This decision has been referenced in a table in the New York Supplement.
Plaintiff self represented.
Alan McLaughlin, Harvey Krieger Esq., Merrick, for Defendant.
PHILIP S. STRANIERE, J.
Claimant, Doreen Pietrangelo, commenced this small claims action against the defendant, S & E Customize It Auto Corp., alleging that owing to the failure of the defendant to have flood insurance, claimant was not fully compensated for damage to her vehicle caused by Hurricane/Superstorm Sandy. A trial was held on March 21, 2013. Claimant appeared without counsel. Defendant was represented by an attorney.
Because claimant's husband testified, the court will refer to the claimant in the masculine throughout the decision. He stated that on October 26, 2012, he dropped claimant's 2010 Ford Fusion Hybrid at defendant's motor vehicle repair shop for repairs. While in possession of the defendant Hurricane/Superstorm Sandy hit the New York City area. The insurance carriers for both claimant and defendant place the date of loss as October 29, 2012. Each carrier's letter was addressed to both Doreen Pietrangelo and Robert Pietrangelo, yet only Doreen is listed as claimant in this action and no evidence was presented as to exactly who was the owner of the vehicle.
Claimant stated that when he initially contacted the defendant after the storm about the condition of the car, defendant told him that there appeared to be only minor flood damage, such as wet rugs. Claimant alleges that the defendant indicated it would take care of any repairs that resulted from the water damage.
Defendant placed a claim with its liability carrier, Tower National Insurance Company. Tower disclaimed coverage, citing the following reason: " the property damage was caused by significant flooding on the date of loss and thus an act of nature. As the alleged damage was not caused by our policyholder's negligence, we are denying your claim." It recommended to claimant that his course of action was to notify his own liability carrier.
Claimant asserts he spoke to defendant and defendant indicated that if any damage claim was not covered by claimant's insurance carrier, he would make good on it. Claimant filed a claim with his automobile liability carrier, Safeco Insurance. Safeco declared the vehicle a total loss at $22,156.12 but paid the claimant only $21,156.12 as claimant had a $1,000.00 deductible under the terms of the policy.
Claimant contends that when he asked defendant to reimburse him for the $1,000.00 deductible, defendant refused to pay. Claimant commenced this action alleging that the failure of the defendant to have the appropriate insurance coverage, including flood insurance, constituted negligence of the defendant.
Defendant's witness alleges that the vehicle was stored inside the garage when the storm hit and that the water rose about four feet above ground level. Neither party produced any written agreement setting forth the terms and conditions of the relationship between the parties. Nor was there any testimony as to when the vehicle was delivered to defendant and if the claimant could have removed the vehicle from defendant's repair shop before the storm hit.
Legal Issues Presented:
A. What is the Relationship Between the Parties?
When claimant delivered his vehicle to the defendant to be repaired, a bailment was created [ Burnane v. Poppy's Auto Wreckers,13 Misc.3d 139(A) ]. A bailment involves the delivery of personal property for a particular purpose under an express or implied contract with the understanding that the personal property shall be redelivered to the person delivering it, or kept until it is reclaimed after ...