Renaissance Auto Advisory LLC v Smith

[*1] Renaissance Auto Advisory LLC v Smith 2020 NY Slip Op 50782(U) Decided on July 6, 2020 Civil Courtof The City Of New York, Queens County Li, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2020
Civil Courtof the City of New York, Queens County

Renaissance Auto Advisory LLC, Plaintiff(s),

against

Smith, Defendant(s).



031713-19



Plaintiff Counsel:

The Law Offices of Perry Ian Tischler, P.C.38-39 Bell Boulevard Suite 203Bayside, New York 11361

Pro Se Defendant
Wendy Changyong Li, J.

I.

The following papers filed with the court on February 21, 2020 were read on this motion by Plaintiff for a default judgment against Defendants pursuant to CPLR §3215:

Papers Numbered

Notice of Motion for default judgement dated January 27, 2020 1

Affirmation in Support dated January 27, 2020 2

Affidavit by Villamizar, Managing Member of Plaintiff, dated February 12, 2020 3

Exhibit A — Car Rental Agreement between Plaintiff and Defendant dated April 11, 2019 4

Exhibit B — Summons and complaint dated September 15, 2019 and filed with the court on September 18, 2019 5

Exhibit C — Affidavit of Service upon Defendant dated September 27, 2019 6

Exhibit D —Notice of intent to move for a default judgement dated October 1, 2019 7

Exhibit E — Towing invoice dated April 19, 2019 8

Exhibit F — Auto repair invoice dated April 29, 2019 9

Affirmation of Service of Notice of Motion for default judgement to Defendant dated February [*2]20, 2020 10

II.

Upon the foregoing papers read on and after March 9, 2020 during the coronavirus pandemic, it is ordered that this motion is decided as follows:

Plaintiff's motion for a default judgment pursuant to CPLR §3215 is granted without opposition. Plaintiff established a presumption of service based upon the process server's affidavit, and additional service pursuant to CPLR §3215(g) (Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]). Plaintiff also presented an affidavit of merit ("Affidavit of Merit") from Villamizar, Managing Member of Plaintiff, an individual with personal knowledge with the matter before this Court, who stated 1) that Defendant rented a car from Plaintiff from April 11, 2019 to April 18, 2019 pursuant to which Defendant would be liable for any damages to the vehicle incurred during the rental term; 2) that the vehicle was "substantial[ly]"damaged when it was returned; and 3) that Plaintiff incurred the following expenses: vehicle repair fee of $5,000, counsel fee of $1,500, loss of profits in the amount of $350 as of the date of his affidavit because the "vehicle was out of service for seven (7) days." Further, Defendant failed to oppose Plaintiff's motion.

III.

It is noted, however, that in its complaint ("Complaint"), Plaintiff demanded a) a damage of $5,000 for vehicle repairs as its first cause of action, b) a damage of $1,000 as loss of profits because the vehicle was "out of service [for] four (4) days for repair" as of the day of the Complaint, as its second cause of action, and c) a damage of $250 for "violations and municipal expenses, i.e. toll charges" incurred because of Defendant's action, as its third cause of action. In addition, in its Affirmation in Support ("Affirmation in Support") of motion for default judgement, the Plaintiff prayed for the following damages: i) $5,573.19 "on its first cause of action," ii) $350 "on its second cause of action," and iii) $1,500 "on its third cause of action."

Plaintiff's First Cause of Action

Plaintiff's first cause of action was about vehicle repair expenses incurred. In his Affidavit of Merit, Mr. Villamizar stated that the vehicle repair expenses were in the amount of $5,000. In its Complaint, Plaintiff demanded a damage in the amount of $5,000 as its vehicle repair expenses; however, Plaintiff prayed $5,573.19 as damage for its first cause of action. Under Exhibit F and Court's Paper No.9 referred to hereinabove, Plaintiff presented a vehicle repair invoice dated April 29, 2019 from Queens Quality Center, LLC in the amount of $5,000. Based on the evidence provided herein, this Court finds a damage in the amount of $5,000 for Plaintiff for vehicle repairs on its first cause of action.

Plaintiff's Second Cause of Action

Plaintiff's second cause of action was about loss of profits. In his Affidavit of Merit, Mr. Villamizar stated that his loss of profits was $350 because the "vehicle was out of service for seven (7) days", which means Mr. Villamizar allocated $50 as the loss of profits per day. However, Plaintiff demanded $1,000 as loss of profits because the vehicle was "out of service [for] four (4) days for repair," which allocated $250 per day for the loss of profits. Eventually, Plaintiff prayed $350 as damage "on its second cause of action" for the loss of profits.

Item 5 of the Car Rental Agreement ("Car Rental Agreement") between Plaintiff and Defendant dated April 11, 2019 under Exhibit A and Court's Paper #4, listed above, stated that:

"Renter will pay to Owner rental fees for use of the Rental Vehicle as follows:

Base fee: $40, $50, $60 per day."

It is noted that Plaintiff did not specify the daily vehicle rental rate (i.e., whether it was $40 per day, $50 per day or $60 per day). However, based on the Affidavit of Merit, Affirmation in Support and the Car Rental Agreement, this Court finds $350 as damage for Plaintiff on its second cause of action for loss of profits based on a daily rate of $50 for seven (7) days.

Plaintiff's Third Cause of Action

Plaintiff's third cause of action was about "violations and municipal expenses, i.e. toll charges" incurred because of Defendant's action.

There was no mention to the "violations and municipal expenses" in the Affidavit of Merits, however, Plaintiff demanded a damage in the amount of $250 for "violations and municipal expenses, i.e. toll charges" in its Complaint. Eventually, Plaintiff prayed $1,500 in damage "on its third cause of action" in its Affirmation in Support.

Under Exhibit E and Court's Paper #8 referred to hereinabove, Plaintiff presented a towing invoice dated April 19, 2019 in the amount of $573.19 from Coppa's Service Center & Towing, Inc. Based on such evidence, this Court finds $573.19 for Plaintiff on its third cause of action.

IV.

Accordingly, plaintiff's motion for a default judgment against Defendant is granted without opposition, and judgment is entered for Plaintiff against Defendant in the amount of $5,923.19 ($5,000 for Plaintiff on its first cause of action, $350 for Plaintiff on its second cause of action, and $573.19 for Plaintiff on its third cause of action) with interest computed from April 29, 2019, as well as costs and disbursements.

Dated: July 6, 2020

_____________________________________

"WENDY" CHANGYONG Li, J.C.C.