Vigilant Ins. Co. v Hayes Stor. Warehouse, Inc.
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Vigilant Ins. Co. v Hayes Stor. Warehouse, Inc. 2012 NY Slip Op 31567(U) June 8, 2012 Supreme Court, New York County Docket Number: 103416/10 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 611412012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART / Justlcs Index Number : 1034-18/2010 VlGllANT INSURANCE vs. HAYES STORAGE WAREHOUSE SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION 8EQ. NO. SUMMARY JUDGMENT The following papetn, numbered 1 to Notlcs of MotlonlOrder to Show Cause Anrwerlng Affldavltm ,wme read on thle motion toRor - Affldavlta - Exhiblts IN O W IN O W . IN O W - ExhlblG Replylng Affldavh Upon the foregoing papers, It is ordered that thls motion Is JUN 1 4 2012 Dated: 0DENIED ........................... MOTION IS: @RANTED 3. CHECK IF APPROPRIATE: ................................................ 0SElTLE ORDER 2. CHECK AS APPROPRIATE: DO NOT POST GRANTED IN PART " OTHER r]SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Plaintiff, Index No.: 103416/10 -againstHAYES STORAGE WAREHOUSE, I N C . , ..................... Defendant. d - _ _ c _ _ l _ _ d _ _ _ _ _ _ l _ X LOUIS B. YORK, J.: dismissing the complaint. BACKGROUND This action arises o u t of t h e payment by plaintiff Vigilant I n s u r a n c e Company (Vigilant) for the diBappearance of a work of art scheduled on an a l l risk insurance policy issued to JVigilant B subrogee,MichellBittan ) - Bittan a l l e g e d that he kept t h e work of art in a room r e n t e d by h i m i n defendant s warehouse over a t e n - y e a r period. The lease for the s t o r a g e room p r o v i d e s , in pertinent part: It is expressly underetood t h a t the relationship between t h e parties i s that of Tenant and Landlord and t h a t there Although the caption indicates the subrogee s name as Michael, at this deposition he stated that his name is Michel. [* 3] is no relationship of bailment between Tenant and Landlord, and as such Landlord has no responsibility o liability f with respect to any contents situated in the demised premises. Further, the lease provides that defendant "shall not be liable for any damage to property of Tenant ... nor for loss or damage to any property of the Tenant by theft o r otherwise" unless caused by defendant's negligence. I d . The complaint alleges three causes of action: (I) bailment; (2) negligence in storage, handling, custody and control; and ( 3 ) conversion. consists of The art work in question, entitled llTriod,ll aluminum tiles packed in a small cardboard carton approximately 18 inches square, and the carton was possibly unmarked. was stored This box in a room approximately 16 by 10 feet, with as many as 100 other artworks belonging to Bittan. Bittan testified that at hia EBT that he did not keep an inventory of the items that he placed in the room, and t h a t he did not request defendant to handle Triod in any way during.the period that it was allegedly in the rented room. EBT at 16, 3 8 . Bittan also testified that, during the entire p e r i o d in which he leased space from defendant, the o n l y people with access to the leased room were himself, his controller, and defendants' employees, because the key= to t h e -2- [* 4] room were kept by defendant in its o f f i c e . Id. at 1 8 . In February of 2 0 0 8 , approximately 10 years after Bittan rented the space from defendant, Bittan and his brother, along with a couple of their workers, removed all of the items kept by h i m in the two rooms that he rented from defendant, placed them in a large rented truck, and took them to Bittan's home in New Jersey. According to Bittan, he did not have a list of the works that were supposed to be stored in the room, nor did he count the pieces when they were put in or removed f r o m the truck. Bittan stated that defendant's employees moved his boxes from the leased room to the elevator, from which he, his b r o t h e r and his workers moved the items to the truck. Two weeks after Bittan removed the items to his New Jersey home, he matched the items with those appearing on his insurance policy issued by Vigilant and could not find Triod, which he then reported missing to Vigilant. When questioned at his deposition, Bittan said at pp 33-34 that he did not r e c a l l the l a s t time that he had seen Triod in the storage'room,although he did recall seeing it there, and admitted that it was possible that he might have removed it from the warehouse. Further, Bittan did not claim that the work w a s stolen from the warehouse, but said that the warehouse was the last place that he recalled -3- [* 5] seeing it, and that he does not know what happened to the work. EBT at 41. Pursuant to the terms of its policy, which specifically scheduled Triod, Vigilant paid Bittan $130,000. According to Ronzel Simmons, the witness who was deposed on behalf of Vigilant, Vigilant