Schneiderman v Marcus

[*1] Schneiderman v Marcus 2004 NY Slip Op 51746(U) Decided on November 19, 2004 Supreme Court, New York County Beeler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
Supreme Court, New York County

SEYMOUR SCHNEIDERMAN, Plaintiff,

against

BARRY MARCUS, Defendant.



117652/03

Harold B. Beeler, J.

Defendant moves to dismiss the complaint for failure to state a cause of action, for summary judgment in his behalf or to remove to Civil Court because damage if any is less than $25,000. Plaintiff opposes.

In 1986, defendant, soon to be plaintiff's son-in-law, placed his 1962 Rolls Royce in the garage at plaintiff's country home in Garrison, NY. Plaintiff alleges that they agreed that he would advance the payments necessary to store, maintain and insure the vehicle and defendant would either repay on demand or transfer title to the vehicle when the accrued amount exceeded the value of the Rolls Royce.

On October 9, 2003, plaintiff filed a complaint requesting a declaratory judgment that he owns the Rolls Royce.

Plaintiff has a four-car garage in Garrison, NY occupied by three of his own vehicles. There is testimony that plaintiff paid about $3,000 for maintenance on one occasion in 1997 and began paying auto insurance premiums for the Rolls Royce in 1999. There is no evidence that the parties even discussed the arrangement at any time after its inception until sometime in 1998 when the defendant's marriage to plaintiff's daughter ended. In the interim, plaintiff tendered no bills related to the vehicle to defendant or requested payment of any kind. On the other hand, defendant never made personal use of the vehicle.

The Court finds sufficient evidence of a contract to support plaintiff's cause of action and triable issues of fact regarding the terms of the contract. Accordingly, the Court denies defendant's motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment in his favor.

However, the Court finds merit in defendant's estimate of damages should plaintiff prevail. There is no evidence of incremental site-related costs for plaintiff who had an empty space in his garage. Plaintiff's attempt to retroactively assess commercial rates for storing his [*2]son-in-law's vehicle fails because the reason for the arrangement, conceded by both parties, was to avoid high charges in commercial facilities. If there was an agreement, it seems to have been limited to actual costs incurred by plaintiff.

There is an allegation of approximately $3,000 maintenance costs to the plaintiff and evidence of his insurance premium payments approaching $15,000.

The Court, therefore, grants that branch of defendant's motion requesting transfer of the action to Civil Court because a reasonable damage estimate does not exceed $25,000.

This constitutes the decision and order of the Court.

DATED: November 19, 2004

E N T E R:

__________________________

HAROLD B. BEELER, J.S.C.