Poliard v Cambudak Auto Repair Inc.

[*1] Poliard v Cambudak Auto Repair Inc. 2004 NY Slip Op 51514(U) Decided on December 6, 2004 District Court, Nassau County Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2004
District Court, Nassau County

Herlenz Poliard, Plaintiff(s),

against

Cambudak Auto Repair Inc., Defendant(s).



SC 2387/04



Herlenz Poliard, plaintiff pro se. Cambudak Auto Repair Inc., defendant pro se.

Scott Fairgrieve, J.

FACTS

Plaintiff owned a 1997 4Runner that had an engine problem. The vehicle was brought to the defendant for repair in March of 2004. Plaintiff paid defendant $1,000.00 for the repair and testified that he and the President of defendant Cambudak Auto Repair, Inc., Mr. Cambudak, agreed that the balance of $2,000.00 for the work could be paid during the summer of 2004. There was never any agreement nor any warning about storage charges being assessed.

In June of 2004, plaintiff brought another vehicle from defendant for $700.00. It was a 1992 Nissan that he intended to use for his newspaper delivery service. The $700.00 was paid out of the money which plaintiff was saving for repair of the 1997 4Runner. Plaintiff testified that the defendant agreed that he could pay the remaining portion of money due for repair of the 1997 vehicle by the end of the summer; defendant claims that he told plaintiff that he was using his repair money to buy the 1992 Nissan.

Plaintiff received a lien notice from the defendant charging him $3,175.50 for storage of the vehicle from March 1, 2004 through July 24, 2004 (146 days at $21.75 per day). The lien notice threatened to sell the 4Runner at public sale on August 18, 2004. Plaintiff went to the defendant on August 3, 2004 to pick up the 4Runner. In the document dated August 3, 2004, which is entitled "Estimates For Labor Only Material Additional", which plaintiff signed, it states: "on this day, I pay for the parking space which is $3000 and I'm taking the car home."

Plaintiff now seeks to recover the sum of $3,000.00 which represents the $1,000.00 initially paid for repair of the vehicle and the $2,000.00 on 8/3/04 which all was credited toward the storage charge. Plaintiff further states that the 4Runner was never repaired.

Is the plaintiff entitled to recover the $3,000.00 for storage charges under these circumstances?

DECISION

The Court grants judgment to plaintiff for the amount paid of $3,000.00 with interest from August 3, 2004. There was no discussion nor agreement between the parties concerning any charge for storage of the vehicle. The parties agreement pertained to repair of the vehicle. Plaintiff was under duress when he executed the August 3, 2004 agreement and sought to prevent defendant from selling his vehicle.

In Phillips v. Catania, 155 AD2d 866, 547 N.Y.S.2d 476 (4th Dep't 1989) the Court held that no agreement existed with respect to storage and that the refusal of the garageman to return the vehicle unless the storage charges were paid constituted a conversion; See also, F & N Corvette & Classics v. Corvette Repairs, Inc., 206 AD2d 349, 613 N.Y.S.2d 930 (2nd Dep't 1994) holding that the counterclaim seeking storage charges was properly dismissed where no agreement or circumstances permitted awarding of same. The Second Department also held that a garageman is guilty of conversion where a claim for money is made, when none is owed.

Thus, defendant's actions in forcing plaintiff to sign an agreement and to pay $3,000.00 for storage charges (for which there was no prior agreement) to prevent the sale of plaintiff's car constituted a conversion.

Plaintiff is entitled to a full refund of the $3,000.00 paid, together with interest from August 3, 2004.

So Ordered:

DISTRICT COURT JUDGE

Dated: December 6, 2004

Herlenz Poliard, plaintiff pro se. Cambudak Auto Repair Inc., defendant pro se.