Eghosa H. Osaretin, Plaintiff, v. Silver Peak Auto Repair Corp., Defendant. (2026)

At first blush, this appears to be a straightforward replevin action in which plaintiff seeks to recover possession of the vehicle he owns. However, at trial, which included video evidence showing a white cat lounging on a piece of cardboard under the propped-up hood of a blue 2011 Ford Escape, this case proved to be much more complicated than it first seemed. The principal issue here is whether a prior small claims proceeding between the parties in which plaintiff failed to prove, inter alia, property damage to the vehicle, prevents plaintiff from prevailing in this action under the doctrine of res judicata. For the reasons that follow, the Court finds that it does not bar recovery of the vehicle, but it does limit that recovery to the vehicle in the condition it was in as of the date of the prior small claims trial.

At the bench trial held in this matter on March 26, 2026, plaintiff appeared pro se and the defendant appeared by counsel Angel Velez, Esq. Plaintiff testified in the narrative, admitted seven documents into evidence and played two videos which the court viewed and summarized for the record (FTR: 2:36 PM to 4:13 PM). Plaintiff did not call any additional witnesses, defense counsel did not call any witnesses, nor did the defendant admit any documents into evidence.

The Court notes that when this case was called for trial, defense counsel requested an adjournment because his client was unavailable to appear in-person and testify in this matter. The Court denied that application, noting that March 26, 2026 was the second date the case had been on the court's calendar for trial. Pursuant to an Order dated October 22, 2025, the case was first calendared for an in-person bench trial on February 5, 2026 and marked FINAL. The trial scheduled for February 5, 2026 was adjourned upon defendant's application because his client was also unavailable on that date as well (see February 5, 2026 Order). The February 5, 2026 Order marked this case FINAL twice, and given that procedural history, this Court denied defense counsel's belated adjournment request.

After hearing the testimony of the witnesses and reviewing the admitted evidence, the Court makes the following findings of fact and conclusions of law:

I. FINDINGS OF FACT

Plaintiff commenced this action for replevin by filing a complaint on May 13, 2025. Plaintiff testified that he was and still is the owner of a 2011 Ford Escape with Vehicle Identification Number ("VIN") 1FMCUODG6BKA03013. Plaintiff admitted into evidence a copy of a New Jersey Motor Vehicle Registration Card "GOOD THRU: Apr 2025" for the vehicle listing him as the registered owner (Plaintiff's Exhibit 1). Plaintiff also admitted into evidence an original copy of Title to the vehicle issued by the State of New Jersey Motor Vehicle Commission on April 6, 2022 (Plaintiff's Exhibit 2).

In his complaint, plaintiff alleges that the defendant wrongfully retained the vehicle and has not returned it to plaintiff despite due demand. No dates for the detention or the demand were specified. At trial, plaintiff testified that he took the vehicle to defendant's repair shop on July 8, 2024 for maintenance and light repairs. When plaintiff returned shortly thereafter, he was told by defendant's employees that they were busy, and plaintiff was directed to return the next day to pick up the vehicle. The next day, plaintiff observed that the engine was missing from the vehicle. Defendant's employees indicated the vehicle was not ready for pickup and plaintiff was instructed to return the following day. According to plaintiff, this went on for several days, with plaintiff unable to retrieve his vehicle. The Court generally found plaintiff to be credible.

In its answer, asserted by an individual on behalf of the corporate defendant whose name is illegible, said individual writes: "The vehicle was still left abandon on my property from 12/09/24 when the claim on Index # SC-001353-24/BX was dismissed in my favor accounting storage fees until I received decision dated May 6th 2025." Defendant asserts a counterclaim for $12,395 which is labeled as "Motor Vehicle Storage Fees. 137 days at $85 per day."

Before this action was commenced, plaintiff filed a small claims proceeding, also in this court, against the defendant on August 2, 2024 (Index Number SC-001353-24). In the small claims proceeding, plaintiff sued the defendant to recover $8,500 for "Damage caused to: automobile" on July 8, 2024. On November 1, 2024, defendant filed a counterclaim against the plaintiff for $9,875 for "Motor Vehicle Storage". Both sides appeared for trial on November 20, 2024. In a Report of Arbitration dated November 20, 2024, and incorrectly filled out by the Arbitrator as being made after an inquest rather than an arbitration, the Arbitrator wrote:

"Claimant failed to establish that defendant caused any damage to automobile; breached any contract; or failed to provide any contracted or paid for services. On counterclaim, defendant failed to establish compliance with notice requirements under 15 NYCRR 82.8 for storage fees, insofar as defendant did not provide claimant with notice in writing of storage fees" (the "Award").

