Opinion
526051
07-11-2019
In the Matter of ALLY FINANCIAL INC., Respondent, v. ALL COUNTY TOWING, Appellant, et al., Respondent.
Peter B. O'Connell, Albany, for appellant. Law Offices of Rudolph J. Meola, Albany (Rudolph J. Meola of counsel), for Ally Financial Inc., respondent.
Peter B. O'Connell, Albany, for appellant.
Law Offices of Rudolph J. Meola, Albany (Rudolph J. Meola of counsel), for Ally Financial Inc., respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Devine and Rumsey, JJ.
MEMORANDUM AND ORDER
Devine, J. On April 22, 2017, respondent All County Towing (hereinafter respondent) towed a vehicle to its facility at the direction of the Village of Freeport Police Department. Petitioner, a lienholder, was advised that the vehicle had been impounded and was in respondent's possession, that the storage fees were accruing at a rate of $50 per day and that the vehicle would be released "upon full payment of all charges accrued." On May 4, 2017, petitioner's representative sought to recover the vehicle, but respondent refused to surrender it until petitioner provided a police release and a hold-harmless agreement.
Petitioner then commenced this special proceeding, seeking to, among other things, declare null and void the garagekeeper's lien claimed by respondent. Respondent released the vehicle to petitioner on July 20, 2017. Soon thereafter, respondent answered and asserted, as an affirmative defense, that it had fully complied with the requirements set forth in the Lien Law and that it was entitled to a lien in the amount of $8,089.08. Supreme Court granted the petition in part and declared the lien for storage void but for $416, attributable to towing and storage fees through May 4, 2017, and applicable taxes. Supreme Court further found that the $50 per day storage rate was unjustified and reduced it to $27 per day. Respondent appeals.
We affirm. Initially, although arguments may not be raised for the first time in a reply affirmation, petitioner's pleading sufficiently alleged that it "demanded the release of [the] vehicle" and that respondent made the release contingent upon improper demands (see CPLR 402, 3013 ; Matter of Santander Consumer USA, Inc. v. All County Towing, 171 A.D.3d 1258, 1259, 96 N.Y.S.3d 392 [2019] ; Matter of Nissan Motor Acceptance Corp. v. All County Towing, 161 A.D.3d 1423, 1424–1425, 77 N.Y.S.3d 219 [2018] ).
Turning to the merits, Supreme Court properly concluded that respondent's lien for the storage fees and administrative fee after May 4, 2017 was invalid. Petitioner proffered evidence that, through its representative, it sought to redeem the subject vehicle on May 4, 2017 and that, notwithstanding its efforts, respondent refused to release the vehicle absent police authorization and a hold-harmless agreement. For the reasons stated in our earlier decisions, respondent had no authority to make those demands and retain the vehicle beyond that date (see Matter of Vaul Trust v. All County Towing & Recovery , 171 A.D.3d 1336, 1337, 97 N.Y.S.3d 359 [2019] ; Matter of Santander Consumer USA, Inc. v. All County Towing, 171 A.D.3d at 1259, 96 N.Y.S.3d 392 ; Matter of HVT, Inc. v. All County Towing & Recovery, 166 A.D.3d 1441, 1442, 89 N.Y.S.3d 373 [2018], lv denied 33 N.Y.3d 910, 103 N.Y.S.3d 363, 127 N.E.3d 321, 2019 WL 2626223 [June 27, 2019] ; Matter of Ally Fin., Inc. v. All County Towing & Recovery, 166 A.D.3d 1442, 1444, 89 N.Y.S.3d 370 [2018], lv denied 33 N.Y.3d 910, 103 N.Y.S.3d 362, 127 N.E.3d 320, 2019 WL 2622422 [June 27, 2019] ). We lastly find no reason to disturb Supreme Court's decision to reduce the storage fee to $27 per day (see Matter of Vaul Trust v. All County Towing & Recovery, 171 A.D.3d at 1337, 97 N.Y.S.3d 359 ; Matter of Ally Fin., Inc. v. All County Towing & Recovery, 166 A.D.3d at 1444, 89 N.Y.S.3d 370 ).
We reject respondent's argument that an affidavit from a representative of petitioner was based on inadmissible hearsay and improperly considered (see CPLR 4518[a] ; Green Tree Servicing LLC v. Bormann, 157 A.D.3d 1112, 1115 n 2, 69 N.Y.S.3d 162 [2018] ; U.S. Bank Trust, N.A. v. Varian, 156 A.D.3d 1255, 1257, 68 N.Y.S.3d 556 [2017] ).
Egan Jr., J.P., Lynch, Mulvey and Rumsey, JJ., concur.
ORDERED that the order and judgment is affirmed, with costs.