Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 9, 2009.
Rodriguez v AAA Veterinary Clinic, P.C.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 14, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $900.
ORDERED that the judgment is reversed, without costs, and the action is dismissed.
Plaintiff commenced this small claims action to recover damages which allegedly resulted from his boarding his eight-month-old Rottweiller at defendant's facility. At the non-jury trial, plaintiff testified that he had boarded his dog, Chopper, at defendant's facility while he had gone on a week-long vacation. When he picked up Chopper, whom he personally had trained, the dog was "filthy" and acted strangely, and his leash and collar were missing. In addition, plaintiff's oak table, which had been inside Chopper's cage, was damaged. After plaintiff brought him home, Chopper was uncontrollable for several months, despite the prior training, and ultimately, seven months later, had to be euthanized. Plaintiff testified that he thought that defendant had kept Chopper in a cage in "solitary confinement" and had not exercised or walked him. Defendant's witness testified that Chopper was a young "active" dog and that Chopper was biting on the oak table in his cage because he was a puppy and needed something to chew on. The witness also testified that it was defendant's practice to walk its boarded dogs two to three times per day. The Civil Court awarded plaintiff the principal sum of $900, and defendant appeals.
Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 ; Williams v Roper, 269 AD2d 125, 126 ).
Where a bailment is for the mutual benefit of both parties, the bailee is required to exercise reasonable care and diligence in keeping and safeguarding the bailor's property, and the bailee is answerable for loss or injury resulting from his or her ordinary negligence (see 9 NY Jur 2d, Bailments and Chattel Leases § 60). If a bailee fails to return a bailor's property or returns the property in a damaged condition, there is a presumption of liability for negligence, and the burden then shifts to the bailee to explain the circumstances of the loss (see 9 NY Jur 2d, Bailments and Chattel Leases § 117). The defense witness adequately explained the reason for the damage to the oak table, and plaintiff failed to show any lack of reasonable care on defendant's part as would subject it to liability for this damage. With respect to Chopper, plaintiff failed to establish a prima facie case of liability on the part of defendant since, aside from his speculative testimony, he failed to proffer any additional evidence to support his contention that Chopper had suffered injuries as a result of defendant's negligence during the period of time that Chopper had been boarded at defendant's facility.
Plaintiff's remaining contentions are without merit. Accordingly, the judgment is reversed and the action is dismissed.
Pesce, P.J., Golia and Steinhardt, ...