Burke v Riverbay Corp.
Annotate this CaseDecided on November 25, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570569/09.
Ernest Burke, Plaintiff-Respondent, -
against
Riverbay Corporation, Defendant-Appellant.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City
of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered on or about March 26, 2008,
after trial, in favor of plaintiff and awarding him the sum of $3,870.
Per Curiam.
Judgment (Nelida Malave-Gonzalez, J.), entered on or about March 26, 2008, reversed,
without costs, and judgment directed in favor of defendant-appellant dismissing the
action.
Plaintiff commenced this small claims action to recover damages for the alleged theft of his motorcycle, which plaintiff claimed was stolen from the parking garage owned and operated by defendant. The parties' relationship was governed by a written "Garage Agreement," which provided that the plaintiff "licensee" parked at his "own risk," and the trial evidence shows that plaintiff parked his motorcycle without assistance while retaining his 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, in the absence of any competent proof of negligence, defendant is not liable for the alleged theft of plaintiff's motorcycle (id.; see Rembert v Co-op. City Parking Garage, 86 Misc 2d 399 [1975]). Dismissal of the action thus achieves substantial justice consistent with substantive law principles (CCA 1807).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I ConcurI ConcurI Concur
Decision Date: November 25, 2009
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