Opinion
2017-1500 Q C
04-12-2019
Maureen PUCKERIN, Appellant, v. PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC., Respondent.
Maureen Puckerin, appellant pro se. Simmons, Jannace, Deluca, LLP (Michael C. Lamendola of counsel), for respondent.
Maureen Puckerin, appellant pro se.
Simmons, Jannace, Deluca, LLP (Michael C. Lamendola of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ.
Appeal from a judgment of the Civil Court of City of New York, Queens County (Donna Marie Golia, J.), entered August 28, 2017. The judgment, upon a decision of that court dated May 24, 2017, after a nonjury trial, dismissed the complaint.
ORDERED that, on the court's own motion, the notice of appeal from the decision dated May 24, 2017 is deemed a premature notice of appeal from the judgment entered August 28, 2017 (see CPLR 5520 [c] ); and it is further,
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this action to recover the expenses she had incurred when defendant refused to return her car after performing certain repairs. At a nonjury trial, plaintiff testified that she had her car towed to defendant's repair shop for the purpose of defendant repairing her vehicle. Plaintiff was subsequently informed by defendant's manager that although they had made certain repairs, the car was still not running and they could not ascertain why. Thereafter, plaintiff sought to have her car removed from defendant's shop but defendant refused to release it because plaintiff had not paid for the repairs that they had done. Following the trial, the Civil Court dismissed the complaint, finding that plaintiff had failed to establish that she was the owner of the vehicle and that, in any event, plaintiff had failed to establish her damages.
In reviewing a determination made after a nonjury trial, this court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v. Town of Bedford , 60 NY2d 492 [1983] ; Hamilton v. Blackwood , 85 AD3d 1116 [2011] ; Zeltser v. Sacerdote , 52 AD3d 824 [2008] ; D'Elia v. 58-35 Utopia Parkway Corp. , 43 AD3d 976 [2007] ).
Contrary to the Civil Court's determination, plaintiff established that she had caused her vehicle to be brought to defendant's repair shop for repairs and thus, as bailor, she established a prima facie case of conversion based on defendant's alleged wrongful exercise of dominion and control over her vehicle by refusing to return it to her upon her demand (see 9 NY Jur 2d, Bailments and Chattel Leases §§ 1, 21, 22 ; see also Cusack v. American Defense Sys., Inc. , 86 AD3d 586 [2011] ; Independence Discount Corp. v. Bressner , 47 AD2d 756 [1975] ). We note that defendant failed to introduce any evidence of a valid garageman's lien (see Lien Law § 184 ). However, the court correctly noted that plaintiff had submitted insufficient evidence of the damages she had sustained based on the alleged conversion (see Optimum Physique Inc. v. Best Bros. Auto & Truck Repair , 39 Misc 3d 139[A], 2013 NY Slip Op 50714[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ) and, thus, she was not entitled to any recovery. Plaintiff's remaining contentions lack merit.
We further note that, contrary to defendant's request, sanctions are not warranted, as the action was not frivolous (see Rules of Chief Admin of Cts [ 22 NYCRR] § 130-1.1 [a] ).
Accordingly, the judgment is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.