Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 15, 2007. The judgment, after a nonjury trial, awarded plaintiff the sum of $1,458.35.

Judgment affirmed without costs.

In this small claims action, plaintiff seeks to recover for damage to her truck. It is undisputed that plaintiff dropped off her truck, after business hours, at defendant's dealership for an inspection. She claims that when she picked up the truck the following morning, she discovered that the tailgate was missing. It was also undisputed that plaintiff surrendered the keys by depositing them in a night drop envelope, which she signed and then placed into defendant's night drop box. The court below found that, based upon the evidence, plaintiff proved that defendant was a bailee and liable for the damage to her vehicle. The court awarded judgment to plaintiff, and defendant appeals on the sole ground that plaintiff had signed a waiver of liability on the night drop envelope.

By surrendering the keys to her vehicle, plaintiff surrendered possession and control of her vehicle (see generally Chubb & Son, Inc. v Edelweiss, Inc., 258 AD2d 345 [1999]), and a bailment relationship was created. Based upon the record before us, a prima facie case of negligence was established against defendant bailee (see generally I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 [1980]). The burden thus shifted to defendant to prove that it was not negligent (see Sealey v Meyers Parking Sys., 147 Misc 2d 217 [1990]). [*2]

The testimony of defendant's representative was insufficient to demonstrate that defendant used reasonable care. Accordingly, defendant failed to meet its burden of rebutting the presumption of its negligence as bailee. Moreover, contrary to defendant's assertion, since its negligence was established, it may not exempt itself from liability for damage to plaintiff's vehicle (see General Obligations Law § 5-325 [1]).

A review of the record indicates that the determination of the court below was reached under a fair interpretation of the evidence and based upon the credibility of the witnesses at trial (see Williams v Roper, 269 AD2d 125 [2000]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Under the circumstances, by awarding judgment to plaintiff, the court below did substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807). Accordingly, we affirm the judgment.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: May 28, 2008