Onyishi v Madi

[*1] Onyishi v Madi 2018 NY Slip Op 50907(U) Decided on June 13, 2018 Civil Court Of The City Of New York, Bronx County Gomez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2018
Civil Court of the City of New York, Bronx County

Constantine Nnaemeka Onyishi, Plaintiff(s),

against

Mohammad Madi and Fausto Rodriguez Jr., Defendant(s).



6147/18



Plaintiff pro se (Constantine Nnaemeka Onyishi)

Defendant pro se (Mohammad Madi)
Fidel E. Gomez, J.

The instant action is for loss of personal property and an automobile. Specifically, within his complaint plaintiff alleges that defendants failed to provide proper services, failed to return property and lost plaintiff's property. Thus, plaintiff seeks $15,000 in money damages.

Upon the testimony and evidence proffered at trial, the Court, as to defendant MOHAMMAD MADI (Madi) finds in his favor, and as to defendant FAUSTO RODRIGUEZ JR. (Rodriguez) finds in favor of plaintiff.

Plaintiff testified as follows: On January 7, 2018, he gave Rodriguez his 2003 Honda Pilot so that Rodriguez who had the credentials necessary to enter shipping ports could ship the vehicle to Africa. Plaintiff gave Rodriguez his vehicle's title and the requisite Bill of Lading, which was necessary to ship the vehicle. Rodriguez charged plaintiff $25 and agreed to ensure that the vehicle entered the port and was shipped to Africa. In addition to the vehicle, plaintiff also wished to ship personal items to Africa, which would be shipped aboard the vehicle and were actually in the vehicle when Rodriguez took possession of it. Specifically, plaintiff shipped two bags of children's clothing, two bags of children's shoes, three vacuum cleaners and a 60 inch television.

On March 14, 2018, plaintiff discovered that the vehicle had not yet arrived in Africa. Upon speaking to Rodriguez, plaintiff was informed that the vehicle had not been shipped because the the title and Bill of Lading did not match. Rodriguez indicated that upon being unable to ship the vehicle, he parked it within a lot owned by Madi. Plaintiff requested the return of his vehicle and upon reporting to Madi's lot, was unable to find his vehicle. Madi, however, did have plaintiff's title, which he returned. Plaintiff had never met Madi prior to reporting to his lot to retrieve his vehicle nor had Madi ever indicated to plaintiff that he had agreed to store his vehicle.

Plaintiff submitted a document into evidence (Plaintiff's Exhibit 1)—a printout from Kelley Blue Book's website—which indicated that as of May 27, 2018, the value of his vehicle was $4,650.

Madi testified as follows: Sometime in 2018, he was approached by Rodriguez, who sought to store plaintiff's vehicle in Madi's lot. However, Madi had no room and refused to accept the vehicle. While Madi did come into possession of the title to plaintiff's vehicle, he believes that he did so because Rodriguez merely delivered the same to Madi's office. Madi never agreed to store plaintiff's vehicle, which would have been reflected by a Bill of Lading and [*2]which Madi did not have. Prior to being approached by Rodriguez - who did not work for Madi - about retrieving plaintiff's car from his lot, he had never met plaintiff.

It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is to accorded great deference (Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]).

The essential elements in an action for breach of contract "are the existence of a contract, the plaintiff's performance pursuant to the contract, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v Global Naps Network, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Unless expressly proscribed by the Statute of Frauds (General Obligations Law § 5-701), a contract or agreement need not be in writing (see generally McCoy v Edison Price, Inc., 186 AD2d 442, 442-443 [1st Dept 1992] [Alleged oral agreement which, by its terms, was to last for as long as defendant remained in business was incapable of performance within one year, rendering it voidable under Statute of Frauds.]; Karl Ehmer Forest Hills Corp. v Gonzalez, 159 AD2d 613, 613 [2d Dept 1990] ["An oral promise to guarantee the debt of another is barred by the Statute of Frauds."]).

