of [the] agreement.”Contrary to the husband’s assertion, although Supreme Court didfind that the husband’s arguments and conduct were abusive, inbad faith and frivolous, it did not expressly indicate that itsaward of counsel fees was based upon this determination.Instead, given the evidence clearly establishing that the husbandbreached the parties’ separation agreement, we find that, underthe circumstances, the award of counsel fees was appropriate andin accordance with the clear terms of the separation agreement(see Habib v Habib, 77 AD3d 1103, 1105 [2010]; Haydock v Haydock,254 AD2d 577, 578 [1998]; see also Domestic Relations Law § 238).McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