concluded that the loss resulted from a "mysterious disappearance." Simmons EBT, at 31. Defendant states that Bittan did not deliver any goods to it for storage, that he did not receive any warehouse receipts or inventories for items stored in his rented rooms, and that the lease provides for rental payments and has no charges for storage of goods. Therefore, according to defendant, there are no facts upon which a bailment may be found. In addition, defendant claim that it did not convert Triod, nor can a conversion be based on a bailment since no bailment existed. In opposition to the instant motion, Vigilant a r g u e s that, despite its status as a landlord, defendant had access to Bittan' 9 leased room and controlled ingress and egress to the room. Hence, Vigilant maintains that Triod was removed, either negligently or deliberately, by or with the concurrence of defendant and/or its employees. Robert Valenti testified on behalf of defendant and affirmed -4- [* 6] that, in order to operate the elevator in defendant's facility, one had to be a member of the appropriate union, and the freight elevator was the only means of moving works of art into or out of the building. Valenti EBT, at 18-19, 20-24, 27-29. Valenti a l s o stated that, during the p e r i o d in which Bittan leased space, he, Valenti, would be positioned at a counter in the building's lobby to control who entered the premises. Id. at 33-36, 89-93. Valenti said that, during the time that he was associated with defendant, there were no break-ins; however, one of its employees was fired after a tenant accused him of theft and the employee was arrested. Id. at 36-39. Valenti testified that the building in which the art work was stored had a state-of-the-artalarm and climate control system, was protected by motion sensors and alarm contacts on the doors and window, and had an audible siren. According to exhibits presented to Valenti at his deposition, on several occasions defendant released, received, and/or wrapped articles for Bittan. Vigilant maintains that defendant's motion ahould be denied because it has failed to explain how the work of art could have disappeared without defendant's negligence. . Further, Vigilant asBerts that a bailment may be created by the act of lawful -5- [* 7] possession of an object, which would render the possessor liable for failing to exercise reasonable care. In reply, defendant argues that Vigilant f a i l s to c i t e any act of negligence on the part of defendant and bases its entirk opposition on an impermissible inference founded on circumstantial evidence. Moreover, defendant maintains that there has been no evidence presented that it ever took possession of Triod, because the mere f a c t t h a t , as a landlord, it had access to the rented room does not support a conclusion that it obtained possession of the goods s t o r e d in that room. DISCUSSION "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted] . I 1 (lac Dept 2006). S a n t i a g o v F i l s t e i n , 35 AD3d 184, 185-186 The burden then s h i f t s to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 ( l BDept 2006); see Zuckerman v t C i t y of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary -6- [* 8] judgment muet be denied. See Rotuba Extruders, Inc. v Ceppos, 4 6 NY2d 2 2 3 , 2 3 1 (1978)* Defendant's motion is granted and the complaint is dismissed. Plaintiff's first cause of action is based on a breach of a bailment relationship. "A bailment is the possession or retention of property by one person under circumstances obligating him to deliver the property to another upon demand or at a given time. A bailment can be for mutual benefit, for the benefit of the bailor or for the benefit of t h e bailee. The standard of care required of the bailee varies with the type of bailment [internal citation omitted] . I 1 Gunning v Regina Metropolitan Co., LLC, 16 MiBc 3d 1131(A) (Civ Ct, NY County 2007). "If plaintiff is to recover for bailee negligence, [it] must establish that a bailment relationship existed with respect to the [ l o s t ] goods, and that t h e bailee failed to exercise the required standard of care in storing the goods. The statutorily defined standard of care provides: '(1) A warehouseman is liable for damages f o r l o s s of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable fro damages which could not have been avoided by the exercise of such care' [internal citations omitted]." S i n g e r Company v Stott & D a v i s Motor Express, Inc., 7 9 AD2d 2 2 7 , 231 ( 4 t h Dept 1981). Moreover, a bailment does not have to arise through a -7- [* 9] contract, but may also be created by the possession of the object and the d u t y to account for it. 1027 ( 4 t h Dept 1977). See Mack v Davidson, 55 AD2d When the custodian of the object is p a i d a fee, the custodian is required to exercise ordinary care in relation t o the bailed article. See Aronette Manufacturing Company v C a p i t