Summary
In Speno v. Dobbins Auto Parts, Inc., No. SC6378, 2003 WL 23138791 (City Ct. of Watertown N.Y. 2003), the court found that the defendant towing company converted the plaintiff's vehicle when it towed the plaintiff's vehicle-which was issued a ticket for an expired registration- without sending the required notice and refused to release the vehicle to the plaintiff until he paid the towing and storage fees.
Summary of this case from Santander Consumer U.S. v. The City of YonkersOpinion
SC6378.
Decided December 16, 2003.
PATRICIA A. SPENO PLAINTIFF, PRO SE.
GORDON O. DOBBIN for DOBBINS AUTO PARTS, INC. DEFENDANT, PRO SE.
FACTS
The plaintiff left her vehicle in a public parking lot in the Village of Adams. The local police issued a ticket to her on 7/7/03 for a expired registration and on 7/16/03 called the defendant to tow the vehicle from the public lot under lien law section 184(2).
The defendant said he had offered this service to all police agencies for many years and he was aware of the notice requirements imposed by lien law section 184(2) that had to be met before he could impose a storage fee for storing the vehicle. He said that he was unable to get the plaintiff's name or address for some time after the date he towed the car because the police department was not prompt in responding to such requests.
The plaintiff said once she learned her car was missing she went to the New York State Police who informed her it had been towed to the defendant's lot. She said that five days after it was towed she talked to the defendant on 7/21/03 about the situation.
The plaintiff testified that the defendant told her she could have the car back for $200 on 7/21/03 $100 of which was the towing cost over one half mile and $100 for a five day storage fee at $20 per day. The plaintiff testified that she told the defendant she did not have $200 but she could pay $100 towing fee to get it off the lot. She explained that she had an arrangement with a local garage to pay her $100 for the car and they would take possession of it at the defendant's lot once he released it. The plaintiff testified that the defendant rejected his offer to pay the $100 towing fee insisting at that time she also pay the $100 storage fee as well. She said that when she asked for an itemized bill to review he told her "you will not get a bill."
The defendant, who finally complied with the notice requirements of lien law section 184(2) by making the required notice on 10/01/03 and billing for storage as of 9/26/03 agreed that she may have contacted him before 9/26/03, "she could have contacted the office, I am not sure" and stated that he had offered before this to pay her $10 for her car and reduce her $100 towing bill by that amount.
LAW
Lien law section 184(2) allows a person who tows a vehicle at the request of a police agency a lien "for reasonable costs of such towing and storage" so long as the person "within five working days from the initial towing, mails to the owner . . . a notice by certified mail return receipt requested that contains the name of the person who towed and is storing said motor vehicle, the amount being claimed for such towing and storage and the address, and times at which said motor vehicle may be recovered." The statute also requires the notice to state that "the motor vehicle shall be released to the owner . . . upon full payment of all charges accrued to the date that said motor vehicle is released."
If such notice is mailed within the five day period a storage lien from and after the date of initial towing "shall be allowed." If such notice is not mailed within the 5 day period then the storage lien shall be only "from and after the date that notice was mailed." If no notice is mailed then the person who towed the car may still claim a lien for towing.
In Phillips v. Catania , 155 AD2d 866, 547 N.Y.S.2d 476 (4th Dept.), the Court ruled that "The right of a garageman to a lien for storage charges is strictly statutory and must be strictly construed" (id. p. 866). The Court went on to rule as there was no agreement with respect to storage fees as is required by Lien law section 184 that "`[I]n the absence of a specific agreement, the repairman may not recover damages for storage' ( Gotham Credit Corp. v. A H Service Station , 120 NYS2d 249, 750 [App. Term, 1st Dept.])." Id. P.866.
The Court stated that while the garageman might have had a valid lien for the reasonable value of his repair work, if the owner offered to pay it the garageman's "refusal to surrender the vehicle unless defendant paid the storage charges constituted a conversion [citations omitted]." Id. p. 866.
In Parker v. P N Recovery of New York , 182 Misc2d 342, 697 NYS2d 642, the plaintiff's car was towed at the request of a law enforcement authority. The garageman failed to give the notice required by lien law 184(2) to the plaintiff. The Court said that "[T]he garage keeper's right to a lien for storage charges is purely statutory and since the foregoing statutory provisions confer privileges in derogation of common law, the statutory scheme-lien law section 184 et seq.-must be strictly construed [citing Phillips v. Catania , supra]." Id. p. 345.
