| Sanchez v 163 Petroleum, LLC |
| 2012 NY Slip Op 52011(U) [37 Misc 3d 132(A)] |
| Decided on October 22, 2012 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of
New York, Bronx County (Nelida Malave-Gonzalez, J.), entered on or about September 9, 2010,
which, sua sponte, dismissed the action at the close of plaintiff's evidence.
Per Curiam.
Order (Nelida Malave-Gonzalez, J.), entered on or about September 9, 2010, reversed, without costs, and new trial ordered.
This small claims action, seeking to recover the amount of cash ($1,127) allegedly contained in a wallet mislaid by plaintiff in defendant's store premises, was erroneously dismissed at the close of plaintiff's case. The court's unexplained dismissal of the action, to the extent it may have been based on a determination that some unspecified defect existed in plaintiff's trial proof, was procedurally flawed since it deprived plaintiff of the opportunity to remedy any perceived evidentiary shortcoming (see Ramsay v Miller, 202 NY 72, 76 [1911]). Nor does the dismissal order fare better from a substantive standpoint. Accepted as true and accorded the benefit of every favorable inference (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), plaintiff's as yet unrebutted account of how he, the only customer then in defendant's store, inadvertently left his wallet on the right side of the counter after paying the cashier, was sufficient to establish prima facie the creation of a gratuitous bailment (see Dolitsky v Dollar Savings Bank, 203 Misc 262 [1952]; see generally Voorhis v Consolidated Rail Corp., 60 NY2d 878 [1983]). In the posture of this appeal, the ends of "substantial justice" (CCA 1807) are best served by requiring defendant to come forward with an explanation — as the witness it produced, but who did not get the chance to testify, apparently was prepared to do — as to whether any of the store employees found the wallet and, if so, the reason(s) why it was not returned to plaintiff when he reported the loss the following day.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
[*2]
Decision Date: October 22, 2012