Opinion
CV-029949-10/KI
12-05-2011
Shatisha Bethel, Plaintiff, v. Plaza Residences LP, Respondent.
Plaintiff Pro-Se Shatisha Bethel: Attorneys for Defendant Plaza Residences, LP Robert H. Gordon, Esq Defendant Traffic Moving Systems, Inc
APPEARANCES
Plaintiff Pro-Se Shatisha Bethel:
Attorneys for Defendant Plaza Residences, LP
Robert H. Gordon, Esq
Defendant Traffic Moving Systems, Inc
Katherine A. Levine, J.
Plaintiff Shatisha Bethel ("Bethel" or "plaintiff") brings this action to recover the amount of $25,000 with interest from March 23, 2010, as a result of defendants Plaza Residences L.P. ("Plaza") and Traffic Moving Systems Inc ("Traffic") failure to return her possessions that she had been storing at Traffic after her eviction from Plaza on February 18, 2009.
Bethel originally sued Plaza. By Third Party Summons and Complaint dated July 26, 2010, Plaza sued Traffic.
Defendant Traffic defaulted by failing to answer the Third Party Complaint, respond to a judicial subpoena duces tecum and ad testificandum served upon it by Plaza, appear for trial on the first date of October 21, 2010, or respond to the Court's Order directing it to appear on the second trial date of December 16, 2010 .
Plaza contends that Bethel failed to prove any damages and that she brought the complaint in retaliation for having been evicted by Plaza from her apartment. In the alternative, Plaza contends that even should the court find in plaintiff's favor, Plaza is not liable since Traffic is an independent contractor and did not exercise control or dominion over Traffic's activities.Plaza asserts that the " injuries were completely or substantially due to the negligence, failure to exercise reasonable care, conversion, ...malfeasance..." of Traffic and that Traffic is completely or substantially liable for the injury. Therefore, defendant urges that it is entitled to contribution from Traffic to the extent that the court determines that Traffic is the actual party responsible for plaintiff's loss.
The instant case has its genesis in the holdover proceeding brought in Housing Court by Plaza, as landlord, to evict plaintiff, who was a tenant in the premises owned by Plaza. Defendant Plaza commenced the holdover proceeding after plaintiff's boyfriend, who was involved in a shooting incident in the subject apartment house, came to her apartment after the shooting. Plaza obtained a judgment of possession after a hearing on January 8, 2010, at which plaintiff failed to appear. Prior to the eviction, the marshal served plaintiff with a notice advising her that she had to remove all of her property from the premises. Plaintiff brought an Order to Show Cause to vacate the judgment of possession which was denied by the Hon. Cheryl Gonzales . On February 18, 2010, plaintiff was evicted. On that same date she brought a post eviction Order to Show Cause seeking to restore her to possession of the premises.
By Decision/Order dated February 19, 2010, Judge Gonzales again denied the OSC citing plaintiff's failure to state either a reasonable excuse for failing to appear at the original hearing or a meritorious defense. However, Judge Gonzales did grant plaintiff access to the apartment on that day to remove her property. Of particular relevance to the instant matter, the court directed that defendant Plaza remove Bethel's belongings and store the property at defendant's expense, for 30 days after said property was removed. The Court further ordered that plaintiff Bethel would become responsible for any charges incurred with respect to storage after 30 days.
It is undisputed that things went terribly awry once Bethel's property was removed by to defendant Traffic, per Judge Gonzales' order, on February 24, 2010. Ms. Brenda Francis from Plaza informed Bethel to contact Annie to get her stuff and Bethel subsequently spoke to one e "Annie" who told her she had to pay $900 before she could retrieve her items from the warehouse. The Court notes that Annie's alleged demand for payment flies in the face of Judge Gonzales' order that Plaza was responsible for storage for the first 30 days post eviction. In any event, on March 23, 2010, Bethel alleges she paid Annie $900 in cash, and submitted a receipt for this amount. Bethel also expended $600 to hire the van.
After paying the $900 to Annie at the Traffic Office, Bethel and her boyfriend Rodney Sykes were taken to the Traffic warehouse on 31 School Street. She described "her stuff to the guys at the warehouse." They opened a big gate and started to look for her "stuff"; they would not let her look because of liability. All of the furniture was heaped in a big pile and she could not find any of her items. The warehouse men did not have her inventory list and they admitted that her stuff had not been separately stored.
Bethel immediately called Annie and Ms Brenda about the loss of her furniture and Ms. Brenda allegedly replied that Bethel's stuff "was not her responsibility." However, Bethel alleges that Ms Brenda had previously told her that she would keep "her stuff." On March 24th Bethel did not call Traffic because she thought she just had to deal with Brenda Francis. Brenda told her on the 24th that Plaza was not responsible for what Traffic had done Around two weeks later she called Annie and inquired why she paid $900 for furniture that she was unable to retrieve. Annie passed the ball to Ms. Francis. Bethel called Francis a number of times who passed the ball back to Traffic. Bethel's boyfriend Sykes confirmed her rendition of what happened. He stated that while Bethel had her inventory sheet, "the Mexican guys" from the warehouse had no sheet.