At the trial in this action, plaintiff admitted into evidence two videos that plaintiff took in February and March 2025 of the vehicle which was located on defendant's premises. These videos depict him walking around the vehicle and opening the doors to the vehicle, which revealed that it was filled with boxes of miscellaneous items as if used for storage. Plaintiff also showed what was under the front hood of the vehicle. In the first video, there was a piece of cardboard, and one or more components of the vehicle which should be under the hood appeared to be missing. In the second video, the car appeared similarly, except now there was a white cat sitting on top of the cardboard under the front hood of the vehicle which was partially propped open. Plaintiff also admitted into evidence photos of the vehicle taken before the defendant took possession (Plaintiff's Exhibits 4 and 5) in which the vehicle appears to be in good condition.

As for damages, plaintiff claims the vehicle is worth $8,000 and admitted into evidence an Invoice dated January 10, 2022 for the vehicle with a purchase price of $8,500 which plaintiff paid to Imaria Deba Auto LLC, located in Marietta, Georgia (Plaintiff's Exhibit 3). No other proof of the value of the vehicle was offered into evidence.

In addition to return of the vehicle, plaintiff seeks additional damages in the amount of $33,000. At trial, he testified that he was an Uber driver, and that due to the defendant's wrongful retention of his vehicle, he was unable to drive for Uber and thus suffered lost income. According to plaintiff, he was unable to purchase a replacement vehicle due to this finances, and thus he only worked his other full-time job as a security guard. Plaintiff admitted into evidence a tax summary from Uber for the month of March 2024 which showed that plaintiff completed 232 trips and earned income of $2,358.99 for that month (Plaintiff's Exhibit 6).

Finally, plaintiff admitted into evidence his 2024 Income Tax Return which showed that he earned $24,234 for operating a Taxi and Limousine Service that year, with reported business expenses of $25,861, for a net annual loss of $1,627. Specifically, plaintiff's expenses are as follows: $6,761 for uber service fees, $8 for a booking fee, $881 for airport fees, $107 for instant pay charges, $1,023 for tolls, $7,033 for fuel, $5,032 for insurance (other than health) and $5,016 for repairs and maintenance.

II. CONCLUSIONS OF LAW

To state a cause of action for replevin, plaintiff must establish a superior possessory right to property which is currently in defendant's possession (Reif v Nagy, 175 AD3d 107 [1st Dept 2019] citing Pivar v Graduate School of Figurative Art of NY Academy of Art, 290 AD2d 212, 213 [1st Dept 2002]). Although plaintiff is the undisputed owner of the vehicle, the court must address what effect, if any, the small claims action has on the outcome of this action.

Defense counsel argued shortly before the trial commenced that this action was barred by the doctrine of res judicata.¹ At that time, the court reviewed the pleadings in both actions and given that no formal motion had been made prior to the eve of trial, the court denied defense counsel's oral application to dismiss (3:08pm) and the trial went forward. However, after hearing all the testimony and evidence, the Court finds that plaintiff is only entitled to a judgment of possession of the vehicle for the reasons that follow.

Res judicata

The doctrine of res judicata provides that "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Singleton Management, Inc. v Compere, 243 AD2d 213 [1st Dept 1998] quoting Gramatan Home v Lopez, 46 NY2d 481, 485 [1979]). In other words, res judicata generally precludes relitigation of claims resolved in a prior proceeding between the same parties (Fusco v Kraumlap Realty Corp., 1 AD3d 189 [1st Dept 2003]). As is relevant here, a small claims judgment may preclude subsequent claims between the same adversaries arising out of the same transaction or series of transactions as the prior action (Simmons v Trans Express Inc., 37 NY3d 107 [2021]; cf. NYC Civil Court Act § 1808, Simmons at 116 [as opposed to claim preclusion, small claims judgments do not have an issue-preclusive effect]).

Res judicata is an affirmative defense that is generally waived if not raised in the answer or in a pre-answer motion to dismiss. CPLR 3211 (e). Defendant's answer did not specifically assert res judicata as an affirmative defense. However, it was otherwise sufficient to put the plaintiff on notice that the issue of what effect, if any, the prior small claims proceeding had on this action must be determined (see e.g. Small v Clark, 81 Misc 3d 145[A] [App Term 2d, 11th & 13th Jud Dists 2024]).

