New York City Tr. Auth. v Horner
Annotate this CaseDecided on November 13, 2008
Civil Court of the City of New York, Kings County
New York City Transit Authority, Plaintiff,
against
Evelyn Horner et al., Defendant(s).
CV-600764-07/KI
Margaret A. Chan, J.
Plaintiff is the New York City Transit Authority ("NYCTA"), the public authority that
operates public transportation in New York City. Defendants are the owner and operator of a vehicle
that allegedly struck plaintiff's bus on May 3, 2004. A full trial on this matter was held on June 10, 2008
after which, both parties submitted post trial memoranda. At trial, plaintiff presented three witnesses.
Defendant did not present any witnesses or evidence.
According to the testimonies of Yvonne Campbell, the NYCTA bus operator in the incident, and Donald Healy, the NYCTA supervisor who responded to the scene, the accident occurred on the corner of Frances Louis Boulevard and Horace Harding Extension Road at 10:00 p.m. on a rainy night. Ms. Campbell was driving the bus across the intersection to make a right turn onto the Horace Harding Extension Road. As she was completing her turn, a car collided with the right rear side of her bus. What she observed when she stopped the bus was the car wedged between the right rear side of the bus and the mailbox on the curb. She had seen that same car parked by a hydrant in front of a gas station prior to making her turn, but thought it was parked as it was stationary with its headlights off. Mr. Healy also observed the car's headlights unlit when he responded to the scene. Upon inspecting the bus at the scene of the accident, he took the bus out of service because there was damage to the fuel door, which exposed the fuel filler cap and neck making it unfit for service. Mr. Healy memorialized this in the "Supervisor's Accident/Crime Investigation Report" which was admitted into evidence. Prior to the accident, the bus, as routinely inspected by Ms. Campbell at the beginning of her shift, was fully [*2]operational and fit for service.
Based on the plaintiff's testimonial and documentary evidence, plaintiff proved to this court that the defendants created a dangerous condition and was the proximate cause of the accident by proceeding towards the intersection, without its car headlights on, as plaintiff's bus was making a right turn. Thus, plaintiff prevailed on the liability part of the trial and now we turn to the damages issue.
On the damages portion of the trial, plaintiff called Beverly Jackson, its associate staff analyst at the time of the accident. As part of her job then, she assessed the damages after the accident and submitted them for reimbursement. The damages were calculated by adding the amount of repair work billed by plaintiff's in-house mechanics, as reported in the Estimate of Damages, to the amount estimated for plaintiff's loss of use of the bus. Defendants argued that plaintiff's evidence on damages should not be admitted because (1) this was an estimate and an expert was needed to establish the necessity for the repairs made and the reasonableness of the amount charged for parts and labor; and (2) plaintiff's loss of use is not warranted because the plaintiff failed to present evidence establishing plaintiff's loss of its revenue from that particular bus while it was out of service.
Regarding plaintiff's in-house mechanics' bill, which was termed an "Estimate of Damages", defendants rely on Parilli v. Brooklyn City R.R., 236 AD 577 (App Div, 2d 1932). In Parilli, the Appellate Division, Second Department held "[i]t is not sufficient to make proof of the amount paid without proof that such repairs were necessary, and that the charge therefor was reasonable in amount." (id. at 578; see also New York Polyclinic Medical School and Hospital v Mason-Seaman Transp., 155 NYS 200 [App Term, 1st Dept 1915][testimony by a car repair shop employee testifying to contract price for repair was insufficient to show amount of damages to the car]). However, neither the Parilli case nor any of the cases cited in defendants' post-trial Memorandum of Law requires a damaged party to produce an expert witness to prove necessary and reasonable damages (id.). Plaintiff may prove its damages for the repair of a vehicle through credible testimony of a person with knowledge about the costs involved (Babbitt v Maraia,157 AD2d 691 [App Div, 2d Dept 1990]); the court found Ms. Jackson to be such a person.
In any event, the costs of labor and materials here were that of in-house mechanics working for the NYCTA, a public authority bound by the provisions of the Public Authorities Law (see PAL §1200 et seq.). Public Authorities Law sets forth how such an authority may establish wages and determine the costs of goods (see PAL §1204). Plaintiff asked this court to extend that provision to read that all expenditures for repair by the NYCTA are inherently reasonable. The court cannot make that assumption, and estimates are generally "no more than a guess as to the cost of repairs and, as such, damages cannot be awarded on the basis of such conjecture or guesswork." (Murphy v Lichtenberg-Robbins Buick, 102 Misc 2d 358, 359 [App Term, 2d Dept 1978]). However, a court may find that an itemized and detailed estimate has probative weight (see Miller v Sanchez, 6 Misc 3d 479 [Civ Ct, Kings Cty 2004][a single estimate of repair was admissible and sufficient to establish the prima facie reasonable and [*3]necessary cost of repair]). Furthermore, the proof of damages here was actually a paid bill, despite the plaintiff referring to it as an "Estimate of Damages" because it listed the actual wages paid for plaintiff's mechanics and the actual amounts paid for the parts. Together with the credible testimony of Ms. Jackson, the plaintiff, through its mechanic's bill proved the costs associated with returning the bus to service in the amount of $3,882.02.
