Doumbia v Kahn

[*1] Doumbia v Kahn 2019 NY Slip Op 50198(U) Decided on February 21, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2019
Civil Court of the City of New York, Bronx County

Youssoufou Doumbia, Plaintiff(s),

against

Adel Kahn AND JF MOTORS LLC D/B/A WORLD AUTO, Defendant(s).



23805/18



Plaintiff appeared pro se

Counsel for defendants: Richard Simon, Esq.
Fidel E. Gomez, J.

The instant action is for the return of a deposit paid towards the purchase of an automobile. The complaint alleges that on August 8, 2018, plaintiff purchased a vehicle from defendants and that after the same failed to start, defendants took the vehicle and never returned the same. It is further alleged that plaintiff sustained damages totaling $12,680.

Upon the testimony and evidence proffered at trial, the Court hereby finds in favor of plaintiff.

Preliminarily, the Court notes that this action was initiated by an endorsed complaint, which limited the facts to those noted above. However, after trial, it is clear that the instant action is for conversion and the Court's decision will be decided accordingly.

At trial, plaintiff [FN1] , in his case in-chief, testified, in pertinent part, as follows: On August 8, 2018, plaintiff purchased a motor vehicle - a Maserati - from nonparty Triple Crown Auto Sales (Triple Crown). In connection with the purchase of the vehicle, plaintiff dealt with defendant ADEL KHAN [FN2] (Adel). Plaintiff paid Adel, also dealt with an individual named Joe, and was also assisted by another individual - Alex Saleem (Saleem) - all whom, were employed at Triple Crown. Subsequently, three weeks later, the vehicle would not start. Plaintiff called Adel to report the problem, who sent a tow truck to pick-up the vehicle in order to repair it. Weeks later, after the vehicle had not been returned to plaintiff, he spoke to Adel, who indicated that they were awaiting parts. Sometime in October, after his vehicle had not yet been returned, plaintiff called Triple Crown and got no answer. He reported to Triple Crown and found that they had closed the business and that the location was empty. While there, he encountered others [*2]who were also looking for Triple Crown and its staff. Plaintiff learned that Adel was also employed defendant JF MOTORS LLC D/B/A WORLD AUTO (World Auto). Sometime in December, plaintiff reported to World Auto, saw Adel there, called the police, but was unable to have the police take a report. He then reported to a police station in the Bronx to file a report about the theft of his vehicle and was told that he could not file a report for theft when, as here, he gave Triple Crown the keys to the vehicle and voluntarily relinquished it to them. While at World Auto, he learned that Adel also worked at another dealership called Auto Sale. He reported there and saw Joe, who indicated that he was unaware that plaintiff's vehicle had not been returned. With regard to his damages, plaintiff testified that when he purchased the vehicle, he put $6,000 down and received $5,000 for his vehicle - an Audi - which he traded-in. Plaintiff also testified that he incurred an additional $1,680 in damages insofar as he made three payments to the bank for the vehicle, as required by the relevant agreement.

Plaintiff, upon stipulation with defendants' counsel, submitted a Retail Instalment Contract (Plaintiff's Exhibit 1) into evidence, which indicates that on August 8, 2018, he purchased a 2014 Maserati Ghibli from Triple Crown. The contract indicates that plaintiff paid $11,000 towards the vehicle and financed the remainder - $31,355.61 As per the contract, plaintiff would make 72 monthly payments towards the amount financed in the amount of $560.89. Plaintiff, also upon stipulation, submitted a CarFax Report (Plaintiff's Exhibit 2), which indicates that it was for a 2014 Maserati Ghibli and that it was being provided by World Auto. The report is dated September 28, 2018.

Defendants, in their case in-chief, elicited testimony from Carolina Canaan (Canaan), the Finance Manager at World Auto, who testified as follows: World Auto never sold plaintiff a vehicle. While Adel was the General Manager at World Auto, he nor World Auto had any relationship with Triple Crown. Moreover, Adel was never involved in the sale of any cars at World Auto. With regard to the CarFax Report indicating that it was provided by World Auto, Canaan testified that it was not uncommon for dealerships to provide such reports at the request of other dealerships. Said report did not mean that World Auto sold the vehicle therein to plaintiff.

Based on the foregoing, the Court credits plaintiff's testimony and finds that Adel converted plaintiff's vehicle while employed by both Triple Crown and World Auto, and that such conversion was within the scope of Adel's employment with World Auto such that World Auto is vicariously liable for Adel's tortious conduct.

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]).

"A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49—50 [2006]; see Peters Griffin Woodward, Inc. v WCSC, Inc., 88 AD2d 883 [1st Dept 1982]). Thus, to establish conversion a plaintiff (1) must demonstrate legal ownership or an immediate superior right of possession to a specific identifiable thing; and (2) that the defendant exercised an unauthorized dominion over that property to the exclusion of the plaintiff's rights (Meese v Miller, 79 AD2d 237, 242—43 [4th Dept 1981]; Indep. Discount Corp. v Bressner, 47 AD2d 756, 757 [2d Dept 1975]). Property in an action for conversion must be tangible personal property (Indep. Discount Corp. at 757), or money (id. at 757; Peters Griffin Woodward, Inc. at 884).