Brenda Francis, the one witness presented by Plaza, testified that she had nothing to do with Bethel's storage issue with Traffic, despite Judge Gonzales' order which made Plaza responsible for storing the property and paying for the storage for 30 days. She testified that the Housing Court had directed Plaza to arrange for storage. Francis thereafter called Traffic to do the eviction and transport Bethel's possessions to its warehouse for storage. Francis said it was not unusual for a tenant's property to be placed in storage if he did not leave the apartment voluntarily. Traffic is an outside vendor that she has previously utilized - it is located in Yonkers so their prices are cheaper. Traffic's eviction procedures provide that "once Traffic has the tenant's possession we will relieve the landlord of any responsibilities. The tenant will have to deal with Traffic for the return of their belongings." Traffic's invoice indicates that Plaza paid $1202.00 for the eviction of Bethel's possession. Francis has never visited Traffic's storage site or inquired into Traffic's protocol for storage.
The Marshal drew up the inventory of Bethel's possessions and the building super or property manager gave Traffic access to the apartment. Traffic packed up the material on February 25, 2010 and moved it to the warehouse. Francis equated the invoice that Traffic submitted (defendant's B), which listed that 69 boxes had been moved to storage, with the marshal's inventory (plaintiff's "3"). She wanted to see that everything that was on the marshal's inventory had been moved. Yet Francis never submitted an actual inventory done by Traffic and it is impossible to equate a detailed list of items with a simple invoice of 69 boxes! Once the boxes were loaded onto the truck Plaza had nothing more to do with them. No one from Plaza was present when the boxes were unloaded at Traffic and Francis did not recall whether either the super or property manager from Plaza was actually present on the day of eviction.
Francis recalls Bethel calling to get the location of Traffic and also calling to complain about having to pay $900 to retrieve her items. Francis told her that once her stuff is moved out her tenancy is terminated and that Bethel had to make contact with Traffic. Traffic never calls about clients - it is up to the tenant to remove his possession from storage. She does not recall Bethel calling on March 24th and crying that she did not obtain her stuff, although she recalls Bethel informing her that she was going to sue Plaza. After being sued, she called Joey from Traffic who allegedly told her that Bethel had retrieved her stuff. On the second day of her testimony, Francis recalled that she spoke with Annie on March 24th who informed her that Bethel and her boyfriend had paid for and retrieved their possessions. Francis does not know whether Annie was actually at the site or just related what the warehouse staff allegedly told her.
Bethel is claiming $25,000 worth of damages. The predicate is the inventory list that plaintiff submitted from Traffic. Plaintiff submitted a receipt from an unnamed furniture store on Pitkin Avenue Ave 2/23/2006 for $3998 for bedroom furniture and lamps. (Plaintiff's exhibit 4(a)). She also submitted a receipt dated 2/19/10 for two unidentifiable items for the amount of $580 (Plaintiff's 4(b)). The Court also allowed into evidence two receipts from the Electronic Outlet Stores - one dated February 8, 2010 for a stereo system costing $1415.30, and the other receipt for a Samsung Television costing $726.18 (Plaintiff's 4(f)). Bethel thus submitted invoices admitted into evidence totaling $6719.48 and a receipt for $900 that she paid Traffic to retrieve her possessions.
It is clear that Traffic is liable to Bethel for all the furniture and possessions that it took into its possession and failed to return to Bethel, as well as the costs that Bethel incurred in attempting to retrieve her property. Defendant Plaza failed to rebut Bethel's testimony that she lost all of her items due to Traffic's negligence. Traffic's negligence and or malfeasance is compounded by its blatant disregard of its legal obligation to answer the complaint and appear in court.! Traffic is in default and is liable to plaintiff in the amount of $10,219.48 which represents 7619. 48 for items for which Bethel tendered receipts, the retrieval fee of $900, the cost of renting the van at $600 and another $2000 for the sundry unidentified items that were packed in the 69 boxes.
Defendant Plaza argues that since Traffic was an independent contractor over whom Plaza exercised no supervision or control, Plaza legally cannot be held responsible for any of Traffic's negligent acts. Plaza also contends that given Traffic's "outrageous behavior"in flagrantly disregarding this Court's order to appear for trial, combined with Plaza's efforts to bring Traffic into court, any liability to plaintiff should be assessed directly against Traffic.
