Hutton v Esplanade Gardens, Inc.

[*1] Hutton v Esplanade Gardens, Inc. 2009 NY Slip Op 52145(U) [25 Misc 3d 132(A)] Decided on October 22, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570436/09.

Kebra Hutton, Plaintiff-Respondent,

against

Esplanade Gardens, Inc. and Prestige Management, Inc., Defendants-Appellants, -and- Crown Towing Services, Inc., Defendant.

Defendants Esplanade Gardens, Inc. and Prestige Management, Inc. appeal from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered on or about June 10, 2008, after trial, in favor of plaintiff and awarding her damages in the principal sum of $2,500.

Per Curiam.

Judgment (Barbara Jaffe, J.), entered on or about June 10, 2008, reversed, without costs, and judgment directed in favor of defendants dismissing the action against them.

Plaintiff commenced this small claims action to recover for property damage allegedly sustained to her car while it was parked in an outdoor parking lot owned by defendant Esplanade Gardens and operated by defendant Prestige Management (collectively "defendants"). The trial evidence shows, and it is not seriously disputed, that the parties' relationship was governed by a written "parking licence agreement," which provided that the plaintiff-licensee parked at her "own risk," and that plaintiff entered the parking lot through the use of a pre-issued "access key" and parked and locked her car without assistance while retaining her keys. No bailment was created by the "impersonal parking" arrangement depicted in the record (Ellish v Airport Parking Co. of Am., 42 AD2d 174, 178 [1973], affd 34 NY2d 882 [1974]) and, absent competent proof of negligence, defendants are not liable for the damage to plaintiff's car (id.; see Rembert v Co-op. City Parking Garage, 86 Misc 2d 399 [1975]). In view of plaintiff's ready acknowledgment at trial that she was unable to identify the cause of the property damage, any finding of actionable negligence on defendants' part would be based on pure speculation. Dismissal of the action thus achieves substantial justice consistent with substantive law principles (CCA 1807).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2009