Barry K. BROWN, Plaintiff-Appellant, v. Richard KAY, as Preliminary Executor of the Estate of Himan Brown; The Himan Brown Revocable Trust, as Restated, Richard Kay, Trustee; The Himan Brown Charitable Trust, Richard Kay, Trustee, Defendants-Appellees, 514 F. App'x 58

SUMMARY ORDER Plaintiff-Appellant Barry K. Brown appeals from a February 9, 2012, Opinion and Order of the United States District Court for the Southern District of New York (Engelmayer, J.) dismissing Brown’s claims of fraud and conversion or, in the alternative, granting

summary judgment to the defendants on those claims. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. First, Brown appeals on three independent grounds from the district court’s dismissal of his claim for fraud. Because the release that Brown signed in 2010 is a sufficient basis for the dismissal, we do not reach the alternative grounds.

Brown contends that the 2010 release did not waive his fraud claim because it reserved any claim that “originals of any of the items of art on Exhibit D to the Separation Agreement, were, in fact, sold or otherwise disposed of by or on behalf of [Brown’s father] HIMAN BROWN.” App’x at 71. However, Brown alleges in his fraud claim only that his father fraudulently induced his mother to sign a separation agreement by misrepresenting to her the value and provenance of various artworks. Brown does not allege that any sale of the artwork was involved in that fraud.

To the extent that Brown argues that his allegations somehow imply that his father owned authentic copies of the artwork, induced his mother to enter into the separation agreement based on representations that she would receive the authentic artwork, and then delivered false copies of the artwork before or after selling the originals, such allegations would not state a cause of action for fraud. Such allegations “amount to little more than intentionally-false statements by [Brown’s father] indicating his intent to perform under the contract.

That is not sufficient to support a claim of fraud under New York law.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir.1996). Second, Brown appeals on three independent grounds from the district court’s dismissal of his claim for conversion. Because we hold that Brown failed to state a claim for conversion, we do not reach the alternative grounds. Brown alleges that his father sold certain artwork even though he had promised to bequeath that artwork to Brown and to Brown’s sister.

Under New York law, “[c]onversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights.” Emp’rs’ Fire Ins. Co. v. Cotten, 245 N.Y. 102, 105, 156 N.E. 629 (1927). At the time that Brown alleges that his father sold the artwork, it did not “belong[] to another.” Brown consequently fails to allege facts sufficient to sustain a claim for conversion.

As the district court observed, “[w]hatever cause of action [Brown] possibly had or has arising out of the failure of his father to bequeath the Exhibit D artwork to [Brown] and his sister as required by the Separation Agreement, it is not conversion.” Brown v. Kay, 889 F.Supp.2d 468, 487 (S.D.N.Y. 2012). We have considered Brown’s remaining arguments with respect to the bases for dismissal discussed above and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.