Warren v Downes
Annotate this CaseDecided on November 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1724 K C.
Robert Warren, Appellant,
against
Mervyn Downes, Celebrity Collision, Top Celebrity Collision, Respondents.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Bernard
J. Graham, J.), entered July 26, 2006. The judgment, after a nonjury trial, found in favor of
defendants dismissing the complaint.
Judgment affirmed without costs.
Plaintiff, a professional coin dealer, claimed that antique coins were stolen from the back of his van when it was being repaired in defendants' automobile repair shop. The coins were packed under several layers of items in the back of the van and were hidden from view. Plaintiff also claimed that several months later, bank notes were stolen from the back of his van by defendant Mervyn Downes while the van was parked on the street. Defendant Mervyn Downes, who is the sole proprietor of defendant Top Celebrity Collision (formerly known as Celebrity Collision), denied having stolen the coins or bank notes. After a nonjury trial, the court determined that defendants were not responsible for the loss.
A bailment is created when a motor vehicle is delivered by its owner to a repair shop for repairs (62 NY Jur 2d, Garages § 95; see also Burane v Poppy's Auto Wreckers, 13 Misc 3d 139[A], 2006 NY Slip Op 52240[U] [App Term, 9th & 10th Jud Dists]). With respect to items within the vehicle, however, there is no bailment unless there is knowing acceptance by the bailee of said items (9 NY Jur 2d, Bailments and Chattel Leases § 11). "Acceptance is absent when the property is not such as is usually and customarily left with a custodian in like circumstances and no disclosure of this fact is made. In that situation, the person sought to be charged as bailee having no reason to suppose the property has been delivered to him is liable only if on express notice" (Swarth v Barney's Clothes, 40 Misc 2d 423, 424 [App Term, 1st Dept [*2]1963]). In the instant case, the court below found that defendant Downes could not be held responsible for the loss of the coins since he had credibly testified that he had no knowledge that the coins were in the back of the van at the time he took possession of the van (see Robin v Colaizzi, 101 Misc 298 [App Term, 2d Dept 1917]). Similarly, the court was not persuaded that defendant Downes should be held responsible for the subsequent loss of the bank notes based upon the testimony of plaintiff's friend, who allegedly saw Mr. Downes carrying a box to his car the night before the discovery of the theft of the bank notes from plaintiff's van, which was the only evidence linking Mr. Downes to that loss.
Where the findings of fact of a trial court rest in large measure on considerations relating to the credibility of witnesses, the trial court's determinations should not be disturbed on appeal unless it is clear that its conclusions could not have been reached upon a fair interpretation of the evidence (see Bercow v Damus, 5 AD3d 711 [2004]). "Great deference must be afforded to credibility assessments made by the trier of fact, as it had the unique opportunity to view the witnesses, hear their testimony, and observe their demeanor" (see Matter of Piterniak, 16 AD3d 513 [2005]). In the instant case, the trial court's findings were based upon credibility determinations which were not inconsistent with a fair interpretation of the evidence. There is, therefore, no basis to disturb the judgment in favor of defendants dismissing the complaint.
Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 21, 2007
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