Opinion
570108/05.
Decided March 24, 2006.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court, New York County (Paul G. Feinman, J.), entered on or about December 15, 2003, after trial, in favor of plaintiff and awarding her damages in the principal sum of $1,750.
Judgment (Paul G. Feinman, J.), entered on or about December 15, 2003, reversed, without costs, and judgment directed in favor of defendant dismissing the action.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ
Considering "the place, the conditions, and the nature of the transaction" ( Osborn v. Cline, 263 NY 434, 437), especially the undisputed fact that plaintiff personally parked and locked her car and retained the keys, defendant may not properly be cast in damages for the property damage sustained to the vehicle in its open-air lot, in the absence of any affirmative showing of negligence on its part ( see Ellish v. Airport Parking Co., 42 AD2d 174, 177, affd 34 NY2d 882; see generally 19 Lord, Williston on Contracts § 53:14, at 66-67 [4th ed]).
Dismissal of the small claims action thus achieves "substantial justice" consistent with substantive law principles ( see CCA 1807).
This constitutes the decision and order of the court.
I concur.