Generally, a bailment is a relationship created when one person comes into lawful possession of another's property and rather than appropriate the same, agrees to account for the same (Martin v Briggs, 235 AD2d 192, 197 [1st Dept 1997]). Because a bailment is often not the result of "conscious promises of the parties made in a bargaining process but from what the law regards as a fair approximation of their expectations" (Ellish v Airport Parking Co. of Am., Inc., 42 AD2d 174, 176 [2d Dept 1973], affd, 34 NY2d 882 [1974]), a bailment may be created in the absence of a contractual agreement when the bailee comes into lawful possession of the bailor's property and agrees to care for it (Martin at 197; see Foulke v New York Consol. R. Co., 228 NY 269, 275 [1920] ["It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not."]). The lynchpins of a bailment are "dominion and control by the bailee" (Motors Ins. Corp. v Am. Garages, Inc., 98 Misc 2d 887, 889 [App Term 1979]). A bailment relationship is continual, terminable at will upon the removal of the property by the bailor or notice to do so by the bailee (In re Courant, 142 AD3d 614, 616 [2d Dept 2016], lv to appeal dismissed, 29 NY3d 929 [2017]; Dupont v Joedon & Co., 107 AD2d 369, 372 [1st Dept 1985]).

In cases involving vehicles and in parking garages/lots, a bailment is created only when the parking garage agrees - by taking the owner's car and keys - to safeguard the car until the owner returns (Chubb & Son, Inc. v Edelweiss, Inc., 258 AD2d 345, 345—46 [1st Dept 1999] ["The motion court correctly found that the parking transaction constituted a bailment as a matter of law, since defendant's dominion and control of the car was established by undisputed evidence that its employee took the key to the car and employed a mandatory procedure to ensure the key's return." (Internal quotation marks omitted)]; Motors Ins. Corp. at 889—90 ["In the absence of contractual provisions to the contrary, the facts in this case would spell out that type of control by the defendant that points ineluctably to a bailee arrangement. The customer may park his own car or, if his spot was taken, the attendant would park it. He was required to give the garage keeper a set of his keys; his car is moved if required."]). Such relationship, however, is not created in cases where the parking garage does not knowingly agree to safeguard an owner's vehicle, such as when a car is self-parked in a garage by the owner and no keys are given to or left with the garage (id. at 889; Ellish at 653-654 [Court held that no bailment was created when [*3]plaintiff self-parked her car at defendant's garage, took her keys, and where defendant did not have employees actively checking cars into the garage.]; Gadsden v Allright Parking Mgt. Inc., 02-012, 2002 WL 1482542, at *1 [App Term June 25, 2002] ["The trial evidence shows, and it is not seriously disputed, that plaintiff was authorized to use defendant's garage as an incident of his employment; that plaintiff was advised through a memorandum circulated by his employer that defendant assumed no responsibility for damage to cars; and that on the night in question plaintiff entered defendant's multi-level, 2100-space garage facility through use of a pre-issued access key and parked and locked his car without assistance and while retaining his keys. No bailment was created by the impersonal parking arrangement depicted in the record." (Internal quotation marks omitted)]).

Thus, in the absence of negligence and/or a bailment a parking garage is not liable for the theft of an automobile (Ellish at 178), nor for property damage sustained by the vehicle while parked thereat (Gadsen at 1).

In an action for property damage, in addition to proof of damage to property, a plaintiff must establish the reasonable value of the property alleged to have been damaged (Cam v Mainor, 276 AD2d 416, 417 [1st Dept 2000]; Halkedis v Two E. End Ave. Apt. Corp., 161 AD2d 281, 282—83 [1st Dept 1990]; Giagheddu v Town of Colonie, 75 AD2d 198, 202 [3d Dept 1980]; Farrell v Klapach, 24 AD2d 590, 590 [2d Dept 1965]; Hamad v Avgush, 42 Misc 3d 132(A), *1 [App Term 2013]).

Here, after considering all the evidence adduced at trial, the Court, crediting Madi's testimony, finds that he never agreed to store plaintiff's vehicle such that he did not breach an agreement requirement the same. Moreover, the Court finds that because Madi never possessed plaintiff's vehicle there was no bailment relationship between Madi and plaintiff. As such, the instant action against Madi must be dismissed.

