Opinion
012660/10.
December 10, 2010.
Papers Submitted:
Order to Show Cause ........................................ x Cross-Motion ............................................... x Affidavit in Opposition .................................... x Reply Affirmation .......................................... x Affidavit .................................................. x Reply Affirmation .......................................... xUpon the foregoing papers, the Petitioner's Order to Show Cause seeking to lift the Notice of Lien and Sale related to the Petitioner's 2005 Chevy Equinox bearing VIN #: 2CNDL13FX56124690, for outstanding towing, storage and other fees and the Respondents' Cross-motion seeking to dismiss the Petitioner's application and granting the Respondents' summary judgment compelling the Petitioner to pay the Respondents the charges it is seeking, are determined as hereinafter provided.
The Petitioner alleges that in April, 2010 her 2005 Chevy Equinox was involved in an accident when her husband, Ronald Wood, hit a parked car. The Petitioner's husband then arranged for the vehicle to be towed to the Respondent, First Class Collision, whose owner the Petitioner's husband apparently knew. According to the Petitioner, she learned that the Respondent provided her husband with a "verbal" estimate of $7,000 to repair the vehicle. She then states that the estimate was reduced to $5,000. The Petitioner claims she told the Respondent, "Greg" that she could not afford to pay $5,000 to repair the vehicle and asked him to get "used" parts to reduce the cost. The Petitioner contends that the Respondent offered to buy the vehicle for $500 although it is valued at $9,000 and when she refused, the Notice of Lien was sent.
The Respondent, Greg Sbrocchi, a member of the First Class Collision, LLC submits an Affidavit opposing the Petitioner's application. In his Affidavit, Mr. Sbrocchi states that the Petitioner's husband came to his office on or about April 24, 2010 and requested that he pick up the car. He arranged for the car to be towed to his shop for an estimate. Mr. Sbrocchi then states that Mr. Wood came to his shop the next day, which would have been April 25, 2010 and signed a written authorization, which he attached to his Cross-motion as Exhibit A. Mr. Sbrocchi further claims that on May 1, 2010, Mr. Wood came back to his shop and was provided a written estimate for repairs, which is attached to the Cross-motion as Exhibit B. Mr. Sbrocchi states in his Affidavit that on May 8, 2010, the Petitioner came to his shop and told him that she did not have insurance coverage and would not pay for the repairs and asked that the car be towed to her house. He indicates that he told her that she would have to pay for the towing and storage charges referred to in Exhibit B. Mr. Sbrocchi claims that the Petitioner eventually refused to pay the towing and storage charges which resulted in the Notice of Lien being served.
Pursuant to Lien Law § 184 (1), a garage keeper who tows, stores, repairs, maintains or otherwise furnishes services or supplies to a motor vehicle, at the request or with the consent of the owner, has a lien upon such vehicle to the extent of the sum due for the services performed. A garage keeper may maintain a lien against a vehicle where the garage keeper performed garage services or stored the vehicle with the owners consent for an agreed upon price or, in the absence of an agreement, for a reasonable price. General Motors Acceptance Corp. v. Anthony J. Minervini, Inc., 301 A.D.2d 940 (3d Dept. 2003). Under Article 12-A of the Vehicle and Traffic Law, the garage must be a duly registered motor vehicle shop.
§ 184 of the Lien Law, which is in derogation of common law, must be strictly construed. Phillps v. Catania, 155 A.D.2d 866 (4th Dept. 1989). It is the garage keeper's burden to establish that it has performed garage services or stored the vehicle with the owner's consent. National Union Fire Ins. Co. of Pittsburg, Pa. v. Eland Motor Car Co., Inc., 85 N.Y.2d (1995), clarification denied 87 N.Y.2d 1002 (1996).
