Appeal from a judgment of the District Court of Nassau County, Second District (David Goodsell, J.), entered August 5, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial limited to the issue of damages.

In this small claims action, plaintiff seeks to recover the value of his automobile, which was left at defendant's premises for repairs and which defendant failed to return. Defendant claims that it released the vehicle to a party authorized by plaintiff. After a nonjury trial, the District Court, finding that plaintiff had failed to establish defendant's liability, dismissed the action. Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).

A bailment is created when a motor vehicle is delivered to a repair shop for repairs (Warren v Downes, 17 Misc 3d 136[A], 2007 NY Slip Op 52291[U] [App Term, 2d & 11th Jud Dists 2007]; Burane v Poppy's Auto Wreckers, 13 Misc 3d 139[A], 2006 NY Slip Op 52240[U] [App Term, 9th & 10th Jud Dists 2006]; 62 NY Jur 2d, Garages § 95). When there is a showing that the bailee failed to return the vehicle or returned it in a damaged condition, a presumption of negligence arises, thereby establishing a prima facie case of negligence against the repair shop (see generally I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 [1980]). The burden then shifts to the bailee to show that it was not negligent (see Dixon v X-Treme Body & Fender, Inc., 20 Misc 3d 130[A], 2008 NY Slip Op 51422[U] [App Term, 2d & 11th Jud Dists 2008]; Motors Ins. Corp. v America Garages, 98 Misc 2d 887 [App Term, 1st Dept 1979]; Sealey v Meyers Parking Sys., 147 Misc 2d 217 [1990]). We find that plaintiff herein made out a prima facie case of negligence against defendant. Plaintiff testified that he and his friend had delivered his vehicle to defendant for repairs and that defendant had failed to return the car to him or his friend. Defendant's owner merely speculated that his night employee must have given the car to someone who apparently had authority to retrieve the car.

In light of the prima facie case which plaintiff established against defendant and defendant's failure to show that it was not negligent, the judgment is reversed and the matter is remitted to the District Court for a new trial limited to the issue of damages.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 19, 2010