Powers v Midtown Moving Stor., Inc.

[*1] Powers v Midtown Moving Stor., Inc. 2007 NY Slip Op 51082(U) [15 Misc 3d 142(A)] Decided on May 25, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-1249 K C.

Bessie Powers, Respondent,

against

Midtown Moving Storage, Inc., Appellant, -and- City of New York, Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 7, 2005. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $1,000 as against defendant Midtown Moving & Storage, Inc. (s/h/a Midtown Moving Storage, Inc.).

Judgment affirmed without costs.

Plaintiff commenced the instant small claims action against defendant moving and storage company ("Midtown") and the City of New York for damages to her personal property while it was in Midtown's possession during an underlying eviction process. After a nonjury trial, the court dismissed the action against the City of New York and found Midtown liable for damages in the sum of $1,000. In our opinion, the evidence at trial was sufficient to establish that Midtown, as a bailee, was liable to plaintiff for loss and damage to her property while it was in its possession (see Kemp v Mid-Town Movers, 2003 NY Slip Op 51154[U] [App Term, 2d & 11th Jud Dists]). Notwithstanding Midtown's argument to the contrary, plaintiff herein sought money damages and did not seek affirmative equitable relief (see Epstein v Kaplan, 150 Misc 520 [App Term, 1st Dept 1934]). Since there was a sufficient showing in the record to support the court's finding that the general release was executed under duress, the court properly declined to enforce it (see 19A NY Jur 2d, Compromise, Accord, and Release § 110).

We have considered the other issues raised, and find them to be without merit. [*2]Accordingly, substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807), and the judgment is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 25, 2007