Turning to the issue of loss of use, defendant argued that loss of use damages are not warranted here because plaintiff failed to prove how much actual revenue the damaged bus lost during its time out of service. Defendant fails to cite any authority for this proposition, however does cite to the Third Department to persuade this court to deny loss of use damages on another basis - that plaintiff did not actually rent a replacement vehicle. In Mountain View Coach v. Hartnett,99 Misc 2d 271 (Greene Cty Ct, 1978), affd without op,69 AD2d 1020 (App Div, 3d Dept 1979), lv denied,47 NY2d 710 (Ct App, 1979) and its progeny, Mountain View Coach v. Gehr,80 AD2d 949 (App Div, 3d Dept 1981) the Third Department held that where plaintiff substitutes a impaired vehicle with one it maintains in reserve, plaintiff is not entitled to loss of use damages. The court in Hartnett stated that where "plaintiff's costs would have been the same whether the accident happened or not" the plaintiff is not deserving of loss of use damages because they would be a reward beyond making plaintiff whole (Hartnett, 99 Misc 2d at 272). In contradiction to that holding, the First Department, as early as 1918, stated "it would be unjust to compel the owner of [a vehicle] to hire another [replacement vehicle] in order to entitle him to claim compensation of the loss of use of his own [vehicle](Naughton Mulgrew Motor Car Co. v Westchester Fish Co., 105 Misc 595 [App Term, 1st Dept 1918]). The court further opined that the damaged party may not be financially able or have the credit to hire a replacement (id. at 599). The Court of Claims in Horton v State, 50 Misc 2d 1017, similarly adopted this reasoning in 1966 when it stated "the rule today is to allow such damages irrespective of whether a replacement vehicle is rented," while drawing a comparison for damages in a wrongful death suit.
This court is bound by the Second Department's decision in Mountain View Coach Lines v Storms,102 AD2d 663 (App Div, 2d Dept 1984), a factually identical case to Hartnett and Gehr, in which the Second Department found the plaintiff bus company was entitled to recover damages for loss of use of a bus where plaintiff utilized a bus it maintained in reserve instead of actually renting one. Simply, the Storms court held that a rental value of a substitute vehicle is a permissible method to determine loss of use damages (id.). The Storms court referenced Justice Cardozo's opinion in Brooklyn Eastern Terminal v United States, 287 US 170 (1932) where Justice Cardozo explained the "spare boat" doctrine in admiralty. The "spare boat" doctrine states that while a shipowner may maintain a spare vessel or rent one in case of damages, either way, the shipowner will have to acquire a spare, and thus, a negligent defendant should be held to the replacement value. Notably, Justice Cardozo chose not to extend the "spare boat" doctrine in Brooklyn Eastern Terminal, and the Brooklyn Eastern Terminal case has been interpreted to limit damages to "additional wear and tear on the over-worked vessels" of an existing fleet (see Storms, 102 AD2d at 666 , n1 quoting Dobbs, Remedies, §5.11, p. 389; AT & T Corp. v Tyco Telecommunications (U.S.) Inc., 255 F Supp2d 294, 301[US Dist Ct, SD NY 2003]; Kuwait [*4]Airways Corp. v Ogden Allied Aviation Services, 726 F Supp 1389, 1392 [US Dist Ct, ED NY 1989]). Requiring plaintiff to establish the wear on tear on potentially numerous different vehicles, over various lengths of time, and involving a variable amount of extra labor could require Sisyphean effort. Justice Cardozo in Brooklyn Eastern Terminal recognized this dilemma and his opinion took pains not to rule out a measure of damages used "in situations not dissimilar" (Brooklyn Eastern Terminal, 287 US 170, 174). Justice Cardozo further observed, "[o]nly when thus enlightened can we choose the yardstick most nicely adjusted to be a measure of reparation, in some instances, no doubt, the hire of another vessel, in other instances, it may be, a return upon the idle capital... in others something else"(id. at 174). The Storms court similarly did not provide instructions on how to extrapolate a replacement value.
Given the decision in Storms, plaintiff is entitled to recover damages from loss of use. The yardstick plaintiff used to arrive at the amount for the use of loss was done by obtaining two private bus companies' rental values. Ms. Jackson reasoned that no other Transit Authority exists within New York City from which to ascertain a rental value, thus, she looked to private bus companies. Using the lower rate of the two private companies, Ms. Jackson determined what the rental value would be for the total hours plaintiff's bus was out of service. Ms. Jackson adequately explained her accounting method for loss of use, and additionally supported the accounting with a memorandum she wrote to State Farm Insurance Co., dated August 9, 2006. Recovery will not be denied merely because the quantum of damages is uncertain or difficult to ascertain (Shoecraft v BBS Automotive Group, Inc., 48 AD3d 786 [App Div, 2d Dept 2008]; citing Berley Indus. v City of New York, 45 NY2d 683, 687 [Ct App 1978]; Campbell v Silver Huntington Enters., 288 AD2d 416, 417 [App Div, 2d Dept 2001]; Clark-Fitzpatrick, Inc. v State of New York, 258 AD2d 431 [App Div, 2d Dept 1999]), and the compensable damages calculated by Ms. Jackson were neither speculative nor uncertain (see Lloyd v Town of Wheatfield, 67 NY2d 809 [Ct App 1986]; Haven Associates v Donro Realty Corp., 121 AD2d 504 [App Div, 2d Dept 1986]). Therefore, plaintiff sufficiently presented that it used a permissible method to determine a value of $3314.28 to represent its loss of use of its bus caused by defendants' negligence.
Accordingly, judgment for plaintiff in the amount of $7196.30 plus interest and costs.
This constitutes the decision and order of the court.
Dated: November 13, 2008______________________
Margaret A. Chan
Judge, Civil Court
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