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FFH Rest. Assoc. LLC v Illy Caffe N. Am., Inc.
2006 NY Slip Op 50544(U) [11 Misc 3d 138(A)]
Decided on April 5, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 5, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, GANGEL-JACOB, JJ
570203/05.

FFH Restaurant Associates LLC, t/a Shallots NY Restaurant and Bar, Plaintiff-Appellant,

against

Illy Caffe North America, Inc., Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court, New York County (Donna Recant, J.), entered on or about September 30, 2004, which granted defendant's cross motion to dismiss the complaint pursuant to CPLR 3211(a) for lack of standing, and denied, as moot, plaintiff's motion to strike defendant's affirmative defenses.


PER CURIAM:

Order (Donna Recant, J.), entered on or about September 30, 2004, modified to deny defendant's cross motion and reinstate the complaint, and as modified, affirmed, with $10 costs.

Plaintiff's action for breach of contract and conversion, based upon the seizure of inventory by defendant, is not susceptible to summary dismissal at this pre-discovery stage of litigation. The thin record so far developed raises issues of fact as to whether plaintiff had title to the goods allegedly converted and whether defendant's seizure of the goods was a breach of the general release given to plaintiff by defendant as part of an agreement settling outstanding claims between the parties.

This constitutes the decision and order of the court.
Decision Date: April 5, 2006