The Court went on to find that "[H]ere, P N, the garage keeper, did not serve a notice of lien upon the plaintiff within five days of the initial towing and thus P N was not entitled to a lien for storage from the date of towing. Lien law section 184(2)." Id. p. 345.
DECISION
It is clear from the credible evidence that after the plaintiff vehicle was seized and towed by the defendant on 7/16/03 at the request of the local police he did not send the appropriate notice to the owner until 10/1/03.
The credible evidence also shows that when the plaintiff learned where her car was from the police she went to the defendant's business to reclaim it and was told she could have it for the $100 towing fee and $100 for the storage fee. This was five days after the vehicle had been towed by the defendant.
The credible evidence shows that the plaintiff offered to remove the vehicle at that time by having it towed by another shop which would give her the $100 the other garageman felt it was worth to him. The defendant refused this offer by the plaintiff insisting that the whole amount requested ($200) be paid before the car would be released. This $200 included the $100 storage fee the defendant claimed from the date of towing on 7/16/03.
The credible evidence shows that the police agency who asked the defendant to tow the plaintiff's vehicle knew she was the owner and had her address because they issued a ticket to her for leaving the vehicle unregistered in the public parking lot on 7/7/03 a few days before it was towed on 7/16/03 by the defendant at their request. The defendant stated he did not send the required notice to the plaintiff as required by lien law section 184(2) within five days of 7/16/03 because he was unable to obtain from the police agency her name and address-the same police agency that had ticketed her for leaving the car unregistered in a public parking lot a few days earlier and left the ticket on the car according to the plaintiff. The Court does not find it can believe the defendant's statement he could not get her name and address from the same agency that had issued the ticket for expired registration a few days earlier that had that information on it-not to mention the fact that once the plaintiff found that her car was gone she was able to obtain from the police the information the defendant had been asked to tow it.
In Parker the Court found that where a garageman failed to give notice of lien within five days of the initial towing ". . . [it] was not entitled to a lien for storage from the date of towing" ( Parker , supra, p. 345). In Phillips the Court found that in such a case where the lien law was not complied with, a garageman "may not recover damages for storage" so "a refusal to surrender the vehicle unless the defendant paid the storage charge constituted a conversion" ( Phillips , supra, p. 866).
The Court finds that when the plaintiff approached the defendant in July 2003 to seek the return of her car before the defendant sent her the required notice of his lien for storage as required by lien law section 184(2) and the defendant demanded she pay the storage costs of $100 in addition to the $100 towing fee and refused to return the car unless both were paid, this failure "to surrender the vehicle unless [she] paid the storage charges constituted a conversion" ( Phillips ).
This would be the case even if the defendant could have claimed a lien for the reasonable costs of towing under lien law section 184(2) notwithstanding his failure to send the appropriate notice which would have enabled him to have also claimed a storage lien because he demanded both before the car would be released rather than just upon the payment of the cost of towing-the defendant was attempting to hold the plaintiff's car as hostage to collect a lien he was not entitled to and thus at that moment the conversion occurred.
Once this happened the defendant, having dispossessed the plaintiff of possession of her property, could no longer claim any future fees for storage of a vehicle he wrongfully refused to return to her due to this act of conversion so his belated compliance with the lien law notice requirements on 10/1/03 and a claim for storage fees from 9/26/03 is void due to the earlier act of conversion.
The plaintiff's damages "are the value of the automobile in [July 2003] at the time of conversion" ( Phillips , supra, p. 866). The plaintiff testified that she was trying to sell her 1991 vehicle which was not operating for $450. She claimed that the value of the car was from between $975 and $2,100 with a trade value of $1,000 to $1.200 (see letter of 10/13/03 to Attorney General). She stated in her testimony at trial that she had a willing buyer for the vehicle who would give her the $100 towing fee so the vehicle could be released to that person who would take possession of the vehicle and tow it from the defendant's lot.
The Court finds based on this evidence that due to the age and non-operable condition of the vehicle and the plaintiff's willingness to accept $100 from a person who would then take possession of it once she used the $100 to pay the defendant for the towing costs to release it-thus paying the debt of $100-the value of this vehicle established by the plaintiff's own testimony as a willing seller to a willing buyer was $100 in July 2003.
The Court finds that the defendant, notwithstanding his conversion of this vehicle as heretofore determined, would still be entitled to a $100 towing fee as provided by lien law section 184(2) as it was incurred before the date of conversion.
The plaintiff is awarded $100 based on the value of her car on the date of the conversion and the defendant is awarded on his counterclaim $100 for the costs of towing the vehicle on 7/16/03. The Court does not award costs to either party.