[*2]Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s):

CPLR£2219 (a)

CPLR£§ 3211 (a)

CPLR£§ 3214 (b)

CPLR£§ 3211

CPLR£3016

Papers Numbered

Def's dismiss mot, VSR affirm, GK affid,.. ... ... ... 1

Pltf's x-mot, SMH affirm ... ... ... ........................2

CPLR£2219 (a)

CPLR£§ 3211 (a)

CPLR£§ 3214 (b)

CPLR£§ 3211

CPLR£3016

LYNN R. KOTLER, J.:

Plaintiff is the Austrian Pension Institute. Plaintiff paid a monthly pension benefit to defendant's mother, Frances Komarin. Ms. Komarin passed away on August 26, 2010. In this action, plaintiff seeks to recover from defendant the pension payments it made to Ms. Komarin after her death. Plaintiff has asserted two causes of action, unjust enrichment and conversion.

Defendant now moves to dismiss this action for failure to state a cause of action (CPLR § 3211 [a] [7]). Plaintiff opposes the motion and cross-moves for an order: "pursuant to CPLR

§ 3214 (b) lifting the stay of discovery and granting plaintiff discovery of the defendant and leave to serve a subpoena duces tecum upon Morgan Stanley."

The Court will first consider the motion to dismiss.

In determining whether a complaint is sufficient so as to withstand a motion to dismiss pursuant to CPLR § 3211 "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause [*3]of action cognizable at law" (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). The facts as alleged must be accepted by the court as true, for purposes of such a motion, and are to be accorded every favorable inference (Morone v. Morone, 50 NY2d 481 [1980]; Beattie v. Brown & Wood, 243 AD2d 395 [1st Dept 1997]). Where the motion is premised upon the existence of documentary evidence, such evidence must definitively dispose of plaintiff's claims (Bronxville Knolls Inc. v. Webster Town Center Partnership, 221 AD2d 248 [1st Dept 1995]).

In his own affidavit in support of the motion, defendant characterizes the benefit his mother was receiving as a "pension[] for victims of the Nazi persecution, including people like my mother who had to flee Austria after the Anschluss to save their lives." Plaintiff's attorney, Stephen M. Harnik, Esq., however maintains in his affirmation that the pension "was established in 1955 and is funded with worker contributions and its activities and the Austrian Government's reparation program are not related."

Attorney Harnik details the process by which plaintiff determines whether to continue making payments to benefit recipients. The pension benefits terminate with the death of the recipient. Plaintiff requests its pensioners to furnish a notarized "life certificate" once a year proving that they are alive. The life certificate is mailed out to pensioners in January of each year and is supposed to be returned within 6 weeks. In this case, plaintiff did not receive Ms. Komarin's life certificate in 2011, so in May 2011, plaintiff stopped paying out pension benefits. Plaintiff then requested reimbursement of the overpayment from the defendant because, according to the complaint, "[u]pon information and belief, [Ms. Komarin] having died, defendant received the Overpayment." Defendant ignored and/or denied plaintiff's request, and this case ensued.

Plaintiff also claims, and defendant does not dispute, that the Estate of Frances Komarin has not been probated.

Defendant argues that Austrian law cannot apply to this case because there is "no good reason why Defendant would be subject to any claims under Austrian law." Defendant asserts the following reasons why both causes of action cannot be maintained under New York law. The unjust enrichment claim fails because: [1] plaintiff has neither alleged that defendant obtained a benefit at plaintiff's expense or that equity and good conscience preclude the retention of any such benefit, nor alleged facts to support either element; and [2] the complaint does not allege any relationship or dealings between the parties.

Defendant maintains that the conversion claim fails because: [1] the complaint does not allege defendant's wrongdoing that cause plaintiff's injury; [2] plaintiff did not have ownership or possession of the funds at the time they were allegedly converted; [3] the complaint's allegations that defendant exercised unauthorized dominion or control over the funds are conclusory and fail for lack of particularity; [4] the allegedly converted funds were not identifiable or segregated; and [5] defendant did not have any relationship with plaintiff.

The parties' many arguments can all be resolved neatly when comparing the allegations to the elements of each cause of action asserted.

Unjust enrichment [*4]

Unjust enrichment is a quasi-contract theory of recovery, and "is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (Georgia Malone & Co., Inc. v. Ralph Rieder, 86 AD3d 406 [1st Dept 2011] quoting IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009] ). The plaintiff must show that the defendant was enriched, at plaintiff's expense, and that "it is against equity and good conscience to permit [the defendant] to retain what is sought to be recovered" (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 [2011] quoting Citibank, N.A. v. Walker, 12 AD3d 480, 481 [2d Dept 2004]). Further, some connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part must be alleged (Mandarin Trading, supra at 182 ["a claim will not be supported if the connection between the parties is too attenuated"]).

Here, plaintiff's sole allegation contained in the complaint is that "[u]pon information and belief, defendant has personally benefitted from the Overpayment." There are no facts from which the Court can conclude that there was any relationship between plaintiff and defendant that could have caused reliance or inducement. Without further allegations, the claim that the defendant personally benefitted from the Overpayment does not render this transaction "one of equitable injustice" (Mandarin Trading, supra). Accordingly, the first cause of action is severed and dismissed.

Conversion

Conversion is the wrongful interference with the property of another (Republic of Haiti v. Duvalier, 211 AD2d 379 [1st Dept 1995]). In order to assert a cause of action for conversion, a plaintiff must demonstrate an ownership interest in the property alleged to have been converted (State v. Seventh Regiment Fund, Inc., 98 NY2d 249 [2002]).

Plaintiff has validly asserted a cause of action for conversion against the defendant. While it is true that conversion traditionally required a "wrongful taking", conversion now includes a wrongful detention after a valid demand even if the original possession was lawful (see Salatino v. Salatino, 64 AD3d 923 [3d Dept 2009] leave to appeal denied 13 NY3d 710 [2009]). Plaintiff has also alleged its right to ownership and possession based on its claim that Austrian law governed the pension, and that under Austrian law, pension benefits ended one month prior to the death of the recipient. Therefore, any pension payments made thereafter were overpayments and plaintiff is entitled to a return of the monies.

Otherwise, defendant's arguments that the allegations are conclusory or that the converted funds were not identifiable or segregated are rejected. Plaintiff has met its burden on this motion with respect to the second cause of action. Nor are there any additional pleading requirements with respect to a cause of action for conversion (compare CPLR 3016).

Accordingly, the motion to dismiss the second cause of action is denied.

As for plaintiff's cross-motion for discovery and leave to serve a subpoena duces tecum on Morgan Stanley in the form annexed to plaintiff's motion papers as Exhibit "C" is granted.

Conclusion [*5]

In accordance herewith, it is hereby:

ORDERED that the defendant's motion to dismiss is granted only to the extent that the first cause of action is hereby severed and dismissed; and it is further

ORDERED that the motion is otherwise denied; and it is further

ORDERED that the cross motion is granted and plaintiff may serve the subpoena duces tecum in the form annexed to its motion papers as Exhibit "C".

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court.

Dated: July 24, 2013So Ordered:

New York, New York

_____________________

Hon. Lynn R. Kotler, J.C.C.