Against this backdrop, the Court will overlook the technically defective answer filed by the corporate defendant when it was not represented by an attorney (CPLR 321 [a]), given that the defendant ultimately retained an attorney to represent it in this matter, who argued at trial that the small claims proceeding was res judicata as to this action (see supra footnote 1). Assuming arguendo that the defendant's answer is a nullity and not properly before the court, the Court would still exercise its discretion and consider whether res judicata precludes plaintiff's replevin claim (see Ostatcher v Clark, 238 AD3d 416 [1st Dept 2025] [trial court properly exercised its discretion in finding that genuinely extraordinary circumstances warranted its sua sponte consideration of the doctrine of res judicata]).

Here, the parties to both actions are identical, and the small claims proceeding was finally resolved by a judgment on the merits from a court of competent jurisdiction. Thus, plaintiff cannot relitigate the issue of whether defendant caused damage to the vehicle after defendant took possession of the vehicle on July 8, 2024 and before the date the trial was held in the small claims proceeding, November 20, 2024. However, the Court must determine whether the prior small claims action for property damage to the vehicle precludes plaintiff from suing the defendant in this court for a cause of action for replevin wherein plaintiff seeks to recover possession of the vehicle in its undamaged condition as well as lost profits from defendant's retention of the vehicle.

The small claims action was disposed after an arbitration (improperly labeled an inquest) was held by an Arbitrator wherein plaintiff only sought to recover for "property damage" and did not seek, nor could he obtain in the small claims part, a judgment directing the defendant to return the vehicle. However, plaintiff chose to litigate the underlying dispute in the first instance in the small claims part and thus chose to forgo bringing claims for damages beyond the small claims part's $10,000 jurisdictional limit (see e.g. Chapman v Faustin, 150 AD3d 647 [1st Dept 2017] ["That plaintiffs now seek different damages than sought in the small claims action does not alter this conclusion, as plaintiffs could have pursued all relief in a single action in the Supreme Court, but opted instead to pursue the claim in the Small Claims Part of the Civil Court, where any recovery would be capped at $5,000, 'exclusive of interest and costs' ").

Most importantly, after hearing the testimony and evidence, it is clear to the Court that the property damage claim which plaintiff asserted in the small claims action and the instant claims asserted in this action arose from the same events which began on July 8, 2024. Indeed, plaintiff wants the vehicle returned to him in the condition it was in before he brought it to defendant's repair shop on July 8, 2024.

The Award bars plaintiff from bringing claims which could have been brought in the small claims action (Bayside Gables Homeowners v Azzizi, 76 Misc 3d 7 [App Term 2d, 11th & 13th Jud Dists 2022]). However, plaintiff could not sue for replevin in the small claims part, which can only award a money judgment. Nor does the court agree with defense counsel that plaintiff should be precluded from maintaining the cause of action for replevin simply because it arose from the same transaction as the property damage claim which plaintiff asserted in the small claims proceeding. In this way, the claim for return of the vehicle is sufficiently distinct from the money damages claim for property damage to the vehicle, which would be barred by res judicata (see e.g. Fusco v Kraumlap Realty Corp., 1 AD3d 189 [1st Dept 2003] [a housing court proceeding to restore to possession did not preclude a subsequent claim for damages arising from the allegedly wrongful eviction]).

Plaintiff's damages

Plaintiff admitted that he does not want the vehicle returned in an inoperable condition, but rather, wants it restored to the condition it was in before July 8, 2024, and then returned to him. Plaintiff's demand for the vehicle to be returned to him in the condition before he claimed the defendant damaged it is another attempt to recover for the same property damage he claimed the defendant caused in the small claims proceeding. Thus, res judicata bars the plaintiff's claim to the extent he wants the vehicle repaired/restored to the state it was in prior to July 8, 2024. Similarly, plaintiff could have brought his claim for lost profits in the small claims part as a measure of damages due to the defendant's alleged conduct which began on July 8, 2024. Therefore, that branch of the plaintiff's damages in this action is also barred by res judicata.

Even if plaintiff could maintain his claim for lost income as an element of damages on his action for replevin, the result would not change. A plaintiff who prevails in a replevin action is entitled to damages for the loss of use of the property during the period the property was wrongfully retained (see CPLR 7108 [a]; Franjo Transport, Inc. v B&K Fleet Service, Inc., 226 AD2d 674 [2d Dept 1996]). Lost profits is one measure of loss of use damages if no replacement vehicle can be obtained (Wieler v Town of Osceola, 51 Misc 2d 163 [NY Sup, Lewis Co 1966] aff'd 29 AD2d 737 [4th Dept 1968]).

