Opinion
October 2, 1967
Order of the Supreme Court, Nassau County, dated January 6, 1967, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, affirmed, with $20 costs and disbursements. The action is to establish title to an automobile and to direct its return by defendant to plaintiff or, in the alternative, for money damages for its conversion. The motion papers show, without dispute, that the car was stolen from defendant's assured; that defendant paid the loss and obtained a bill of sale to the car; and that plaintiff thereafter purchased the car, which had been seriously damaged, from one who derived her claim of title from the thief. After plaintiff had allegedly made extensive repairs to the automobile, it was taken by the police and turned over to defendant. It is our opinion that plaintiff, deriving its title from a thief, may not assert against the true owner or one standing in privity with the owner any claim for the automobile or the cost of repairs or improvements thereto made without the consent of the owner or its successor in title ( Winney v. Leuci, 189 Misc. 441; cf. Parish Bingham Corp. v. Larrabee-Deyo Motor Truck Co., 215 App. Div. 845, affd. 244 N.Y. 521). Summary judgment dismissing the complaint was, therefore, properly granted defendant. Beldock, P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.