Jacobson v Parking Sys. Inc.

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[*1] Jacobson v Parking Sys. Inc. 2006 NY Slip Op 51817(U) [13 Misc 3d 1213(A)] Decided on September 26, 2006 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2006
District Court of Nassau County, First District

Jeff Jacobson, Plaintiff(s)


Parking Systems Inc. and THE CRESCENT BEACH CLUB, Defendant(s)

NSC 67/06

Stephen David Fink, Esq.

Jeff Jacobson, pro se

Scott Fairgrieve, J.

The plaintiff, Jeff Jacobson, brings this action to recover the value of personal property taken from his automobile, when the vehicle was stolen from the Crescent Beach Club parking lot. At the time, his car was under the care of a valet company, Parking Systems, Inc. The plaintiff had driven his vehicle to the Crescent Country Club on July 4, 2005, and the defendant, Parking Systems Inc., took possession of his keys and valet parked the vehicle. The facts demonstrate that defendant provided plaintiff with a claim ticket, but plaintiff did not retain possession of the ticket. Robert Guest, supervisor and account representative for Parking Systems, Inc., testified that he handles the staffing at the Crescent. Mr. Guest outlined, in his deposition, the procedures followed when a car is valet parked:

MR. DEPAULA:Can you tell us what the procedures are for when a car is taken in at that location?

MR. GUEST:Customer will pull up, we write out a receipt, a description of the car, the car is then parked in a spot. In the event that it couldn't be parked immediately, it would be pulled up to the side and the key may very well be left on the car. It is an enclosed lot, there is only one entrance.

MR. DEPAULA:How many attendants are present?

MR. GUEST:That would depend on the evening. I think this particular case was July 4th, again, I'm approximating, I didn't check the schedule, I would say probably seven, approximately seven.

MR. JACOBSON:There were five that night.

MR. DEPAULA:The receipt that the customer is given, is that preprinted like a card?

MR. GUEST:Yes. That's correct.

MR. DEPAULA:And is there any type of disclaimer on that, printed on this card?

MR. GUEST:Yes, on the bottom of the receipt there is.

MR. DEPAULA:And what is the disclaimer?

MR. GUEST:I can paraphrase it. It essentially says we're not responsible for personal contents.

MR. DEPAULA:Do you have any other knowledge of this incident?

MR. GUEST:It was reported to me, but I wasn't on site that evening.

Both parties agree that plaintiff's vehicle was stolen from the Crescent Beach Club parking lot. The plaintiff testified that he was told that the car keys were not secured in the box where keys were usually stored on the day of the incident. The defendant's supervisor informed plaintiff that when the box is full, the keys are placed on the front driver's side tire. The plaintiff also confirms that he was provided with a claim ticket from the defendant, stating that the parking lot operator is not responsible for personal property left in the car. This course of conduct was standard practice. As a result of the theft of the vehicle, plaintiff's laptop computer valued at $1,207.48 was allegedly stolen from the trunk. In addition, a pair of eye glasses valued at $763.00 were taken from the console located between the two front seats.


Is there any basis for the plaintiff to recover the value of the items of personal property taken from his automobile which was valet parked by Parking Systems, Inc.?

The legal relationship established between the plaintiff and the defendant is that of bailor and bailee (see Motors Ins. Corp. v. American Garages, Inc., 98 Misc 2d 887, 414 NYS2d 841 (App Term, 1st Dept [1979]). Generally, in the case of a bailment, the failure to return the item(s) bailed is prima facie evidence of gross negligence, requiring a bailee to come forward with an explanation (Roth v. Black Star Publ'g Co., 239 AD2d 484 [2d Dept 1997]).

However, in Swarth v. Barney's Clothes, 40 Misc 2d 423, 242 NYS2d 922 (App Term, 1st Dept [1963]), the Court refused to impose liability upon a parking operator when a wallet containing $350.00 was stolen from the vehicle, because no bailment was formed with respect to this item. The rationale expressed by this Court in reaching this decision is as follows:

[w]hen the defendant accepted the plaintiff's automobile for parking, it unquestionably became its bailee and assumed the liability flowing from that relation. It by no means follows, however, that it thereby also undertook the bailment of the wallet, whose presence in the vehicle was neither disclosed nor reasonably to be expected. Delivery, actual or constructive, to the person sought to be held as bailee is not enough to create a bailment; acceptance, actually or constructively, by the latter is equally essential (Osborn v. Cline, 263 NY 434, 437; Cowen v. Pressprich, 202 AD 796, revg. on dissenting opinion of Lehman, J., at Appellate Term, 117 Misc. 663, 676.) Acceptance is absent [*2]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, "for the bailee cannot by artifice be compelled to assume a liability greater than he intended" (Waters v. Beau Site Co., 114 Misc 65, 67). Self-evidently valuable and easily stolen articles are not left in parked automobiles, and the operator of a parking lot, without notice that they have been so left, is not liable as bailee in respect to them (Liggett v. Glen Oaks Club, 28 NYS2d 84, affd. 263 AD 702, 30 NYS2d 855; Crosby v. 20 Fifth Ave. Hotel Co., 173 Misc 595, mod. 173 Misc 604).

The attempt by the defendant, to limit liability with respect to the personal property by means of the parking receipt, is unenforceable. McKinney's General Obligations Law §5-325(1) mandates that such type of agreements are void and against public policy:

[n]o person who conducts or maintains for hire or other consideration a garage, parking lot or other similar place which has the capacity for the housing, storage, parking, repair or servicing of four or more motor vehicles, as defined by the vehicle and traffic law, may exempt himself from liability for damages for injury to person or property resulting from the negligence of such person, his agents or employees, in the operation or any such vehicle, or in its housing, storage, parking, repair or servicing, or in the conduct or maintenance of such garage, parking lot or other similar place, and, except as hereinafter provided, any agreement so exempting such person shall be void.New York courts have repeatedly refused to enforce disclaimers of liability in parking tickets (see Motors Ins. Corp., supra ; General Motors Acceptance Corp. v. Grafinger, 61 Misc 2d 670, 306 NYS2d 606 (Civ Ct, City of NY [1969]). Even though the disclaimer is invalid, this does not mean that the defendant is liable for the loss of the personal items. To impose such liability upon the defendant, the plaintiff must demonstrate that a bailment was created with respect to the personal property left in the car (see, Id.). The plaintiff has failed to prove such a bailment existed and thus his action must be dismissed for failure to prove a prima facie case.


In the case at bar, the plaintiff has failed to prove that a bailment relationship was created with respect to the personal property. Therefore, the case is dismissed with prejudice.

So ordered:


Dated:September 26, 2006

CC: [*3]