Myers v Perrey

[*1] Myers v Perrey 2018 NY Slip Op 50267(U) Decided on February 22, 2018 City Court Of Ithaca, Tompkins County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2018
City Court of Ithaca, Tompkins County

Jeff Myers, Jr., Plaintiff,

against

Shoshana Perrey, Defendant.



SC47269-17
Scott A. Miller, J.

Plaintiff commenced this Small Claim on November 15, 2017 claiming $459.00 for damage to a food truck. On December 29, 2017, the Defendant, by and through her attorney, Samuel Frederick, Esq. of Trumansburg, filed a counterclaim for $4,588.75 for abuse of process by procuring Ithaca City Police Department Officers to file a false report and threatening the Defendant with prosecution unless she paid his demand for damages. At the hearing held on February 6, 2018, Plaintiff appeared and testified, and Defendant was represented by Samuel Frederick, Esq. of Trumansburg. Matthew Schweiger from the Ithaca Police Department also testified. Plaintiff's Exhibits 1 through 14 and 16 through 18 were marked and received into evidence as were Defendant's Exhibit A through E and G. After evaluation of the evidence, the Court finds and concludes as follows.

While attending Ithaca's Porchfest on September 24, 2017, Defendant, Shoshana Perrey, road her bike to 210 Hancock Street in Ithaca to purchase lunch in the area designated for food trucks. Jeffrey Myers was operating a food truck with his wife, Gabriella's Farm to Fork. Ms. Perrey intended to try something from the Myers' food truck after parking her bike. She looked around, and did not see bike racks. She walked her bike around to the back of the Myers' food truck, and leaned her bike against the trailer. She testified that the handle bars, which are foam wrapped, were the only part of the bike in contact with the truck. Plaintiff, Jeffrey Myers, testified that he was prepping food in the rear window, and saw Ms. Perrey lean her bike. He went outside, and asked her to move the bike. It was his testimony that she pulled the bike off, with an upward motion, leaving a tear in the 3M wrap around the food truck. The parties engaged in a conversation regarding repair of the truck, after which, Ms. Perrey consistently admitted that she thought she was at fault (Plaintiff's Exhibit 16).

Mr. Myers testified that he called the police to report the accident in order to preserve evidence (Defendant's Exhibit E). Officer Schweiger from the Ithaca Police Department had initially classified the incident as criminal mischief, listing Ms. Perrey as a "suspect" (id). Officer Schweiger explained that the classification had more to do with entering the incident into the IPD computer system, because the incident could not be classified as a motor vehicle [*2]accident, but that Mr. Myers did not request that Ms. Perrey be charged with a crime. Officer Schweiger did not observe the incident, nor offer any opinion as to its cause. It appears that Officer Schweiger closed the file on the incident on October 21, 2017, and no charges were filed (Id). Mr. Myers did not establish the size of the ding in the plastic, but he did submit one photograph, Plaintiff's Exhibit 3, establishing the damage. The Defendant submitted a photograph depicting the ding below the R in Myers (Defendant's Exhibit A). The Court was able to obtain a photograph of the food truck from an Ithacavoice.com online article, and based on the photograph, it appears that the letter R in Myers is approximately the size of a person's palm. This would make the ding roughly the size of a quarter.

Mr. Myers obtained two estimates from SpeedPro Imaging, the East Syracuse Company that had provided the wrap for the food truck (Plaintiff's Exhibits 14 and 18). The first estimate is $270.00 to patch the hole, and the second estimate is $459.00 to replace the full 3M vinyl panel. Mr. Myers testified that a representative from SpeedPro Imaging tried to patch the hole, but it was the wrong color, and Mr. Myers was afraid that cracks would spider web away from the ding. The incident has not been reported to the Myers' insurance company, according to Mr. Myers.

Ms. Perrey testified that despite her admissions of fault, she does not now believe she damaged the truck. She argues that, if anything, this was an accident, but she can not determine how she could have done this with her bike. Mr. Myers testified that he actually saw her tear the siding with the pedal of the bike. The pedal appears to have been at the correct height based on the location of the lettering at knee height.

The basic principles of negligence law govern this case. Not every accident is a result of negligence. The foundation of negligence is the "underlying duty owed to another, the possible danger to whom is reasonably foreseeable as the result of the conduct of the alleged wrongdoer" Kaloz by Kaloz v. Risco, 120 Misc 2d 586, 588—89, (Sup. Ct. Orange County,1983). The risk is only "reasonably to be perceived," but "prophetic vision" is not required (id). If a possibility is remote, then failure to guard against it is not considered negligence (id). The Third Department summarized the duty as follows:

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. 'The fundamental basis of liability for actionable negligence is the reasonable foreseeability of the risk, the ability reasonably to anticipate the risk; every possible accident due to unusual and reasonably unforeseeable combinations of circumstances is not included; reasonable foresight is required but not prophetic vision, Collins v. Noss, 258 AD 101, aff'd 283 NY596.

Morris v. Troy Sav. Bank, 32 AD2d 237, 238 (3d Dept,1969), aff'd, 28 NY2d 619, 268 N.E.2d 805 (1971)

In this case, there were no signs or other notice to notify customers about the fragile nature of the 3M vinyl. Leaning a bicycle against a food truck or trailer is hardly a remarkable event, in light of the music festival and the prevalence of bicycle riders to the off-site food truck area. The Court can find no reason Ms. Perrey could have foreseen the damage without prophetic vision. While Ms. Perrey may have lifted the bike and the pedal may have come in contact with the vinyl, there is absolutely no evidence that she removed the bike in a negligent manor or that she purposely sought to damage the vinyl siding. Her conduct did not fall "below [*3]the standard established by law for the protection of others against unreasonable risk" Morris v Troy Sav. Bank, Supra. There is no basis for liability in this claim, and therefore, the Court DENIES the claim in full.

Regarding the counterclaim for abuse of process, the Court finds that although Officer Schweiger initially classified the incident as criminal mischief, no criminal charges were ever filed. To sustain a cause of action for abuse of process, the Plaintiff must prove three elements by a preponderance of the evidence:

1) "Regularly issued process, [either] civil or criminal, compelling the performance or forbearance of some prescribed act."2) The person pursuing the process must be "moved by a purpose to do harm without...economic or social excuse or justification".3) The Defendant must be seeking some "collateral advantage" outside the legal result of that process.

(Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Assoc., Inc., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404 [1975])

"Commencement of an action, even with malicious intent, is insufficient" Walentas v Johnes, 257 AD2d 352 [1st Dept 1999]. In Minasian v Lubow, 49 AD3D 1033 [3rd Dept 2008], the Third Department set forth the general rule that "a claim of abuse of process will only lie for improperly using process after it is issued," which, the Court interpreted to be the filing of a criminal complaint (id at 1036). In this case, Mr. Myers declined to file a criminal complaint, but, instead, filed a small claim, which is the perfect venue within which to resolve these kinds of issues. Officer Schweiger testified that the incident was not investigated as a crime, and he received no request to charge from Mr. Myers.

Mr. Myers chose the proper venue within which to decide this civil claim, and therefore, the Defendant has failed to establish any of the required elements for a claim based upon abuse of process. The counterclaim, therefore, is DENIED.

In sum, Plaintiff's claim is DENIED and the Defendant's counterclaim is DENIED, no costs.This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

Dated: February 22, 2018

_s/___________________________________

SCOTT A. MILLER

Ithaca City Court Judge