Pinnock v Midwood Collision Corp.
Annotate this CaseDecided on January 13, 2012
Supreme Court, Kings County
Osmond Pinnock, Plaintiff,
against
Midwood Collision Corp., Defendant.
27684/11
Attorney for Petitioner
Trazana Phillip, Esq.
44 Court Street, Suite 809
Brooklyn, NY 11201
(718) 875-5799
Francois A. Rivera, J.
By order to show cause and verified petition filed on December 9, 2011, petitioner Osmond Pinnock has moved for an order: (a) canceling a garage keeper's lien attached to petitioner's 2002 Jeep Grand Cherokee [VIN No. IJ4GW48N12C211496] (hereafter "the subject vehicle") due to its invalidity pursuant to Lien Law 201-a; (b) denying respondent all charges for storage, parts and labor costs; and (c) directing respondent to release the subject vehicle to petitioner. The court granted a temporary restraining order enjoining respondent, or any party acting on respondent's behalf, from selling the subject vehicle pending a determination of the validity of the lien.
Although duly served the respondent Midwood Collision Corp.,has not appeared or submitted opposition to the order to show cause.
BACKGROUND
By the instant order to show cause and petition, Osmond Pinnock has commenced a special proceeding to determine the validity of the respondent's lien on the subject vehicle. The salient facts set forth in the verified petition and supporting affidavit of non-party Owen Pinnock are as follows. Petitioner, Osmond Pinnock, is the title owner of the subject vehicle, having paid $1,800.00 for it. In February 2011, petitioner gave the subject vehicle to his father, Owen Pinnock without transferring legal title. Around June 2011, Owen Pinnock allowed a mechanic to tow the subject vehicle to a service station to evaluate and estimate the cost of repairing it. The mechanic advised the petitioner and [*2]Owen Pinnock that the subject vehicle would require $2,500.00 in repairs. Neither the petitioner nor Owen Pinnock gave the mechanic permission or authority to conduct any repairs on the subject vehicle. On December 3, 2011, petitioner received a Notice of Lien and Sale bearing respondent's information, in the amount of $8,950.63.
MOTION PAPERS
The petitioner's motion papers consist of the order to show cause, a verified petition, three annexed exhibits labeled A through C, two affidavits of service and a separate attorney's affirmation. Exhibit A is a sales agreement for the subject vehicle evidencing that petitioner purchased the vehicle on August 7, 2010. Exhibit B is a copy of notice of lien and sale. Exhibit C is an affidavit in support by Owen Pinnock.
LAW AND APPLICATION
On December 9, 2011 this court directed personal service of petitioner's order to show cause, verified petition and supporting papers upon the respondent on or before December 12, 2011. Petitioner served the instant order to show cause upon a purported agent of the respondent corporation by personal service on December 12, 2011. Petitioner's affidavit of service evidences proper service upon the respondent corporation pursuant to CPLR 311(a)(1).
CPLR 403 governs the commencement of special proceedings, and states in pertinent part that, the court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein.
CPLR 409 concerns the hearing procedure of a special proceeding and provides as follows:
Hearing. (a) Furnishing of papers; filing. Upon the hearing, each party shall furnish to the court all papers served by him. The petitioner shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by such party at the hearing on notice served with the petition. The court may require the submission of additional proof. All papers furnished to the court shall be filed unless the court orders otherwise.
(b) Summary determination. The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment.
Pursuant to CPLR 409 (b), in a special proceeding, where there are no triable issues of fact raised, the court must make a summary determination on the pleadings and papers submitted as if a motion for summary judgment were before it (see Matter of Korotun v. Laurel Place Homeowner's Assn., 6 AD3d 710, 711 [2d 2004] citing, Matter of Friends World Coll. v. Nicklin, 249 AD2d 393 [2d 1998]).
Lien Law § 184 (1) provides in pertinent part:
A person keeping a garage, hangar or place for the storage, maintenance, keeping or repair of motor vehicles . . . and who in connection therewith tows, stores, maintains, [*3]keeps or repairs any motor vehicle . . . at the request or with the consent of the owner or, subject to the provisions of subdivision two of this section, tows and stores any motor vehicle at the request of a law enforcement officer authorized to remove such motor vehicle whether or not such motor vehicle . . . is subject to a security interest, has a lien upon such motor vehicle . . . for the sum due for such towing, storing, maintaining, keeping or repairing of such motor vehicle . . . and may detain such motor vehicle . . . at any time it may be lawfully in his possession until such sum is paid. . . .
Lien Law § 201-a provides in pertinent part:
Within ten days after service of the notice of sale, the owner or any person entitled to notice pursuant to section two hundred one of this article may commence a special proceeding to determine the validity of the lien... If the owner or any such person shall show that the lienor is not entitled to claim a lien in the property, or that all or part of the amount claimed by the lienor has not been properly charged to the account of such owner or such person, or, as the case may be, that all or part of such amount exceeds the fair and reasonable value of the services performed by the lienor, the court shall direct the entry of judgment cancelling the lien or reducing the amount claimed thereunder accordingly.
"In response to a challenge to the lien pursuant to Lien Law § 201-a, the lienor must make a prima facie showing of the validity of the lien and entitlement to the amount claimed (Matter of BMW Bank of N. Am. v. G & B Collision Ctr., Inc., 46 AD3d 875, 876 [2d 2007]). In this case those elements necessarily include, the existence of an agreement to repair the subject vehicle in accordance with the estimated repair cost and an agreement to pay storage charges.
A default in answering the complaint is deemed to be an admission of all traversable factual allegations contained therein and all reasonable inferences that flow from them (Woodson v. Mendon Leasing Corp. 100 NY2d 62 at 71 [2003]). The allegations of fact contained in the verified petition and Owen Pinnock's affidavit demonstrate prima facie that the petitioner did not agree to the repair or storage of the subject vehicle. The facts are deemed admitted by the respondent's default in appearing or answering the petition. Petitioner has therefore made a prima facie showing of the invalidity of the respondent's lien. Having failed to appear, respondent has made no showing under Lien Law § 184 to raise a triable issue of fact.
Accordingly, the decision order and judgment of this court is as follows:
The lien on the subject vehicle is hereby cancelled in its entirety.
In accordance with Lien Law § 201-a, upon service of a copy of the judgment together with notice of entry thereof upon the respondent, the petitioner shall be entitled to possession of the subject vehicle.
Enter:________________________________
J.S.C.
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