Brinson v Lowe

[*1] Brinson v Lowe 2010 NY Slip Op 51062(U) [27 Misc 3d 143(A)] Decided on June 11, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-1313 K C.

Sarah J. Whitley Brinson, Appellant, Mr.

against

Dudley Lowe and LOWES AUTO RADIATOR SERVICE, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 26, 2009. The judgment, after an inquest, dismissed the action.

ORDERED that the judgment is reversed without costs and the matter is remitted to the Civil Court for a new inquest.

Plaintiff commenced this action to recover the sum of $16,025 for damages sustained when her car was vandalized while at defendants' automobile repair shop. Following an inquest, the Civil Court dismissed the complaint, finding that plaintiff had failed to prove that defendants were liable. On appeal, plaintiff argues that her car was vandalized while in defendants' custody and that defendants are therefore liable for the damage.

A bailment is created when a motor vehicle is delivered by its owner to a repair shop for repairs (Warren v Downes, 17 Misc 3d 136[A], 2007 NY Slip Op 52291[U] [App Term, 2d & 11th Jud Dists 2007]; Burane v Poppy's Auto Wreckers, 13 Misc 3d 139[A], 2006 NY Slip Op 52240[U] [App Term, 9th & 10th Jud Dists 2006]; 62 NY Jur 2d, Garages § 95). When there is a showing that the bailee failed to return the car or returned it in a damaged condition, a presumption of negligence arises, thereby establishing a prima facie case of negligence against the repair shop (see generally I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 [1980]). The burden then shifts to the bailee to show that it was not negligent (see Dixon v X-Treme Body & Fender, Inc., 20 Misc 3d 130[A], 2008 NY Slip Op 51422[U] [App Term, 2d & 11th Jud Dists 2008]; Motors Ins. Corp. v America Garages, 98 Misc 2d 887 [App Term, 1st Dept 1979]; Sealey v Meyers Parking Sys., 147 Misc 2d 217 [1990]).

Upon a review of the record, we find that a prima facie case of negligence was made out [*2]against defendants, who did not appear in the action. Consequently, defendants' liability was established and plaintiff is entitled to recover for the damage to her vehicle. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new inquest.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 11, 2010