TOWING CORP v. WALTERS (2019)

ORDERED that the judgment is modified by providing that plaintiff's cause of action is dismissed; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this commercial claims action to recover the principal sum of $ 1,581.04 for the storage of defendant's vehicle after it had been towed to plaintiff's garage. Defendant interposed a counterclaim to recover the sum of $ 2,091.60, for, among other things, the salvage value of her car.

At a nonjury trial, plaintiff's president testified that, on September 13, 2016, after defendant had been involved in an accident, the police had called plaintiff to tow defendant's vehicle to plaintiff's garage. Plaintiff charged defendant a towing fee as well as daily storage charges. On September 27, 2016, defendant signed a bill drafted by plaintiff in which she agreed to pay the accrued charges of $ 543.13. Defendant testified that, on September 27, 2016, after she had agreed to pay what she owed for towing and storage to date, she demanded the return of her vehicle but plaintiff's employees refused and plaintiff subsequently continued charging her for storage. Defendant further testified that throughout the next few months, she made multiple demands for the return of her vehicle. However, plaintiff's employees refused on the ground that until defendant paid what was owed for storage at $ 20 per day, they were not required to return the vehicle. By November 2016, plaintiff had been paid, by a third-party insurer, a sum in excess of the $ 543.13 that had been billed on September 27, 2016 for the towing and storage of the vehicle. In February 2017, defendant's vehicle was towed away after it had been designated an abandoned vehicle. Following the trial, the City Court awarded plaintiff the principal sum of $ 1,581.04 and dismissed the counterclaim.

In a commercial claims action, our review is limited to a determination of whether “substantial justice has ․ been done between the parties according to the rules and principles of substantive law” (UCCA 1807-A [a]; see UCCA 1804-A; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]).

Lien Law § 184 (2) allows a person who tows a vehicle at the request of a police agency a lien for reasonable costs of such towing and storage so long as the person complies with certain notice requirements. Here, there was no evidence that plaintiff had complied with the notice requirements. Thus, plaintiff did not establish that it had a valid lien for storage fees and is not entitled to recover for storage in the absence of a specific agreement therefor (see Phillips v. Catania, 155 AD2d 866 [1989]). While defendant agreed to pay plaintiff $ 543.13 for towing and storage through September 27, 2016, defendant never agreed to pay for storage fees after September 27, 2016, the date defendant demanded the return of her vehicle. Consequently, plaintiff has failed to establish any basis to recover storage fees beyond that date (see Phillips v. Catania, 155 AD2d 866). As plaintiff was paid by the third-party insurer an amount in excess of the $ 543.13 that defendant agreed was owed as of September 27, 2016, the court erred in awarding plaintiff any additional sum.

We note that, with respect to defendant's counterclaim, based apparently on a theory of conversion (see Phillips v. Catania, 155 AD2d 866), the court properly dismissed the counterclaim because defendant failed to submit any evidence as to the vehicle's value.

Accordingly, substantial justice requires that the judgment be modified by providing that plaintiff's cause of action is dismissed.

TOLBERT, J.P., RUDERMAN and EMERSON, JJ., concur.