Opinion
26300/2016E
03-14-2018
Sandra J. THOMPSON, Plaintiff, v. T & G RELOCATION SYSTEMS, INC., et al., Defendants.
Attorneys for plaintiff: Yoram Silagy, Esq., (Vernon & Ginsburg, LLP) Attorneys for defendants T & G Relocation Systems, Inc.; Gerry McGwyne; Geraldine McGwyne: Jennifer R. Oxman, Esq., (Lewis, Brisbois, Bisgaard & Smith, LLP)
Attorneys for plaintiff: Yoram Silagy, Esq., (Vernon & Ginsburg, LLP)
Attorneys for defendants T & G Relocation Systems, Inc.; Gerry McGwyne; Geraldine McGwyne: Jennifer R. Oxman, Esq., (Lewis, Brisbois, Bisgaard & Smith, LLP)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 Read on this motion, MISCELLANEOUS Noticed on August 30, 2017 and duly submitted on the Motion Calendar of October 25, 2017:
PAPERS NUMBERED
Notice of Motion—Exhibits and Affidavits Annexed 1,2
Answering Affidavit and Exhibits 3,4
Reply Affidavit and Exhibits 5
Upon the foregoing papers, the plaintiff Sandra J. Thompson ("Plaintiff") moves for an order "requiring defendants to return plaintiff's property, which they have admitted they are holding in storage." The defendants T & G Relocation Systems, Inc. ("T & G"), Gerry McGwyne, and Geraldine McGwyne (collectively, "Defendants") oppose the motion.
Plaintiff essentially seeks summary judgment on her causes of action for declaratory and injunctive relief (Complaint at Count 1), unlawful detention of goods in violation of the Truth–In–storage Act ( GBL § 608[2] ) and replevin (id. at Count 2), and conversion (id. at Count 4). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v. New York University Medical Center , 64 NY2d 85 (1985); Zuckerman v. City of New York , 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). "A cause of action sounding in replevin must establish that the defendant is in possession of certain property of which the plaintiff claims to have a superior right" ( Batsidis v. Batsidis , 9 AD3d 342, 343 [2nd Dept. 2004] ; CPLR 7101, 7102 ). To establish a cause of action for conversion under the circumstances at bar, a plaintiff must prove that the property was delivered to the defendant, that plaintiff made a proper demand for its return, and defendant failed to honor that demand (see I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 NY2d 657, 664 [1980] ).
In this case, Plaintiff's moving papers, exhibits, and the electronically-filed exhibits annexed to her summons and complaint (and referenced by both parties), establish her entitlement to summary judgment on the issue of Defendants' liability with respect to her first, second, and fourth causes of action. Plaintiff states that she entered into storage contracts with T & G in 2004 and 2007 wherein T & G agreed to store her art and furniture collection for $100 per month (from 2004–2007) and then for $250 per month (from 2007–2016). Plaintiff states that she "made payments to [T & G] for the storage of [her] property as agreed through April 2016." When she attempted to make the May 2016 payment, her check was returned. In June 2016, Plaintiff visited the warehouse and discovered that it was locked, and T & G appeared to be out of business. Plaintiff asserts that she called defendant Gerry McGwyne and demanded return of her property, but he advised that he did not know where the property was and refused to answer questions concerning how it could be retrieved. Plaintiff commenced this action in September 2016 and filed an order to show cause seeking a preliminary injunction barring the sale or disposal of the property. In response to the order to show cause, Defendants acknowledged that they were holding Plaintiff's property and stated that they would not dispose of it. Defendants also acknowledged that in December 2016, Plaintiff's counsel inspected the property which was being stored at a facility in Nanuet, New York. Plaintiff notes that she attended this inspection and took photographs of the property, however some of it was missing and some was damaged. Her counsel thereafter sent e-mails to Defendants' attorneys requesting release of the property, but those e-mails went unanswered. The foregoing contentions and evidence establish that (1) Plaintiff has a superior right to property stored with T & G; (2) that T & G remains in possession of Plaintiff's property, and (3) Plaintiff has made proper demands for the return of her property, but T & G has refused those demands. The burden therefore shifted to Defendants to raise a triable issue of fact.
