143 Misc. 2d 350 | N.Y. City Civ. Ct. | 1989
OPINION OF THE COURT
Petitioner correctly brings to the court’s attention that, in its decision dated February 7, 1989, the court did not consider one of petitioner’s arguments in support of canceling respondent’s warehouseman’s lien. Petitioner was a tenant who has
Petitioner has, in timely fashion, commenced a proceeding under UCC 7-211 to determine the validity of the lien. This section, along with its sister section, Lien Law § 201-a, presents a number of unusual problems. First, it does not provide who should be made parties respondent. Although not done here, it is probably better practice to join as respondents both the landlord, as the person on whose account the goods are held, and the warehouseman. Second, the section contemplates a determination only of the validity of the lien. In cases like this one, no lien exists, but there may nevertheless be a sale. In addition, the court should certainly be empowered to review the prerequisite notice or notices and to take proof of the manner in which service was made. Third, the section seems to cast upon respondent the burden of establishing his position; the sale may proceed, it seems, only if "the warehouseman shall establish the validity of the lien”. (UCC 7-211.)
The court will make the best of bad legislation by considering the proceeding as an application to stay the sale of petitioner’s furnishings because the required prerequisites have not been complied with.
As stated above, a sale of the bailed property may take place even in the absence of a lien. Were this not so, a warehouseman receiving from a landlord certain household furnishings of a tenant who had been evicted would be able neither to sell nor otherwise rid himself of the furnishings. UCC 7-206, "Termination of Storage at Warehouseman’s Option”, provides that warehouseman may, on notifying interested parties, require payment of his charges and removal of the stored goods by the end of the agreed storage period or, if
The court concludes that the sale must be stayed. It appears that no section 7-206 notice was ever given, and compliance with many of the requirements with respect to the section 7-210 (2) notification has not been established. Petitioner may claim her furnishings at any time and may take possession of same without being obligated to make any payment to respondent. In order to exercise this right petitioner must remove said furnishings from respondent’s warehouse. If petitioner does not so remove her furnishings, they may be sold in accordance with the procedure described above. If sold, the proceeds must be held by respondent for the benefit of petitioner. Respondent may look only to the landlord for payment of storage charges.
This determination represents a compromise between the requirements of the statute and the realities of the situation in which each of the parties finds himself. A warehouseman cannot be prohibited from selling property of which he cannot