Under New York law, "[o]rdinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors' work is performed." Meyer v. Rafik Ahmand and Shareef General Constr. , 2010 U.S. Dist. LEXIS 104872 (E.D.NY 8/20/10) citing Chainani v. Board of Educ. 87 NY2d 370, 380-81(1995). Accord, Burke v. Quick Lift, Inc., No. 05-CV-3731, 2008 U.S. Dist. LEXIS 29920 (E.D.N.Y Apr. 11, 2008).Therefore, the general rule is that "an employer who hires an independent contractor is not liable for the independent contractor's negligent acts"absent am appreciable amount of supervision, oversight, and control exercised by the principal over the contractor's performance. Kleeman v. Rheingold, 81 NY2d 270, 273 (1993). See, Rosenberg v. Equitable Life Assurance Soc'y, 79 NY2d 663, 668 (1992); Goodwin v Comcast Corp., 42 AD3d 322 (1st Dep't 2007); Grant v Washington Hgts. & Inwood Dev. Corp., 2009 NY Slip Op 31665(U), 2009 NY Misc. LEXIS 5384 (Sup. Ct. NY CO. 2009). See also, Restatement (Second) of Torts, §409 (1965). The mere retention of general supervisory powers over an independent contractor is insufficient to impose vicarious liability on the principal. Grant v. Washington Hgts, supra. See Brown v Transcare, et al., 27 AD3d 350 (1st Dep't 2006) (finding the City had no vicarious liability where the ambulance personnel provided by an independent contractor were not hired, compensated, or trained by the City). However, despite the courts' frequent recitation of the general rule against vicarious liability, the common law has produced a wide variety of so-called "exceptions". Kleeman, supra at 274 citing, Feliberty v Damon, 72 NY2d 112, 118; Restatement, op. cit., § 410-429). Indeed, it has been observed that the general rule "is now primarily important as a preamble to the catalog of its exceptions." Kleeman, supra, 81 NY2d at 274 (1993). Accord, La Count v Hensel Phelps Constr. Co., 79 Cal App 3d 754, 145 Cal Rptr 244 (1978) (general rule of nonliability applies only where no good reason can be found for departing from it); Restatement, op. cit., § 409, comment b, at 370 (same)).
These exceptions, most of which are derived from various public policy concerns, fall into three basic categories: (1) negligence of the employer in selecting, instructing or supervising the contractor; (2) employment for work that is especially or "inherently" dangerous (see, Wright v Tudor City Twelfth Unit, 276 NY 303, 307; see also, Rosenberg v Equitable Life Assur. Socy., supra); and, finally, (3) instances in which the employer is under a specific nondelegable duty (see generally, Restatement, op. cit., § 409, comment b, at 371).
Only the first exception could apply to the instant matter. To make out a common law claim of negligence against an employer for hiring an inept independent contractor, the plaintiff must show that the "employer either failed to exercise reasonable care in the selection of the contractor or had actual or constructive knowledge of the contractor's insufficiency." Basil White v. American Airlines, 73 F. Supp. 2d 349, 355 (S.D.NY 1999). See, Melbourne v. New York Life Ins. Co., 271 AD2d 296 (1st Dept. 2000); Sanchez v. United Rental Equipment, 246 AD2d 524 (2d Dept. 1998) (denying liability since record devoid of any evidence that the defendants knew, or should have known, upon reasonable inquiry, that Zano (independent contractor) was not qualified to transport the subject crane).
The record is devoid of any evidence that Plaza knew, or should have known upon reasonable inquiry, that Traffic Moving was either not qualified to safely store Bethel's possessions or had a propensity to engage in the negligent conduct which would result in the loss of her property. See, Katz v Eastern Constr. Dev. & Custom Homes, Inc., 2011 NY Slip Op 31440U, 2011 NY Misc. LEXIS 2609 (Sup. Ct., Suffolk Co. 2011). See also, Schiffer v. Sunrise Removal, Inc, 62 AD3d 776, 779 (2d Dept. 2009) (to find a party liable under theories of negligent hiring, retention, and supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury). In fact, Ms. Francis credibly testified that she had used Traffic in the past with no reported problems.
However, Judge Gonzales specifically directed that defendant Plaza remove Bethel's belongings and store the property at Plaza's expense for 30 days after said property was removed. As Bethel sought to remove her property from Traffic within the 30 days following Judge Gonzales' ruling, it is clear that Plaza was still responsible for paying for storage and assumed responsibility, per the court's order, to ensure that the property was safeguarded. The Court credits Bethel's testimony that she called Francis on a number of occasions commencing on March 23rd after her futile trip to regain her possessions. At the moment of Bethel's call, Plaza was alerted as to Traffic's negligence and was under an obligation to investigate Bethel's claims and attempt to locate the property. Rather than affirmatively acting to remedy the situation, such as going to the warehouse and demanding that Traffic locate Bethel's possessions, Plaza did nothing.
Francis' testimony was equivocal as to whether she even called Annie or anyone at Traffic on March 24th. Francis' comment to Bethel once" her stuff" was moved out, her tenancy was terminated and Plaza was relieved of any responsibility was callous and evinces a negligence, on Plaza's part, to adequately supervise Traffic after being apprised of Traffic's malfeasance. That Plaza started to call one "Joey," the manager of Traffic, after being sued, and then brought a Third party Complaint against Plaza, in no way excuses its negligence while it was under a responsibility to store Bethel's property.
In light of the above, the Court finds that Plaza is vicariously liable for some of the loss incurred by Bethel due to Traffic's negligence in losing her property. The Court directs that Bethel collect the judgment sum of $10,216.48 from Traffic Moving. If the Marshall cannot collect the judgment from Traffic, then Plaza will be liable to Bethel in the sum of $3500. Upon paying this sum to Bethel, Plaza is free to attempt to collect this sum from Traffic.
This constitutes the decision and order of the Court.
Katherine A. LevineJudge, Civil Court
ASN byin Court