Kohavy v Veritas Mgt., LLC

[*1] Kohavy v Veritas Mgt., LLC 2017 NY Slip Op 50515(U) Decided on February 27, 2017 Civil Court Of The City Of New York, Bronx County Montano, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2017
Civil Court of the City of New York, Bronx County

Daphne Kohavy, Plaintiff,

against

Veritas Management, LLC and 511 W. 232ND OWNERS CORP., Defendants.



1155 SCB 2016



Plaintiff- Craig Dietsh, Esq.

Defendants- Adam Felsenstein, Esq.
Armando Montano, J.

The following papers were considered in reviewing the defendants' motion to dismiss plaintiff's complaint:

PAPERS/NUMBERED Motion Dismiss and annexed Exhibits, Affidavit, and Memorandum of Law 1

Affirmation in Opposition and annexed Exhibits and Affidavit 2

Reply Affirmation 3

Plaintiff commenced this Small Claims action seeking recovery in the amount of $1,570.00, representing the cost of damage to plaintiff's automobile while stationed in a parking lot owned by defendant 511 W. 232nd Owners Corp. Defendants now move this court for an order dismissing plaintiff's complaint for failure to state a cause of action. Plaintiff opposes the motion. Based on the foregoing papers, the defendants' motion to dismiss plaintiff's complaint is denied in its entirety.

Background facts

Plaintiff leased a parking space in a parking lot adjacent to her apartment building. Pursuant to the Parking Lot License Agreement entered into between the plaintiff and defendant 511 W. 232nd Owners Corp. (hereinafter referred to as the "Cooperative"), the Cooperative is the owner of the parking lot. Defendant Veritas Management, LLC (hereinafter referred to as "Veritas") is the managing agent of the Cooperative. While parked in the Cooperative's parking [*2]lot pursuant to the Parking Lot License Agreement, plaintiff's automobile sustained damages from acorns falling from a tree overhanging plaintiff's parking space.In this instant motion, defendant Veritas argues that plaintiff's complaint should be dismissed as against Veritas for the following reasons: (1) defendant Veritas is not a party to the Parking Lot License Agreement and therefore there is no privity of contract between plaintiff and defendant Veritas; (2) defendant Veritas does not own the parking lot or the overhanging tree that damaged plaintiff's automobile; (3) defendant Veritas, as managing agent, does not maintain exclusive control of the premises; and (4) assuming arguendo that Veritas maintained exclusive control of the parking lot, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss further asserts that plaintiff's complaint should also be dismissed as against defendant Cooperative for the following reasons: (1) the Cooperative cannot be held liable in negligence as the damage to plaintiff's automobile was caused by a healthy tree; (2) assuming arguendo that the tree was defective, defendant Cooperative lacked notice of the defect; and (3) assuming arguendo that the Cooperative can be held liable in negligence, under the Parking Lot License Agreement, the plaintiff agreed to indemnify the Cooperative against any and all damage resulting from the plaintiff's use of the parking lot.

In opposition, plaintiff asserts that defendants' motion to dismiss for failure to state a cause of action should be denied in its entirety given that motion practice is discouraged and generally inappropriate in Small Claims Court. Plaintiff further asserts the following: (1) that the Cooperative owns the parking lot adjacent to its apartment building; (2) that defendant Veritas manages and controls the parking lot; and (3) that the exculpatory clause in the Parking Lot License Agreement is unenforceable as it seeks to exempt defendants from liability for damages resulting from its own negligence.

Motion to Dismiss

The hallmark of Small Claims Court is to adjudicate claims inexpensively and expeditiously. (See New York City Civil Court Act § 1804 [McKinney]; see also Friedman v. Seward Park Hous. Corp., 167 Misc 2d 57,58 [1995]). "The informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice under the CPLR prior to the hearing of their case." (Williams v. Friedman Mgt. Corp., 11 Misc 3d 139(A) [2006]). Therefore, pre-trial motion practice is severely discouraged and rarely, if ever, available in Small Claims Court. (See Courtney v. Beth Abraham Health Servs., 44 Misc 3d 144(A) [2014]; see also Sarver v. Pace Univ., 5 Msc.3d 70 [2004]). This discouragement and unavailability is especially applicable to motions to dismiss for failure to state a cause of action. (Weiner v Tel Aviv Car and Limousine Serv., Ltd., 141 Misc 2d 339, 341 [1988]). Nonetheless, "where the defendant has raised a clear issue of law on its motion to dismiss, resolution of that issue serves, rather than impedes, notions of substantial justice." (Gotbetter v. Grinberg, 20 Misc 3d 1126(A) [2008], citing Clegg v. Bon Temps, Ltd., 114 Misc 2d 805, 809 [1982]).