A lien is specific to the vehicle upon which repairs were made ( National Union Fire Ins. Co. of Pittsburg, Pa. v. Eland Motor Car Co., Inc., supra at p. 730) and an estimate of repairs does not create a lien ( Mercedes-Benz Credit Corp. v. One Stop Auto Truck Ctrs., 170 Misc2d 354, 650 N.Y.S.2d 913 [Supreme Nassau Co. 1996]). Moreover, storage fees must specifically be authorized in order to be included as part of a lien on the vehicle. Where a garage keeper claims more than is actually due, he or she is guilty of conversion and liable to the owner in damages. BMW Bank of N. Am. v. GB Collision Ctr., Inc., 46 A.D.3d 875 (2d Dept. 2007); F N Corvette Classics v. Corvette Repairs, Inc., 206 A.D.2d 349 (2d Dept. 1994).
A vehicle owner faced with a garage keeper's lien on his car may commence a special proceeding under Lien Law § 201-a to challenge the validity of the lien. The section provides, in pertinent part:
[i]f the owner or any such person shall show that the lienor is not entitled to claim a lien in the property, or that all or part of the amount claimed by the lienor has not been properly charged to the account of such owner or such person, or, as the case may be that all or part of such amount exceeds the fair and reasonable value of the services performed by the lienor, the court shall direct the entry of judgment cancelling the lien or reducing the amount claimed thereunder accordingly. If the lienor shall establish the validity of the lien in whole or in part, the judgment shall fix the amount thereof and shall provide that the sale may proceed upon the expiration of five days after service of a copy of the judgment together with notice of entry thereof upon the owner or such person unless the property is redeemed prior thereto pursuant to section two hundred three of this article. If the lien is cancelled, the judgment shall provide that, upon service of a copy of the judgment together with notice of entry thereof upon the lienor, the owner or such person shall be entitled to possession of the property.
It is the Court's responsibility, therefore, to determine the reasonableness of the amount claimed in the lien. Munro v. Autosports Designs, Inc., 185 Misc. 2d 821, 714 N.Y.S. 2d 415 (Supreme Nassau Co. 2000). Refusal to release property based on the improper assertion of a lien can give rise to a cause of action for conversion. Grant Street Canst., Inc. v. Cortland Paving Company, Inc., 55 A.D.3d 1106 (3d Dept. 2008).
Reviewing the Respondent, Greg Sbrocchi's Affidavit and examining the exhibits attached to the Respondents' Cross-motion lead the Court to conclude that the Petitioner never received the authorization (Exhibit A) or estimate (Exhibit B). Specifically, the Respondent claims to have obtained the Petitioner's husband's signature on the authorization on April 25, 2010. However, Exhibit A contains storage charges from April 24, 2010 to June 9, 2010. Mr. Sbrocchi's statement and the Exhibit are inconsistent. Additionally, the Estimate (Exhibit B) is dated July 12, 2010. As such, it could not have been provided to the Petitioner's husband on May 1, 2010. These exhibits establish that the statements made by Mr. Sbrocchi in his Affidavit are not credible. As such, the Court finds that the Respondents have not established that the storage charges were authorized and the Lien is improper.
Accordingly, it is hereby
ORDERED, that the Petitioner is hereby directed to remit to the Respondent, First Class Collision, through its counsel, the sum of $155.00, the cost of the towing, by money order or bank check, within seven (7) days of the date a copy of this Order is served on the Petitioner; and it is further
ORDERED, that the Petitioner shall remove her vehicle from the Respondents' location within 24 hours of having delivered the aforementioned payment to the Respondents' counsel; and it is further
ORDERED, that the Respondent's counsel shall serve a copy of this Order upon the Petitioner by certified mail, return receipt requested and by regular mail within ten (10) days of the date of this Order; and it is further
ORDERED, that in the event the Petitioner does not remit the aforementioned sum within seven (7) days from the date a copy of this Order is served on her pursuant to this Order or fails to remove the vehicle within 24 hours of remitting the payment, the Respondent may commence charging the Petitioner the sum of $50 per day for the storage of the Petitioner's vehicle; and it is further
ORDERED, that upon receipt of the Petitioner's remittance, the Respondents' counsel shall direct the Respondent to release the Petitioner's vehicle to her; and it is further
ORDERED, upon the parties' compliance with this Order, the Notice of Lien and Sale shall be lifted.
All applications not specifically addressed are DENIED.
This decision constitutes the order of the court.