Opinion
Index No. SC-001026-20/BX
10-04-2022
Kojo D. Frimpong, Plaintiff, v. K&D Auto Parts LLC TRANSPORTATION CORP, GOLD STAR SHIPPING LLC, NANA OWUSU, Defendants.
Unpublished Opinion
HON. VERENA C. POWELL, J.C.C.
The Claimant commenced this action in the Small Claims Part, seeking compensation for property loss. Claimant maintains that Defendants were negligent in failing to secure one of three vehicles to be shipped overseas. The Claimant valued the vehicle, defective services, breach of agreement, and resulting loss of time from work at $10,000.00. A bench trial was held wherein Claimant and Nana Owusu, individually and as a representative of Gold Star Shipping, LLC, appeared and testified. K & D Auto Parts LLC Transportation Corporation did not appear.
Findings of Fact
Claimant Kojo D. Frimpong ("Frimpong" or "Claimant"), appearing pro se, testified that he purchased three vehicles from Insurance Auto Auctions Inc. ("IAAI"). He purchased a 2012 Toyota, a 2013 Nissan Juke ("Nissan"), and a 2015 Chevrolet Sonic ("Chevy") from IAAI's online auction in September 2020. Frimpong testified he paid $3,738.00 for the Nissan. Claimant contracted with Nana Owusu ("Owusu" or "Defendant") of Gold Star Shipping, LLC ("Gold Star") to transport the vehicles from the United States to Ghana, West Africa, and hired K & D Auto Parts LLC Transportation Corporation ("K & D") to transport the Chevy and the Nissan from the auction site to Gold Star.
IAAI sells lightly damaged, salvaged, clear-title vehicles, parts cars, trucks, SUVs, motorcycles, and heavy equipment at auctions across the United States.
K & D charged Frimpong $250.00 to transport the Chevy and $475.00 to transport the Nissan to Gold Star.
Frimpong testified he informed Owusu that K & D would deliver the Nissan to Gold Star. K & D delivered the Nissan on or about September 10, 2020. As Gold Star's storage lot was full, K & D informed Owusu that they would leave the Nissan on the street. Frimpong went to Gold Star to confirm that K & D delivered the vehicle; when he arrived, Owusu directed him to two other locations. Frimpong informed Owusu that he did not find the Nissan at either site. Frimpong then headed to work. Towards the end of September, Frimpong contacted Owusu to request the Nissan's shipping container number, only to learn that Owusu had not shipped it to Ghana. The car, which had extensive damage, had been towed away by the New York City Department of Sanitation ("Sanitation") and destroyed. Frimpong testified that Owusu told him that he would replace the Nissan but refused after Frimpong sent details as to the car he wanted and the related cost.
Defendant Owusu, also pro se, testified that K & D delivered the Nissan, leaving the car on a public street. When he went to move the vehicle, Owusu initially could not locate the keys. After finding the keys, he attempted to start the car, but the car would not start. Owusu requested that Frimpong send him the paperwork for the vehicle as the car did not have a license plate, was damaged and was parked on a public street. After receiving the paperwork, Owusu returned to the car only to discover that the vehicle was missing. He learned that Sanitation had towed the vehicle. Frimpong and Owusu went to a Sanitation site to reclaim the car, only to find out that it had been destroyed.
IAAI sent the documents to Owusu on September 11, 2020; FedEx delivered the papers on September 17, 2020.
DISCUSSION
Plaintiff's cause of action rests upon the theory that a bailment was established between the parties. "'Bailment' is defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract express or implied, that after the purpose has been fulfilled it will be redelivered to the person who delivered it, or otherwise dealt with according to that person's directions, or kept until it is reclaimed." Carter v. Mike's Auto, Inc., 27 Misc.3d 1212 (A), *3 (Poughkeepsie City Ct. 2010), citing 9 NY Jur 2d Bailments & Chattel Leases § 1."Usually, a bailee is liable for the fair and reasonable value of the lost property, which, if the item has a market value, is that value," and "[t]he market value is not necessarily the retail price, but its replacement value". A. Link Partners, Inc. v. Senderowicz, 2010 NY Slip Op 31215(U), *15 (Sup. Ct., NY Co. 2010) (internal citations omitted).
A bailment arose when Frimpong entrusted the Chevy and the Nissan to Owusu to transport them to Ghana. As Frimpong paid Owusu for his services, this bailment was for the mutual benefit of the bailor (Frimpong) and the bailee (Owusu). As such, Owusu is to exercise an ordinary degree of care. Jays Creations, Inc. v. Hertz Corp., 42 A.D.2d 534 (1st Dept. 1973). Owusu acknowledges that he received the Chevy and transported it to Ghana. He maintains that K & D is responsible for the loss of the Nissan as K & D left the vehicle on a public street.
Where a bailment is created, a showing that an item delivered to the bailee and returned in a damaged condition, or as here, not returned, establishes a prima facie case of negligence, and the burden shifts to the bailee to demonstrate he exercised ordinary care. See I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d 657 (1980); Bd. of Educ. of Ellenville Cent. Sch. v. Herb's Dodge Sales & Serv., Inc., 79 A.D.2d 1049 (3d Dept. 1981); and Castellano v. Key, 2014 NY Slip Op 32280(U) (Sup. Ct., NY Co. 2014). Here, Owusu accepted delivery of the Nissan from K & D.
The agreement between Frimpong and K & D was also a bailment. With the delivery of the Nissan to Gold Star and Owusu, K & D fulfilled its contractual obligation with Frimpong, there was a transfer of lawful possession, care, custody and control from K & D to Owusu. See Klotz v. El Morocco Int'l., 56 Misc.2d 319, 323 (Civ. Ct., NY Co. 1967).
Unavailability of the keys aside, Owusu could have hired a tow company to move the vehicle into his yard once space became available rather than leaving it on the street where the car was towed away and destroyed. Time was of the essence as Sanitation investigates and tags derelict vehicles for removal within three business days. Owusu's testimony that it was not his responsibility to safeguard the Nissan left on the road by K & D is unpersuasive. His actions did not demonstrate that he used ordinary care to protect the car. Consequently, Owusu failed to meet his burden of rebutting the presumption of negligence as bailee. Delucia v. Herbee Dodge, Inc., 19 Misc.3d 145 (A) (App. Term, 2d Dept 2008).
See https://portal.311.nyc.gov/article/?kanumber=ka-02130. Abandoned Vehicle ú NYC311
Accordingly, the Court grants judgment in favor of the Claimant against Defendants Gold Star and Owusu, jointly and severally, in the amount of $3,738.00, with costs and interest from August 25, 2020. The Court dismisses the complaint against Defendant K & D in its entirety.
This constitutes the Decision and Order of this Court.