With respect to defendant Cooperative's motion to dismiss, the Cooperative has failed to raise a clear issue of law on its motion to dismiss to warrant deviation from the well-established principle that pre-trial motions are generally unavailable in Small Claims Court. There exist questions of fact regarding the condition of the overhanging tree that damaged plaintiff's

automobile, which would be determinative of the validity and enforceability of the exculpatory clause found in the Parking Lot License Agreement entered into between plaintiff and defendant Cooperative.

Section 5-325 of the General Obligations Law provides: "No person who conducts or maintains for hire or other consideration a garage, parking lot or other similar place which has the capacity for the housing, storage, parking, repair or servicing of four or more motor vehicles, as defined by the vehicle and traffic law, may exempt himself from liability for damages for injury to person or property resulting from the negligence of such person, his agents or employees, in the operation of any such vehicle, or in its housing, storage, parking, repair or servicing, or in the conduct or maintenance of such garage, parking lot or other similar place, and, except as hereinafter provided, any agreement so exempting such person shall be void." (see Langenthal v Am. Stuyvesant Garage, 72 Misc 2d 189, 190—91 [Civ Ct 1972]; see also Horowitz v Ambassador Assoc., Inc., 108 Misc 2d 412, 415 [Civ Ct 1981]). Thus, Section 5-325 of the General Obligations Law precludes defendants from relying upon an exculpatory clause in a licensing agreement absolving it from liability for its own negligence. In the case at bar, there exists an issue of fact regarding the condition of the tree, therefore, a trial is necessary in order for this Court to determine whether or not the defendants were negligent. Accordingly, plaintiff is entitled to a hearing of her case.

Similarly, with respect to defendant Veritas, while this Court is of the opinion that there is no privity of contract between plaintiff and defendant Veritas, questions of fact with regards to defendant Veritas' control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist. If plaintiff can prove that defendant Veritas, as managing agent to defendant Cooperative, maintained exclusive control over defendant Cooperative's parking lot as per the terms of their management agreement, and that plaintiff's damages were the result of defendant Veritas' negligence, plaintiff may be able to recover in negligence against defendant Veritas.

In its motion to dismiss, defendants further seek recovery for attorney's fees incurred as a result of the instant litigation pursuant to Paragraph 4(e) of the Parking Lot License Agreement. In New York, it is well-established that attorneys' fees are "merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority". (214 Wall St. Assoc., LLC v Med. Arts-Huntington Realty, 99 AD3d 988, 990 [2d Dept 2012] quoting Levine v. Infidelity, Inc., 2 AD3d 691, 692, 770 N.Y.S.2d 83). Paragraph 4(e) of the Parking Lot License Agreement between plaintiff and defendant Cooperative indeed provides for legal fees. Accordingly, in the event that Defendants prevail in the underlying action, Defendants may be entitled to reasonable legal fees incurred as a result of this litigation pursuant to the terms of the Parking Lot License Agreement.

This court further notes that the plaintiff herein commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that the defendants' motion to dismiss plaintiff's complaint is hereby denied in its entirety; and it is further

ORDERED that the parties shall appear for trial on March 21, 2017 at 6:00 p.m. in the Small Claims Part of the Civil Court of the City of New York, 851 Grand Concourse, Part 45, Room 103, Bronx, New York 10451; and it is further

ORDERED that the Plaintiff shall, within five (5) days of entry, serve a copy of this order with notice of entry upon Defendants by overnight mail.

This constitutes the decision of this court.

Dated: February 27, 2017

ENTER:

________________________________

Armando Montano, J.C.C.