This was originally published on the SGR Blog.
Court Addresses Conversion Claim Against the County
The Nassau County Police seized a virtual armory from a private home. The owner of the guns sued the County for conversion. Would his claim survive a motion to dismiss?
On March 20, 2007, one day after an incident at the office of United States Representative Carolyn McCarthy, the police removed from the home of Gabriel Razzano 15 registered handguns and nine “longarms.” The police issued receipts which contained language tracking that of Penal Law § 400.05 with respect to the disposition of surrendered firearms. Specifically, the receipts stated:
Guns must be redeemed by owner, or legal disposition must be made within one year from the date of this receipt, or same will be destroyed in accordance with law.
In April 2007, Razzano’s pistol license was revoked. He requested a hearing challenging the revocation of the license, but subsequently requested an adjournment in light of his having initiated an action in the United States District Court for the Eastern District of New York regarding the longarms. In May 2011, after that action was resolved, Razzano retrieved his longarms from Nassau County.
Three years later, in June 2014, Razzano contacted Nassau County to retrieve his 15 pistols through a licensed federal firearms dealer, but he was informed that the firearms had been destroyed. He then commenced an action alleging that the County and others “intentional[ly] interfered with [his] ownership rights in the pistols by wrongfully and improperly destroying them.” After a nonjury trial, the District Court awarded Razzano judgment in the principal sum of $11,500. The County appealed.
An actionable conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession. Two key elements of conversion are the plaintiff’s possessory right or interest in the property and the defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights.
With respect to the first element, Razzano’s possessory right or interest in the pistols, which came into the County’s’ possession pursuant to Penal Law § 400.05(6), was extinguished by his failure to reclaim them within one year as required by that statute. He was not arrested or charged with any crime and “surrendered” the firearms pursuant to Penal Law § 400.05(6) by complying with the police officers’ directions to relinquish them on March 20, 2007, when he “immediately” met the officers who had come to his house “to pick up [his] pistols.” Razzano admittedly did not try to reclaim his pistols from the County until June 2014, over seven years after he surrendered the firearms, when he authorized a licensed federal firearms dealer to retrieve them.
With respect to the second element, the County’s exercise of control over the firearms was authorized by Penal Law § 400.05(6), which directs that surrendered firearms be declared a nuisance and destroyed after one year if the person fails to arrange for the sale or transfer of the firearms to a licensed firearms dealer or for the transfer of the firearms to himself, if he is licensed. Razzano did not formally challenge the validity of the County’s’ exercise of control over the firearms prior to their destruction, which was authorized to be done as early as March 2008. Razzano’s possessory right or interest in the pistols was extinguished by his failure to reclaim them within one year and the County’s control and destruction of the firearms was authorized by statute, so such actions did not constitute conversion.
On appeal, the judgment was reversed and the complaint dismissed.