Here, plaintiff's evidence shows that he would have earned income from operating the vehicle as an Uber driver. However, that income must be calculated against the expenses he would have incurred had he operated that business, which according to plaintiff's 2024 tax return, would result in a net loss. The Court also notes that plaintiff only submitted proof of his income during 2023 and March 2024. Given that plaintiff brought his vehicle to defendant's repair shop in July 2024 for repairs, and no proof of income was provided from operating the vehicle as an Uber driver for three months prior to when defendant took possession of the vehicle, plaintiff has not established through non-speculative proof that he would have realized any business income had the defendant not retained possession of the vehicle after July 8, 2024 (Zink v Mark Goodson Productions, Inc., 261 AD2d 105 [1st Dept 1999]). For all these reasons, plaintiff's claim for lost income is rejected.

Since plaintiff has only proven that he is entitled to return of the vehicle, and defense counsel offered to have defendant return the vehicle to plaintiff at trial, the court will allow the defendant 30 days to return the vehicle, which must occur within 60 days of entry of this order (unless the parties mutually agree to extend these deadlines). The defendant must provide plaintiff with 10-days advance notice specifying the date and time for plaintiff to pick up the vehicle. The pickup must occur during normal business hours (9am-5pm) from Monday through Friday, excluding holidays.

In the event that the defendant does not comply with this Order, the court will grant plaintiff an Order of Seizure upon an appropriate application brought by order to show cause.

Post-trial hearing

The Court notes that while plaintiff testified as to the value of the vehicle when he purchased it, no evidence was presented of the vehicle's value at the time of trial, thus precluding a judgment of possession on this record (see e.g. Walden v Vera's Auto Body Service, 94 Misc 2d 792 [Civ Ct, Kings Co 1978]). Further, since the court has failed to set an alternative money judgment in favor of plaintiff, who was not in possession of the vehicle as of the date of the trial, either party may move for a hearing to determine the value of the vehicle at the time of trial within 75 days (which would give the parties 15 days to request the hearing after expiration of the 60 days the Court has given defendant to return the vehicle to plaintiff). CPLR 7108 (c).

At that hearing, plaintiff may also present evidence and testimony regarding the present condition of the vehicle, and any monies for property damage to the vehicle plaintiff may be entitled to recover which arose after November 20, 2024, the date of the trial in the small claims proceeding. On this point, the Court notes that the record includes video evidence of the condition of the vehicle in February and March 2025, which at minimum provides a baseline for the condition of the vehicle after the small claims proceeding was disposed.

Defendant's counterclaim

The court must also resolve defendant's pending counterclaim. Defendant did not call any witnesses, submit any evidence, or elicit sufficient facts during plaintiff's case to support the counterclaim. Although a garageman is entitled to assert a lien for unpaid fees in connection with work done and storage under Lien Law 184, there is insufficient evidence in the record to substantiate the defendant's counterclaim. Moreover, just as res judicata applied to plaintiff's claims, so too would it apply to any claimed lien which defendant would assert for storage of the vehicle between July 8, 2024 and November 20, 2024. Accordingly, plaintiff is entitled to judgment in his favor on defendant's counterclaim.

III. CONCLUSION

In accordance herewith, it is hereby

ORDERED that plaintiff is entitled to a judgment of possession of the 2011 Ford Escape with VIN 1FMCUODG6BKA03013 in his favor and against the defendant; and it is further

ORDERED that the court will allow defendant to return the 2011 Ford Escape with VIN 1FMCUODG6BKA03013 as follows:

[1] Within 30 days from entry of this decision and order, the defendant must give plaintiff 10-days advance notice of the scheduled date and time for plaintiff to pick up the vehicle during normal business hours (9am-5pm) from Monday through Friday excluding holidays; and

[2] The pickup must take place within 60 days of this order, unless the parties agree to extend the time to do so; and it is further

ORDERED that in the event that the defendant does not comply with this Order and/or return the vehicle at all, the court will grant plaintiff an Order of Seizure upon an appropriate application brought by order to show cause; and it is further

ORDERED that either party may move for a hearing to determine the value of the vehicle at the time of trial, and to assess supplemental property damages arising after November 20, 2024, within 75 days (15 days after expiration of the 60-day deadline for defendant to return the vehicle); and it is further

ORDERED that plaintiff is entitled to judgment dismissing defendant's counterclaim; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

The court will mail plaintiff's exhibits back to him at the address listed in the court file.

Dated: 5/28/2026

Bronx, New York

Hon. Eric J. Wursthorn, J.C.C.

FOOTNOTES

1.   Shortly before the trial commenced, (3:08 PM), defense counsel conceded that res judicata did not bar plaintiff's claim, however, defense counsel still maintained that plaintiff should not be able to recover the value of the vehicle because he should have brought that claim in small claims court.

Eric J. Wursthorn, J.