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 [*3]New York, 119 AD3d 672, 673 [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]). Originally, liability under the doctrine was premised on circumstances where the employee committed a tort while the employer could exercise close control over the employee (Riviello v Waldron, 47 NY2d 297, 302 [1979]). However, because such test necessarily barred an action against an employer when an employee, acting in furtherance of his employer's interest, nevertheless acted in an authorized manner, the test was altered and now the relevant inquiry is, as described above, "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with [the] disregard of [his] instructions" (id. at 302). Accordingly, an employer is now liable not only for any action taken by an employee while said employee is acting under the employer's explicit direction, but for "any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act" (id. at 303). While an employee's actions fall within the ambit of the scope of his employment where his actions "further the employer's interest, or [are performed] to carry out duties incumbent upon the employee in furthering the employer's business" (Wood at *77-78; Beuchamp at 466; Davis at 272; Stavitz at 531), "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (Wood at *77-78; Beuchamp at 466; Davis at 272; Stavitz at 531; Lucey v State of New York, 73 AD2d 998, 998 [3d Dept 1980]). Stated differently,

an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business

(Schilt v New York City Tr. Auth., 304 AD2d 189,193 [1st Dept 2003]; Stavits at 531) and, thus, for purposes of liability, the relevant inquiry is "whether the wrongful act is in the course of the employment, or outside of it, and to accomplish a purpose foreign to it" (Mott v Consumers' Ice Co., 73 NY 543, 547 [1878]). If the latter is true, then the master/servant relationship is severed and the master cannot be liable for the acts of the servant (id. at 547). For purposes of the doctrine, while foreseeability is of course a necessary element, it bears noting that for an employee to be regarded as acting within the scope of his employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected

(Riviello at 304; see also Schilt at 193).

Here, contrary to Canaan's testimony, the Court credits plaintiff's testimony that Adel sold him the Maserati while employed by both Triple Crown and World Auto, that Adel then took possession of the vehicle to repair it, and that, to date, Adel has failed to return the vehicle to plaintiff. Thus, here, plaintiff establishes all the elements of a conversion. To be sure, as noted above, "[a] conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito at 49—5; Peters Griffin Woodward, Inc. at 883). To establish conversion a plaintiff (1) must demonstrate legal ownership or an immediate superior right of possession to a specific identifiable thing; and (2) that the defendant exercised an unauthorized dominion over that property to the exclusion of the plaintiff's rights (Meese at 242—43; Indep. Discount Corp. at 757). Accordingly, based on plaintiff's testimony, plaintiff did, in fact, purchase the vehicle from Adel and Triple Crown, thereby conferring upon him ownership of the vehicle. Moreover, because Adel has refused to return the vehicle, he has exercised and continues to exercise unauthorized dominion over the vehicle to the exclusion of plaintiff's rights.Insofar as plaintiff's testimony credibly establishes that Adel committed the foregoing while in the employ of World Auto, World Auto is vicariously liable for Adel's tortious conduct. Significantly, an employer is vicariously liable under the doctrine of respondeat [*4]superior when, as described above, "the act was done while the servant was doing his master's work, no matter how irregularly, or with [the] disregard of [his] instructions" (id. at 302). Accordingly, an employer is now liable not only for any action taken by an employee while said employee is acting under the employer's explicit direction, but for "any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act" (id. at 303). While an employee's actions fall within the ambit of the scope of his employment where his actions "further the employer's interest, or [are performed] to carry out duties incumbent upon the employee in furthering the employer's business" (Wood at *77-78; Beuchamp at 466; Davis at 272; Stavitz at 531), "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (Wood at *77-78; Beuchamp at 466; Davis at 272; Stavitz at 531; Lucey at 998 [3d Dept 1980]). Here, plaintiff's testimony, which the Court credits, establishes that Adel sold and converted his car in furtherance of World Auto's business. Indeed, the sale of the car by Adele and the repossession of it for repairs fall squarely within the ambit of a car dealership's business such that Adel was furthering World Auto's business. The foregoing is bolstered by plaintiff's testimony that Joe, an employee of Triple Crown and Auto Sale, a dealership associated with World Auto acknowledged that plaintiff's vehicle had been repossessed for repairs and apologized that it had not returned. Accordingly, World Auto is vicariously liable for the acts alleged by plaintiff.

On the issue of damages, plaintiff, by virtue of the Retail Installment Contract establishes that he was damaged in the sum of $11,000. While plaintiff seeks an additional $1,680 in damages, representing payments he made as per the contract, he failed to submit any documentary proof thereof. Thus, the Court cannot award those damages to plaintiff. Notably, an "award of compensatory damages cannot be made in the absence of proof" (State Div. of Human Rights, on Complaint of Frost v New Star Homes Dev. Corp., 39 AD2d 598, 599 [2d Dept 1972] ["No proof however was tendered with respect to the actual counsel fees incurred by complainant or any other out-of-pocket expenses sustained by him resulting from the discriminatory refusal."]), and proof of damages in admissible form is required before such an award is made (200 Eleventh Assoc. v Lamontagne, 14 Misc 3d 139(A), *1 [App Term 2007] ["Plaintiff failed to submit evidentiary proof in admissible form establishing that it incurred any other damages or out-of-pocket expenses.]).It is hereby

ORDERED that the Clerk enter judgment in plaintiff's favor in the amount of $11,000 plus interest from the date of the judgment's entry. It is further

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

This constitutes this Court's Decision and Order.

Dated: February 21, 2019

__________________

Hon. FDEL E. GOMEZ, JCC

Footnotes

Footnote 1: It bears noting that while plaintiff appeared without counsel, beyond explaining his basic rights - the right to testify, question witnesses, proffer documentary evidence and interpose objections, the Court provided him no additional aid. While courts will generally accord "pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars" (Stoves & Stones, Ltd. v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). This, of course, is because it is well settled that "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Roundtree v Singh, 143 AD2d 995, 996 [2d Dept 1998]). Accordingly, this Court did not accord pro se plaintiff any special treatment and held him to the same standards of practice to which it held defendants' lawyer.

Footnote 2: Upon motions by the parties, the caption in this action was deemed amended to correctly identify the defendants.