Nexum Global, LTD v Quick Park W. 42nd St., LLC

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Nexum Global, LTD v Quick Park W. 42nd St., LLC 2012 NY Slip Op 32542(U) October 1, 2012 Sup Ct, New York County Docket Number: 101553/2012 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 101912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PART PRESENT: I Justim 7 Index Number : 10155312012 NEXUM GLOBAL, LTD. INDEX NO. I I VS. - I QUlK PARK WEST 42 STREET, LLc SEQUENCE NUMBER : 001 I OTHER RELIEFS The following papem, numbered 1 to Answering Affidavits MOTION DATE MOTION SEQ. NO. ~ J - ,were read on this motion tolfor - Exhibi ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: ........... , ,,MOTION IS: clGRANTED &DENIED 3. CHECK IF APPROPRIATE: ................................................ 0SElTLE ORDER 1. CHECK ONE: 17DO NOT POST f l u *U(GRANTED 0OTHER IN PART . \ SUBMIT ORDER 0FIDUCIARY APPOINTMENT c REFERENCE ] [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEXUM GLOBAL, LTD Index No 101553/2012 Plaintiff, -against- QUICK PARK WEST 42 dStreet, LLC, Defendant. YORK,J.: Plaintiff Nexuin Global, LTD ( Nexurn ) moves for an order directing defendant Quick Park West 42 dStreet, LLC ( Quick Park ) to immediately return to plaintiff a 20 10 Yamaha motorcycle during the pendency of this action. BACKGROUND Plaintiff is the owner of a 2009 Smart car and a 2010 Yamaha motorcycle. Defendant operates a parking garage at 620 West 42ndStreet, New York, NY 10036. On June 5,2010, plaintiff filled in an application to park the motorcycle at defendant s garage at a monthly rate of $1 50.00 ($126.72 3- tax). On September 24,2010, plaintiff applied for parking of its Sinart car at the saiiie garage at a monthly rate of $200.00 ($168.95 +tax). Records of payments submitted by Quick Park show that in September of 201 0 plaintiff made a late payment for the motorcycle, and the garage charged a $15 late fee. Nexurn did not [* 3] pay for the garage in January and February 201 1, and accumulated late fees starting in January 20 1 1. By the end of August 201 1, Nexum brought its account up to date, but stopped making payments for the motorcycle in September 201 1. Plaintiff made a late payment for the Smart car in January 20 1 1, and incurred a $12 late fee. Though it paid the monthly fees for parking the car through October 201 1, it never paid that late fee, and accumulated additional late fees starting in August 20 1 1. All payments stopped in November 20 11. On plaintiffs version of events, it was prevented from using the car and the motorcycle in early September 20 1 1. Nexum submitted the affidavit of Jonathan Ducos, a security guard at Silvers Towers, 620 West 42ndStreet, where Quick Park is located. On September 2,201 1 he was called to investigate a situation at the garage. Two police officers were on the scene. Mr. Grozea, a vice-president of Nexum, was demanding that the garage manager release the Sinart car. When told by the manager that Nexum owed $8,000.00 in past due garage fees, the officers recommended that Mr. Grozea resolve this civil matter with the help of a lawyer. Quick Park does not comment on this incident but claims that plaintiff was denied access to both its car and motorcycle only in November 201 1. It acted in accordance with Section 184 of the New York Lien Law which authorizes a garage to detain a motor vehicle lawfully in its possession until the sum due for storage is paid. In garage s estimate, an outstanding balance of $2,140.00 in parking fees accrued from August 201 1 to May 2012 on the Yarnaha motorcycle, and a balance of $2,263.50 on the Smart car from January 201 1 to May 2012. In late February 20 12 Quick Park served a notice of sale of both vehicles on Nexum, in accordance with Section 201 of the New Yorlc Lien Law. It lists the amount due by Nexuin on the motorcycle as $1,615.00 and on the car as $1,634.50. 2 [* 4] This action was started by suiiimons and complaint dated February 13,2012 asserting breach of contract, unjust enrichment, conversion and replevin with damages estimated at $25,000. Following the service of notice of sale, plaintiff submitted a petition to vacate the lien on the Sinart car, in accordance with Section 201(a) of the New York Lien Law. In its application it erroneously stated that no lien was placed on the motorcycle. The second action was assigned the index 102201/2012. Plaintiff did not move to consolidate the two actions, and instead now moves in the present action for the release of the motorcycle. It does not provide the legal basis for this motion, and the court could treat it either as a motion for sumrnaiy judgment or a motion for injunctive relief. DISCUSSION Sunzmnry judgment Summary judgment is not warranted if there are material issues of fact in dispute. Quick Park has presented documents confirming that Nexum owes it garage fees. Nexum contests charges for late fees and correctly states that these charges are not mentioned in any contract signed by the parties. This issue cannot be resolved on the written record before the court. The conflicting versions of when Nexus was first prevented from taking its property from the garage are also material to the outcome of the case. If this event occurred when Nexum was behind on its payments, Quick Park was justified in retaining the vehicles in its possession. If, however, Nexuin could not use the car and the motorcycle while still fully paying for their storage, it has a legitimate claim for conversion against Quick Park. Where a garagekeeper claims more than is actually due, he or she is guilty of conversion and liable to the owner in damages. BMW Bank ofN. Am. v G & B Collision Ctr., Inc., 46 AD3d 875, 876-77, 850 N.Y.S.2d 470 [2d Dept 2007](internal citations omitted), 3 [* 5] The issues in dispute can only be resolved at trial. Injunctive relief: In its original motion, plaintiff requested the release of the Yamaha motorcycle. In its reply affirmation, it asks for the return of Nexurn s property detained by Quick Park, including the 2009 Smart car. This second request is untimely. In relation to the motorcycle, plaintiff has to demonstrate three things: (1) a likclihood of success on the merits of the action; (2) the danger of irreparable injury in the absence of preliminary injuiictive relief; and (3) a balance of equities in favor of the moving party. See, Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840; 800 N.Y.S.2d, 48 [ZOOS]. Plaintiff did not attempt to demonstrate lilcelihood of success on the merits. Neither does it risk suffering irreparable injury if the motorcycle remains in the garage, since it can be compensated for the period it did not use the niotorcycle should it win on the merits. The balance of equities would be in plaintiffs favor if potential harm to defendant could be prevented by creating an escrow account. In its reply affirmation, for the first time in this case, plaintiff offers to open an escrow account in which to place the alleged outstanding fees. Since the defendant was not given an opportunity to respond to this offer, the court will not consider it at this stage. The court will provide as injunctive relief only a stay on the motorcycle s potential sale. CONCLUSION Accordingly, it is ORDERED that plaintiffs motion for summary judgment is denied, and it is further ORDERED that plaintifl s motion for preliminary injunction to release the Yamaha motorcycle during the pendency of this action is denied, and it is further 4 [* 6] ORDERED that the sale of the Yamaha inotorcycle is stayed during the pendency of this action; and it is further ORDERED that parties appear at the preliminary conference in Room 205, 70 Thomas Street, on October 17,2012 at 2:OO p.m. J.S.C. 5

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