MARCU v. COMFORT SUITES HOTEL (2018)

ORDERED that the order is affirmed, without costs.

Plaintiffs commenced this action to recover for the theft of their vehicle, while the vehicle had been parked in defendants' hotel guest parking lot, and for their personal items which had been left in the vehicle. Plaintiffs alleged that they had been guests at defendants' hotel and that defendants had failed to provide “a safe environment” and were strictly liable under the common-law doctrine of infra hospitium. Defendants moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), contending that the common-law doctrine upon which plaintiffs relied is inapplicable and that plaintiffs had failed to show any negligence on their part. Plaintiffs submitted unsworn opposition and surreply papers in which they asserted that they were not basing defendants' liability upon a theory of bailment. By order entered July 29, 2016, the Civil Court granted defendants' motion.

“[T]he phrase infra hospitium appears to mean nothing more or less than that the property of the guest is brought within the precincts of the inn;  or, if not actually brought within the four walls, the goods come in the care and under the charge of the innkeeper” (Penchas v Hilton Hotels Corp., 198 A.D.2d 10, 11, 603 N.Y.S.2d 48 [1993] [internal quotation marks and citations omitted];  see Lader v Warsher, 165 Misc 559, 1 N.Y.S.2d 160 [Columbia County Ct. 1937] ). Here, plaintiffs made no showing that their vehicle had been placed within the four walls of the hotel structure or even within defendants' care and under its charge. There were no gates or security at the lot. Plaintiffs retained the keys to the vehicle and did not claim that defendants, in any way, had prevented them from having free access to the vehicle. Indeed, the evidence showed that there were signs in the hotel guest parking lot which stated that the “user assumes all risks.”

Plaintiffs correctly assert that they are not basing defendants' liability upon a theory of bailment, as plaintiffs failed to demonstrate that they had relinquished possession and control of their vehicle to defendants (see Ellish v. Airport Parking Co. of Am., 42 A.D.2d 174, 345 N.Y.S.2d 650 [1973], affd on op below 34 N.Y.2d 882, 359 N.Y.S.2d 280, 316 N.E.2d 715 [1974] ).

Plaintiffs' remaining contentions on appeal are either unpreserved or without merit.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.