| Burane v Poppy's Auto Wreckers |
| 2006 NY Slip Op 52240(U) [13 Misc 3d 139(A)] |
| Decided on November 2, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered November 5, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,925.
Judgment modified by reducing the amount awarded to plaintiff to the principal sum of $1,400.27; as so modified, affirmed without costs.
In this small claims action, plaintiff seeks to recover damages sustained when her car was vandalized while at defendant's auto repair shop. Defendant argues that it was not negligent and that the award of damages was excessive.
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 or returned it in a damaged condition, a prima facie case of negligence against the shop owner is established (see generally I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 [1980]) which shifts the burden to defendant to show that it was not negligent (see Sealey v Meyers Parking Sys., 147 Misc 2d 217 [1990]; Motors Ins. Corp. v America Garages, 98 Misc 2d 887 [1979]). This presumption of negligence is founded in common sense, because the auto repair shop owner is supposed to have knowledge concerning matters solely within its control and under its supervision (see Hobbie v Ryan, 130 Misc 221, 223 [1927]; 2 Warren's, Negligence in [*2]New York Courts § 23.02 [3], at 23-7 [2d ed]). Upon a review of the record, we find that defendant failed to meet its burden (see Chubb & Son v Edelweiss, Inc., 258 AD2d 345 [1999]; Sealey v Meyers Parking Sys., 147 Misc 2d 217 supra; Sherber v Kinney Systems, 42 Misc 2d 530 [1964]) and that plaintiff is entitled to recover for the damage to her vehicle.
In its calculation of damages, which was based on the $3,425 market value of the car, the court reduced the award to plaintiff because it believed that plaintiff had
received the sum of $1,500 from her insurance company. However, the record demonstrates that plaintiff had, in fact, received the sum of $2,024.73. Accordingly, the amount awarded plaintiff is reduced to the sum of $1,400.27 (see CPLR 4545 [c]; Fisher v Qualico Contr. Corp., 98 NY2d 534 [2002]).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 02, 2006