Exclusive Motor-Sport, LLC v Westlake Flooring Co., LLC
Annotate this CaseDecided on March 15, 2018
Supreme Court, Orange County
Exclusive Motor-Sport, LLC, PLAINTIFF,
against
Westlake Flooring Company, LLC, d/b/a WESTLAKE FLOORING SERVICES; ELITE COLLATERAL RECOVERY, INC.; TOWN OF WOODBURY and TOWN OF WOODBURY POLICE DEPARTMENT, DEFENDANTS.
EF002224/2017
Plaintiff counsel — Thomas Stanziale, Esq.
Defendant Westlake Flooring — Alysa Talarico, Esq.
Defendant Elite Collateral — Robert Yenchman, Esq.
Defendant Town of Woodbury/Town of Woodbury Police-Steven Stern, Esq.
Maria S. Vazquez-Doles, J.
The following papers numbered 1 - 11 were read on defendants', TOWN OF WOODBURY and TOWN OF WOODBURY POLICE DEPARTMENT (hereinafter the "TOWN") motion to dismiss the complaint and any cross claims insofar as asserted against it pursuant to CPLR 3211 for failure to state a cause of action:
Notice of Motion/ Affirmation (Holtzer) /Exhibits A - C 1 - 5
Affirmation in Opposition (Yenchman) 6
Affirmation in Oppoisition (Stanziale)/ Exhibits A-C 7-10
Reply Affirmation (Stern) 11
Upon review of the foregoing, it is ORDERED that the motion is granted; and it is [*2]further
ORDERED that the Complaint and all Cross-Claims as against defendants, TOWN OF WOODBURY and TOWN OF WOODBURY POLICE DEPARTMENT are dismissed.
On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Leon v. Martinez, 84 NY2d 83, 87 [1994]). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]; see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Tooma v. Grossbarth, 121 AD3d 1093, 1095 [2d Dept 2014]). Applying this standard, the plaintiff has failed to set forth a cognizable cause of action to recover damages for negligence against the TOWN.
This case involves an executed Loan and Security Agreement between plaintiff and WESTLAKE dated August 27, 2015 (hereinafter the "Agreement"). In the Complaint, plaintiff alleges that the TOWN allowed ELITE to wrongfully repossess, convert and take vehicles from plaintiff, failed to act in a reasonable manner and breached the peace in allowing WESTLAKE to perform a reckless, wrongful repossession, conversion and trespass including breach of the peace. Plaintiff alleges that the TOWN did not verify or do its due diligence in determining if the vehicle listed in the repossession order were the correct vehicles taken.
The elements of a common-law negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting therefrom (see Prescott v Newsday, Inc., 150 AD2d 541, 542 [2d Dept 1989]). Here, the plaintiffs failed to sufficiently allege any valid basis for the imposition of a duty of care on behalf of plaintiff to safeguard against the risk that WESTLAKE would repossess vehicles they did not have a security interest in. Liability for a claim that a municipality negligently exercised a governmental function 'turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public' " (Coleson v City of New York, 24 NY3d 476, 481 [2014], quoting Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]). The provision of police protection is a "classic" governmental function, and a municipality's general duty to furnish police protection "does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created" (Valdez v City of New York, 18 NY3d 69, 75 [2011]). A special duty—"a duty to exercise reasonable care toward the plaintiff"—is "born of a special relationship between the plaintiff and the governmental entity" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]; see Coleson v City of New York, 24 NY3d at 481).
As relevant here, a special relationship can be formed when the following elements are present: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]). [*3]The Complaint does not allege any of these elements and by not opposing the TOWN's allegations in their motion plaintiff has conceded that none of the elements exist in this case.
In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question (Korsinsky v Rose, 120 AD30 1307 [2d Dept 2014]). Plaintiff has failed to allege that the TOWN exercised any dominion or control over the vehicles in question. In opposition, plaintiff failed to raise a triable issue of fact.
In the context of a repossession the Uniform Commercial Code 9-609(b)(2) states that a
secured party may proceed to take possession of the collateral without judicial process if it proceeds without breach of the peace. The statute imposes a nondelegable duty upon the secured party, ELITE, to ensure that the repossession was carried out without a breach of the peace. However, due to the absence of any evidence of an agency relationship between ELITE and the TOWN, plaintiff cannot raise a triable issue of fact as to whether any nondelegable duty that might be imposed by UCC 9-609 would apply to the TOWN which is not a "secured party".
Concerning ELITE's cross-claims against the TOWN, it is argued that ELITE is not entitled to either indemnification or contribution as plaintiff has failed to state a claim against the TOWN as they did not breach any duty owed to plaintiff. In opposition, ELITE claims that the TOWN's motion is premature as there has been no discovery conducted. However, Defendants have failed to demonstrate that they have made reasonable attempts to discover facts which would give rise to a triable issue of fact or that further discovery might lead to relevant evidence (see CPLR 3212(f); Seaway Capital Corp. v 500 Sterling Realty Com., 94 AD3d 856 [2d Dept 2012]). Mere hope and speculation that discovery might yield evidence sufficient to raise a triable issue of fact is not a basis for denying summary judgment (Lee v T.F. DeMilo Com., 29 AD3d 867 [2d Dept 2006]).
The court has considered parties' remaining contentions and finds them to be without merit.
The foregoing constitutes the Decision and Order of this Court.
Dated: March 15, 2018
Goshen, New York
ENTER:
HON. MARIA S. VAZQUEZ-DOLES, J.S.C.
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