In opposition to the motion, Defendants claim in part that Plaintiff failed to abide by the terms of the storage contracts. Specifically, Defendants allege that in 2010, Plaintiff was over $5,000 in arrears on the storage fee payments due under the contract. Thus, pursuant to Uniform Commercial Code ("UCC") § 7–210, Plaintiff "was allegedly notified over seven times via certified mail (in addition to numerous other efforts made to contact her by phone and email) that her goods would be sold or otherwise disposed of if her account was not put in order." Defendants claim that the forgoing raises factual issues as to whether or not they have a valid claim to the property by virtue of a warehouseman's lien ( UCC § 7–209 and 7–210 ). Defendants, however, provide no affidavit from an individual with personal knowledge attesting to the facts asserted in the opposition papers. These allegations lack probative value because they are entirely found in Defendants' affirmation of counsel, and counsel does not claim to have the requisite personal knowledge of the facts asserted (see Thompson v. Pizzaro , 155 AD3d 423 [1st Dept. 2017] ). Defendants submit a copy of a "Notice of Sale" dated August 1, 2010, stating inter alia that $5,560 in storage fees are outstanding and that the property would be sold on September 5, 2010, at 10:30AM. However, this notice is not certified or authenticated by anyone with personal knowledge, and Defendants failed to lay the foundation for its admissibility as a business record (see CPLR 4518[a],[c] ; see AQ Asset Management LLC. v. Levine , 128 AD3d 620, 621–22 [1st Dept. 2015] ). Furthermore, Defendants failed to provide any affidavit creating a presumption that this notice was properly mailed (see American Transit Inc. Co. v. Lucas , 111 AD3d 423, 424 [1st Dept. 2013], citing Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679, 680 [2nd Dept. 2001] ).
Since Defendants failed to submit admissible evidence that Plaintiff was actually behind on paying her storage fees, or that T & G ever asserted its right to enforce an alleged warehouseman's lien ( UCC § 7–209 ; 7–210), Defendants failed to raise an issue of fact as to whether it had or has a superior right to Plaintiff's property (see generally Shimamoto v. S & F Warehouses , 99 NY2d 165 [2002] ). Contrary to Defendants' contentions, Plaintiff's affidavit sufficiently stated that she "made payments to [T & G] for the storage of [her] property as agreed through April 2016," and Defendants have provided absolutely no admissible evidence refuting this claim. Defendants' failure to provide such evidence is fatal to its allegation that it complied with UCC Article 7 or that it is entitled to demand payment from Plaintiff prior to the return of her property.
Defendants argue that Plaintiff's replevin and conversion claims are barred by waiver, laches, and the Statute of Limitations ( CPLR 214[3] ). With respect to the Statute of Limitations issue, as noted supra , Defendants present no admissible evidence indicating that Plaintiff was given notice that "her right of possession was in jeopardy," as the 2010 Notice of Sale is not authenticated and Defendants present no affidavit from anyone with personal knowledge alleging that any other communications were made to Plaintiff regarding the property. While hearsay evidence may be used to oppose a summary judgment motion, it may not be the only evidence submitted in opposition so as to form the sole basis for the court's determination (see Acevedo v. York Intern. Group. , 31 AD3d 255, 258 [1st Dept. 2006] ). Defendants have presented no evidence contradicting Plaintiff's claim that she first sought return of her property in 2016 when her storage fee check was returned and she discovered that Defendants' building was locked. Defendants provided no evidence indicating that Plaintiff failed to exercise reasonable diligence in seeking the return of her property. For the same reasons, Defendants cannot argue that Plaintiff's claim is barred by the doctrines of waiver or laches. Furthermore, although Defendants' counsel asserts without personal knowledge that "the majority of the stored property was sold, lost, or otherwise disposed of," the record in this matter reveals that T & G never actually sold or disposed of the majority of Plaintiff's property. Indeed, Defendants noted that as of December 2016, it was housing the property in a facility in Nanuet, New York, and did not intend to sell or dispose of it.
Plaintiff's unrefuted evidence establishes a clear right to relief—i.e., her superior right to the property, and Defendant in response has failed to submit admissible conflicting evidence to raise a triable issue of fact as to any of its affirmative defenses regarding its alleged claim to the property (see, e.g., Theodore & Theodore Assoc., Inc. v. A.I. Credit Corp. , 172 AD2d 824, 825 [2nd Dept. 1991] ). Plaintiff thus established entitlement to summary judgment on her claim for inter alia a declaratory judgment and injunctive relief (see, e.g., Berichi v. Sloan, P.C. , 121 AD2d 884 [1st Dept. 1986] ; see also Walden Woods Homeowners' Ass'n v. Friedman , 36 AD3d 691 [2nd Dept. 2007] ). Contrary to Defendants contentions, this Court's denial of Plaintiff's prior request for a preliminary injunction has no bearing on her entitlement to relief on this motion. Since the parties treated this motion as one seeking summary judgment in Plaintiff's favor, this order does not need to be effected by a sheriff or supported by an undertaking, as is required by rule in cases of preliminary relief (see G & S Quality Inc. v. Bank of China , 233 AD2d 215, 215–216 [1st Dept. 1996], overruled on other grounds , Jaime v. Jaime , 19 AD3d 330 [1st Dept. 2005] ). The issue of damages must await trial.
Accordingly, it is hereby
ORDERED, that Plaintiff's motion for summary judgment is granted to the extent that T & G is directed to return Plaintiff's property that it currently has in its possession within thirty (30) days after service of a copy of this Order with Notice of Entry.
This constitutes the Decision and Order of this Court.