[*1]
Davis v All County Hook up Towing
2009 NY Slip Op 50873(U) [23 Misc 3d 1120(A)]
Decided on April 20, 2009
Nassau Dist Ct
Bruno, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 20, 2009
Nassau Dist Ct


Sean Davis, Plaintiff,

against

All County Hook up Towing, Defendant.




NSC 1084/08



REPRESENTATION:

Daniel Friedman, Esq., 11 Sunrise Plaza, Valley Stream, NY 11580, Attorney for Plaintiff

All County Hook Up Towing, 4378 Austin Boulevard, Island Park, NY 11558, Pro Se

Robert A. Bruno, J.

DECISION AFTER HEARING

Plaintiff commenced this Small Claims action against the defendant, to recover the sum of two thousand sixty-three dollars and ninety-seven ($2,063.97) cents, representing the amount of money plaintiff paid to the defendant in order for the defendant to release the car that the defendant previously towed and impounded.

On or about August 8, 2008, the plaintiff was operating a 2007 M35 Infinity ("Infinity") which was owned by Barry Feldman. For reasons not explained fully to the Court, the plaintiff was stopped by the Nassau County Police and the Infinity was towed and impounded by the defendant. (See plaintiff's Exhibit 3.)

It is undisputed that on August 8, 2008 the defendant towed and impounded the Infinity (see Plaintiff's Exhibits 1 and 2). It is also undisputed that the plaintiff paid the defendant the sum of two thousand sixty-three dollars and ninety-seven ($2,063.97) cents representing seventy-five ($75.00) dollars for towing and one thousand eight hundred twenty-five ($1,825.00) dollars for storage and one hundred sixty-three dollars and ninety-seven ($163.97) cents for tax.

The parties further acknowledge that the Infinity remained in the possession of the defendant from August 8, 2008 through October 20, 2008 for a total of seventy-three (73) days at a rate of twenty-five ($25.00) dollars per day (plaintiff's Exhibit 1).

The plaintiff testified, that despite numerous attempts, telephone calls to the Nassau County Police and DA's office, on his part and his attorney's part, they were unable to locate the Infinity until the plaintiff was notified on or about October 20, 2008 that the Infinity was in the possession of the defendant. [*2]

When the Court questioned the defendant as to why it took two (2) months to notify the plaintiff that the Infinity was impounded, the defendant's response was that it is not obligated to send any notices out and no further explanation was given[FN1].

For reasons, not fully explained satisfactorily to the Court, the defendant sent a notice to the plaintiff on or about September 29, 2008 (plaintiff's Exhibit 2) advising that it had possession of the Infinity. Also, for reasons not fully explained to the Court, the notice sent to the plaintiff on or about September 29, 2008, is dated October 20, 2008. The defendant testified further that it did not undertake any investigation to determine who was the record owner of the Infinity or whether the record owner of the Infinity ever received any notice that the Infinity was impounded[FN2].

The defendant also testified that pursuant to its alleged Contract with the County, the defendant is only entitled to retain the seventy-five ($75.00) dollars for towing and all of the storage fees are remitted to the County. Notwithstanding the foregoing, the defendant did not produce the alleged Contract with the County that allegedly permits it to collect fees, nor did the defendant produce an invoice from the County, a receipt or a cancelled check to substantiate that it remitted any money to the County. In short, the defendant did not produce any documentation to substantiate [*3]it had a Contract with the County or was permitted to charge the plaintiff any amount for the towing or storage of the Infinity. This Court, in the absence of any evidence to the contrary, does not find the defendant's testimony credible regarding the remittance of storage fees it allegedly paid to the County.

Based upon the credible testimony of the plaintiff, it appears the plaintiff acted in good faith and due diligence to try to locate the Infinity. On the other hand, it appears the defendant made little, if any, effort to notify the owner of the Infinity. In the absence of any reasonable or logical explanation from the defendant as to why it waited over two (2) months to send plaintiff notification regarding the Infinity or any proof that the defendant has a Contract or license[FN3] to permit it to tow and store vehicles and charge for same, the Court finds that substantial justice requires that plaintiff recover from the defendant two thousand sixty-three dollars and ninety-seven ($2,063.97) cents that it previously paid for the release of the Infinity.

Accordingly, plaintiff is awarded the sum of two thousand sixty-three dollars and ninety-seven ($2,063.97) cents.

SO ORDERED. [*4]

DISTRICT COURT JUDGE

Dated: April 20, 2009

cc:Daniel Friedman, Esq.

All County Hook Up Towing

Footnotes


Footnote 1: Although not raised at trial, the Court notes that Lien Law §184 (2) provides that in order for a person to have a lien on a motor vehicle for the cost of storage, notice that the motor vehicle is being stored must be provided to the owner. Lien Law §184 (2) states in relevant part;

2. A person who tows and stores a motor vehicle at the request of a law enforcement officer authorized to remove such motor vehicle shall be entitled to a lien for the reasonable costs of such towing and storage, provided that such person, within five working days from the initial towing, mails to the owner of said motor vehicle a notice by certified mail return receipt requested that contains the name of the person who towed and is storing said motor vehicle, the amount that is being claimed for such towing and storage, and the address and times at which said motor vehicle may be recovered. Such notice shall further state that the person mailing said notice claims a lien on said motor vehicle and that said motor vehicle shall be released to the owner thereof or his or her lawfully designated representative upon full payment of all charges accrued to the date that said motor vehicle is released. A person who mails the foregoing notice within said five day period shall be entitled to a lien for storage from and after the date of initial towing, but a person who fails to mail such notice within said five day period shall only be entitled to a lien for storage from and after the date that the notice was mailed. A failure to mail such notice in a timely fashion shall not affect a lien for towing.

Footnote 2: Plaintiff's Exhibit 3 is an affidavit ("Affidavit") of Barry Feldman, who was the owner of the Infinity when it was impounded. The Affidavit states that Mr. Feldman was never notified that the Infinity was impounded. The Affidavit was admitted into evidence without objection.

Footnote 3: Although not raised at trial, the Court notes that the defendant's place of business is located in the Town of Hempstead. In this regard, the Court has taken judicial notice of the Code for the Town of Hempstead, specifically §183-2 and §183-17 which provides in relevant part:

§183-2. Owner's license required.

A.It shall be unlawful for any person to operate, store or use any tow car/tow truck owned or controlled by him or permit the same to be operated, stored or used in the town without having first obtained and then having in force a current valid owner's license therefor, as hereinafter provided.

B.It shall be unlawful for any owner of any tow car/tow truck to permit the same to be operated, stored or used in the town by any person not in possession of current valid town tow car/tow truck driver's license.

§183-17. Driver's license required; issuance and expiration; application; investigation of applicant; basis for issuance of license; transferability.

Owner's license required.

A.It shall be unlawful for any person to operate a tow car for hire in the Town of Hempstead as a driver on or in connection therewith, unless such driver shall have first obtained a license from the Town Clerk, as hereinafter provided.

The defendant offered no documentary or any other credible evidence that it complied with the Code of the Town of Hempstead or any other town or was exempted from compliance.