Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered April 27, 2007. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and matter remanded to the court below for a new trial.

Plaintiff commenced this small claims action seeking to recover damages as a result of defendant's delay in returning her vehicle, which she left with defendant for repairs. Plaintiff testified that her claim was for the cost of renting a car from December 15, 2006, the date she gave defendant $800 to begin body repairs, until defendant returned her vehicle. Defendant's employee told plaintiff that her car would be repaired
in three weeks. However, it appears that, in the interim, the car was vandalized. Accordingly, the car was not returned to plaintiff in three weeks' time as agreed upon, i.e., on January 5, 2007, but, rather, on February 27, 2007, as defendant's employee alleges it needed such additional 7 1/2 weeks to repair the damage caused by the vandalism. Upon a review of the record, we find that the evidence does not support the trial court's dismissal of the action.

A bailment is created when a motor vehicle is delivered by its owner to a repair shop for repairs (62 NY Jur 2d, Garages § 95). When there is a showing that the bailee failed to return the car at the time agreed upon, or returned it in a damaged condition, a presumption of negligence is established against the shop owner (see generally I.C.C. Metals, Inc. v Municipal Warehouse Co., 50 NY2d 657 [1980]; 2 Warren's Negligence in New York Courts § 23.03 [3], at 23-11 [2d ed]), which shifts the burden of proof to the defendant-bailee to show that it was not negligent (see Sealey v Meyers Parking Sys., 147 Misc 2d 217 [1990]; Motors Ins. Corp. v American Garages, 98 Misc 2d 887 [1979]). Upon a review of the record in the instant matter, [*2]we find that the trial failed to address the issue of whether defendant, as bailee, overcame the prima facie presumption of negligence against it and, thus, was not liable for the cost of plaintiff's car rental due to the approximately 7 1/2 week delay by defendant in returning plaintiff's car. Since
substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1807), the judgment is reversed and the matter is remanded for a new trial.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: July 1, 2008