Specifically, Madi credibly testified, which testimony was corroborated by plaintiff's testimony, that he never met plaintiff prior to being approached by Rodriguez and plaintiff on the day they sought to recover plaintiff's vehicle from Madi's lot. Moreover, Madi credibly testified that he never agreed to store plaintiff's vehicle within his lot and never stored the same. Thus, since the essential elements of an action for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, and damages resulting from the breach (Dee at 209; Elisa Dreier Reporting Corp. at 127; Brualdi at 960; JP Morgan Chase at 803; Furia at 695), here, there was never any agreement between Madi and plaintiff so as to give rise to a breach.

Notably, Madi testified that Rodriguez did not work for him thereby precluding any claim that the agreement between Rodriguez and plaintiff bound Madi thereby making Madi vicariously liable for Rodriguez' acts. Indeed the doctrine of respondeat superior "renders an employer vicariously liable for torts committed by an employee acting within the scope of his or her employment" (Wood v State of New York, 119 AD3d 672, 672 [2d Dept 2014]; Beauchamp v City of New York, 3 AD3d 465, 466 [2d Dept 2004]; Davis v City of New York, 226 AD2d 271, 272 [1st Dept 1996]; McDowell v City of New York, 208 AD2d 507, 507 [2d Dept 1994]; Stavitz v City of New York, 98 AD2d 529, 531 [1st Dept 1984]). Here, however, there being absolutely no evidence that Rodriguez was employed by Madi, tthere exists no vicarious liability against Madi.

For the very same reasons—that Madi never agreed to store and did not store plaintiff's vehicle—there was never a bailment relationship between Madi and plaintiff. To be sure, a bailment is a relationship created when one person comes into lawful possession of another's property and rather than appropriate the same, agrees to account for the same (Martin at 197). The lynchpins of a bailment are dominion and control by the bailee (Motors Ins. Corp. at 889). Here, where there is no credible evidence that Madi ever came to possess and/or control, let alone knowingly possess and/or control plaintiff's vehicle, Madi cannot be liable under a theory that he was the bailee of plaintiff's vehicle.

With respect to Rodriguez, however, the Court finds in plaintiff's favor and enters [*4]judgment against Rodriguez for the value of plaintiff's vehicle—$4,650.

Preliminarily, as noted on the record, because Rodriguez failed to appear for trial despite being aware that this case would be tried on June 11, 2018, the Court issued a default judgment against Rodriguez and proceeded to inquest against him [FN1] . Thus, having defaulted, Rodriguez admitted all traversable allegations in the complaint on the issue of his liability and the only issue resolved against him at trial was damages (Amusement Bus. Underwriters, a Div. of Bingham & Bingham, Inc. v Am. Intern. Group, Inc., 66 NY2d 878, 880 [1985] ["Although a defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff's conclusion of damages but may, at an inquest, offer proof in mitigation of damages if it involves circumstances intrinsic to the transactions at issue in the plaintiff's complaint." (internal quotation marks omitted)]).

On the issue of damages, however, the only competent evidence submitted was the document from Kelley Blue Books' website valuing plaintiff's vehicle at $4,650. Indeed, in an action for property damage, in addition to proof of damage to property, a plaintiff must establish the reasonable value of the property alleged to have been damaged (Cam at 417; Halkedis at 282—83; Giagheddu at 202; Farrell at 590; Hamad at *1). Thus, to the extent that plaintiff seeks additional damages for the loss of personal property within his vehicle, the record is bereft of any proof itemizing the property with any specificity, let alone establishing the reasonable value thereof. It is hereby

ORDERED that the complaint against Madi be dismissed, with prejudice. It is further

ORDERED that the Clerk enter judgment in plaintiff's favor and against Rodriguez in the amount of $4,650, plus interest. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendants within thirty days (30) hereof.

This constitutes this Court's decision and Order.

Dated: June 13, 2018

FIDEL E. GOMEZ, JCC Footnotes

Footnote 1: According to 22 NYCRR 208.14(b)(1) "[a]t any scheduled call of a calendar or at a pretrial conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge presiding may note the default on the record and enter an order as follows . . . . [i]f the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest."