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DeVito v. Neiman

Conversion Claim Survives Against Marshal for Funds' Garnishment, Transfer to Third Party

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OPINION & ORDER Plaintiff, Robert DeVito, first filed this action on September 6, 2019, and he has since twice amended his complaint. Compl., ECF No. 1; Am. Compl., ECF No. 16; Second Am. Compl., ECF No. 68. The operative, second amended complaint asserts multiple claims against various defendants under the Fair Debt Collection Practices Act and New York state law. Second Am. Compl.

133-70. Defendant Stephen W. Biegel now moves to dismiss the sole claim against him — a common-law conversion claim (Count IV) — for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the instant motion. For the reasons set forth below, Biegel’s motion is denied. BACKGROUND1 In the late 1990s, plaintiff suffered “some financial setbacks,” and “he may have run up a debt on a Chase Manhattan Bank USA, NA [("Chase")] credit card.” Second Am. Compl. 68. In 2000, Chase filed a collection action, and in 2001, Chase obtained a default judgment against plaintiff in New York City civil court in the amount of $5,421.15. Id.

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