o l Piece Dye Works, Inc., 6 N Y 2 d 4 6 5 ( 1 9 5 9 ) ; see a l s o F a l l e r v Scali, M c C a b e Sloves, Inc., 198 A D 2 d 96 (lSt Dept 1993). In the case at bar, defendant a s s e r t s that no bailment wa0 ever created. The basis of defendant's contention is the contractual relationship between t h e parties, which specifically identifies such relationship as one of landlord-tenant and states that it i s not one of bailment, and the fact that defendant was never in Bole posBession of Triod. See Kahn & Rolnick,- I n c . v Interborough F u r Storage Co., I n c . , 196 Misc 749 (Sup Ct, NY County 1949). However, viewing the evidence in a light most favorable to plaintiff, thereby assuming that a bailment was created, plaintiff still cannot prevail on its claim. A s atated above, since defendant received a fee f o r renting the room, its standard of care, if a bailment were effectuated, would be that of reasonable care. In other wordB, plaintiff would have to come forward with evidence in admissible form that -8- . -. . . . . . . . . . [* 10] establishes defendant's negligence in failing to use reasonable care to protect the work of art. This it cannot do. All of the evidence provided with the motion indicates that defendant maintained adequate security measures to safeguard its customers ' possessions, and plaintiff has not contradicted regarding defendant's alleged breach of its d u t y of care rests entirely on circumstantial evidence. To establish a claim of negligence that is based, as here, entirely on circumstantial evidence, a plaintiff must demonstrate the existence of 'facts and conditions from which the negligence of the defendant and the causation of the [loss] by that negligence m a y be reasonably inferred.' While plaintiff's proof need not positively exclude every other possible cause of the [loss], it 'must render those other causes sufficiently "rernote1lor l l t e c h n i c a l l lto enable a jury ta reach its verdict ba6ed not upon speculation, but upon the logical inference to be drawn from the evidence' [internal citations omitted]. Schneider v K i n g s Highway H o s p i t a l Center, Inc., 6 7 NY2d 7 4 3 (1986); J.E. v B e t h I s r a e l H o s p i t a l , 295 AD2d 281, 283 ( l uDept t 2002). In the instant matter, "summary judgment in defendant's favor is appropriate because 'it is just as likely that the [loss] could have been caused by some other factor (unrelated to any alleged negligence on defendant's part) . . . (and thus) any determination by the trier of fact as to the cause of the -9- [* 11] [loss] would be based upon sheer speculation' [internal citations omitted] . S m a r t v Zambito, 8 5 A D 3 d 1721, 1721 ( 4 t h Dept 2011). to his removing t h e items from the rented room that he saw Triod and, during the ten-year period in which Triod was stored in Triod wag stored in an unmarked box and that he maintained no inventory of the items that he kept in the room that he rented from defendant. In addition, Bittan a l s o stated t h a t it is possible that he removed Triod from the rented room himself, and he does not allege that Triod was stolen by defendant or defendant's facility and loaded onto the truck that he rented, or that it was not removed from his rented truck and placed in his New Jersey residence. Moreover, since Bittan did not even check the items removed from defendant's facility against his insurance policy for two weeks, it is also possible that Triod disappeared from his own home. Therefore, plaintiff cannot even establish that Triod w a s not r e t u r n e d to Bittan and, hence, defendant cannot be found to have breached its duty of ordinary care. -10- See [* 12] I.c. c. ?tals, Inc. v Municipal Warehouse Company, 5 0 NY2d 6 5 7 (1980). For the above reasofla, plaintiff's first cause of action, based on the breach of a bailment, and its second cause of action, based on negligence, must be dismissed. Similarly, plaintiff's third cause of action f o r Conversion must a l s o be dismissed. " A converaion takes p l a c e when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession . . . [internal quotation marks and citation omitted] . I 1 Dept 2011). T u d i s c o v Duerr, 89 AD3d 1372, 1373 ( q r h Not only has plaintiff failed to provide any *evidence that defendant intentionally interfered with Bittan's right of possession, but its own investigation concluded that Triod was l o s t due to a mysterious disappearance, not a conversion. Hence, plaintiff has failed to establish a prima facie case of conversion. CONCLUSION Based on the foregoing, it is hereby ORDERED that defendant's motion for summary judgment to dismiss the complaint is granted and the complaint is dismissed, -1 1- [* 13] of the Court upon submission of an appropriate bill of c o s t s ; and it is - f u r t h e r accordingly. ENPER : Louis #. York FILED JUN 14 2012 NEW YORK COUNJT CLERK'S OFFICE -12-
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