Opinion
0256-20
06-04-2021
Ralph FLEURANTIN, Plaintiff, v. FIRST STREET CAR WASH & LUBE, Defendant.
Ralph Fleurantin, Plaintiff Pro Se First Street Car Wash & Lube, Defendant Pro Se
Ralph Fleurantin, Plaintiff Pro Se
First Street Car Wash & Lube, Defendant Pro Se
Adam Seiden, J.
Plaintiff brought this small claims proceeding to recover three thousand eight hundred dollars ($3,800.00) alleging negligence by defendant causing damage to his car. On January 11, 2020, the plaintiff took his 2006 CLS 55 Mercedes to defendant's car wash for cleaning. Plaintiff exited the car and one of defendant's employees got into the car to drive it to the start point where the washing process would mechanically begin. Defendant's employee drove the vehicle down an incline and smashed the front right fender and scraped the wheel area. Defendant's employee backed the car out of the wash tunnel and delivered it back to plaintiff.
Plaintiff submitted two estimates for damage, one for $4,788.00 and the other for $5,712.56.
Defendant argues that a sign is up explaining that the defendant's establishment is "not responsible for any damages whatsoever" and the customer should "wash the car at your own risk". Leaving aside whether this warning meets all standards for waiver of liability, the Court finds it is inapplicable to the case at bar. The waiver is for damages caused by the washing of the car and use of the mechanical process (brushes, etc). It has nothing to do with defendant's employee negligently driving plaintiff's car into the washing area. Plaintiff did not assume that risk. Schaivone v ARB Enters., Inc. , 48 Misc 3d 141(A) (App Term 2nd Dept. 2015) ; Courtney v Vescio , 131 Misc 2d 381 (Oswego City Ct 1986).
Defendant's further claim that the plaintiff's estimates are too high, without submitting any evidence to support that position. That argument is rejected as mere speculation. See Farsakh v Town Sports Intl., LLC , 66 Misc 3d 1202(A) (Sup Ct NY Cty 2019) ; DerOhannesian v Bergman , 134 Misc 2d 540 (Albany City Ct 1987).
Judgment for plaintiff in the sum of $3,800.00. The value of the damaged car is less than the cost of fixing the damage.
The above complies with the Court's statutory charge to do substantial justice between the parties.
The above constitutes the decision and order of the Court.