98 Misc. 2d 887 | N.Y. App. Term. | 1979
OPINION OF THE COURT
Judgment entered May 25, 1978 affirmed, with $25 costs upon the well-reasoned opinion of Salman, J., at Trial Term.
The plaintiff is the subrogee of the owner of a 1976 Pontiac automobile. That vehicle was stolen from the defendant’s garage on July 16, 1976 at approximately 4:00 a.m. Immediately prior to the theft the garage attendant had been moving cars in the rear of the garage. He observed two men, carrying what may have been a gun, approaching him from approximately 400 feet away, and fled the garage through a rear door. The keys to the vehicle in question were kept on a pegboard in the garage office, the door of which was not locked. When the attendant returned to the garage about 25 minutes later the subject vehicle had been taken.
The vehicle had been garaged on defendant’s premises under a contract which provided, inter alia, that the defendant did not protect the customer’s car from theft, that the relationship between the garage and the customer was to be considered that of landlord and tenant, not bailor and bailee,
The ordinary relationship between a customer and a garage owner is that of bailor and bailee and certain legal rights and liabilities mark that relationship (25 NY Jur, Garages, §§ 31, 38, pp 130, 131). The burden is always on the customer to prove lack of due care in safeguarding his vehicle in order to recover for its loss. However, upon a mere showing that he delivered the vehicle to the bailee and the failure or refusal of the bailee to return it, the burden of going forward with the evidence shifts to the bailee. If he then shows a reasonable explanation for the failure to return (e.g., as by the intervention of a criminal agency), the customer, to recover, must now show that the negligence of the bailee brought about that occurrence (25 NY Jur, Garages, § 39; Richardson, Evidence [10th ed], § 109; Hogan v O’Brien, 212 App Div 193, 194; Claflin v Meyer, 75 NY 260). But not every parking arrangement gives rise to a bailor-bailee status. The key words are dominion and control by the bailee. Thus in the so-called Airport parking cases, the parker is merely renting space; he is a type of temporary licensee. The mere failure to return his car to him, absent proof of negligence, gives rise to no presumption in his favor (Rembert v Co-op Parking Garage No. 2, 86 Misc 2d 399; Ellish v Airport Parking Co. of Amer., 69 Misc 2d 837, affd 42 AD2d 174, affd without opn 34 NY2d 882; Greene Steel & Wire Co. v Meyers Bros. Operations, 44 Misc 2d 646; Security Mut. Ins. Co. of N. Y. v Airport Parking Co. of Amer., 68 Misc 2d 628; Peralta v Port of N. Y. Auth., 76 Misc 2d 1086, 1087). As noted in a leading case, Osborn v Cline (263 NY 434, 437, 438), "Where a person simply hires a place to put his car or whether he has turned its possession over to the care and custody of another depends on the place, the conditions, and nature of the transaction * * * It all depends upon the facts.”
In the absence of contractual provisions to the contrary, the facts in this case would spell out that type of control by the defendant that points ineluctably to a bailee arrangement.
In the instant case, the court below found negligence from the fact that the keys to plaintiff’s car were left in clear and open view on a pegboard in an unlocked and unattended office, and that finding is fully warranted by the evidence presented. (Arnold v Kensington Plaza Garages, 179 Misc 697, 699; Corrao v Dewey Garage Corp., 24 NYS2d 592.) The case of Jacobs v Alrae Hotel Corp. (4 AD2d 201) cited by the defendant is clearly distinguishable, in that the open safe in that case was not the proximate cause of the loss; the robbers could have forced the hotel keeper to open it, since he was there.
It should further be pointed out that there is nothing magical about the landlord-tenant relationship that negates liability for negligence under all circumstances (cf. Sherman v
Concur: Dudley, P. J., Tierney and Riccobono, JJ.
“No person who * * * maintains * * * a garage * * * may exempt himself from liability for damages for injury to * * * property resulting from the negligence of such person, his agents or employees * * * Any agreement so exempting * * * shall be void.”