Plaintiff Commonwealth Leasing Inc. commenced the present action by filing a Summons and Complaint on March 13, 2023. Therein, Plaintiff alleged that in or around October or November 2022, Plaintiff purchased two BMW X7 motor vehicles for a total of $202,124 and entered into an agreement with a non-party buyer to sell them overseas for $230,100. In November 2022, Plaintiff transported the vehicles to a storage facility in New Jersey managed by Defendant Marine Transport Logistics Inc. for temporary storage followed by shipment overseas. In or around January 2023, Defendant was forced to relocate the vehicles from New Jersey to a temporary storage lot in Staten Island, New York. On February 3, 2023, the two vehicles were stolen from the temporary lot by an unknown third-party and were never recovered. In its Complaint, Plaintiff asserts four causes of action sounding in breach of contract, breach of fiduciary duty, negligence, and breach of the implied covenant of good faith and fair dealing. Plaintiff alleges that Defendant breached the parties' contract by negligently failing to take reasonable measures to safeguard the vehicles at the temporary lot. Plaintiff seeks judgment in the amount of $230,000 representing the value of the vehicles plus lost profits associated with their intended sale.

On February 9, 2024, Plaintiff filed a motion for summary judgment (Mot Seq. 001) which was denied. The discovery phase of this proceeding ended within the filing of a Note of Issue on May 21, 2024, and the matter was scheduled for trial. A bench trial was commenced and concluded on January 30, 2025. At trial, Plaintiff was represented by Richard Rosenzweig Esq., and Defendant was represented by Gary Pogil Esq. Plaintiff called its manager, Mr. Timour Ebzeev ("Mr. Ebzeev") as its sole witness, and introduced several documents into evidence (Pl. 1-17). Defendant called its Operations Manager, Mr. Zinoviy Vaysburg ("Mr. Vaysburg") as its sole witness, and introduced several documents into evidence (Def. A-F). Written Summations were received by Plaintiff on March 25, 2025, and by Defendant on April 11, 2025.

The elements of a cause of action to recover for breach of contract are the existence of a contract, the plaintiff's performance, the defendant's breach, and damages resulting from the breach. See Pare v. Aalbue, 222 AD3d 769 (2d Dept. 2023). A simple breach of contract should generally not form the basis of a tort action unless it is shown that a legal duty between the parties that is independent of the contract has been violated. See Clark-Fitzpatrick, Inc. v. Long Island R. Co. 70 NY2d 382 (1987). Tort theories of what constitutes "reasonable care" may be relevant to the duty formed by a contractual relationship. See e.g. Borghese v. Redard, 226 AD3d 639 (2d Dept. 2024). However, merely alleging that the breach of contract arose from a lack of reasonable care will not transform a simple breach of contract action into a tort action. See Sommer v. Federal Signal Corp., 79 NY2d 540 (1992); see also Sestito v. David L. Vickers & Sons, 175 AD3d 955 (4th Dept. 2019). Similarly, quasi contractual theories are duplicative if they address the same subject matter as a breach of contract claim. See Crawford v. Integrated Asset Mgt. Servs., LLC, 236 AD3d 750 (2d Dept. 2025).

At trial, Plaintiff's manager, Mr. Timour Ebzeev, credibly testified that Commonwealth Leasing Inc. is a company engaged in the business of selling and leasing luxury vehicles to overseas customers. The evidence offered at trial establishes that in October and November of 2022, Plaintiff purchased two BMW vehicles for $202,124 and delivered them to Defendant's New Jersey facility for storage until they could be shipped overseas. Mr. Ebzeev credibly testified that Plaintiff was familiar with Defendant's services because they had utilized them "over a hundred times over the course of ten years" for similar transactions. Plaintiff entrusted Defendant with the vehicles, as they had in the past, and believed that they would be safely stored in New Jersey until they could be shipped overseas.

The only written document purporting to encompass the terms of the parties' agreement was a one-page Invoice stipulated into evidence on consent of both parties (See Pl Ex.3). However, this document has little to no evidentiary value as Mr. Ebzeev testified that he had never seen it before, and it was not the "actual" contract for this transaction. Rather, Mr. Ebzeev testified that it was an "example" of an Invoice that would typically be provided by Defendant after the vehicles were shipped, but they never were (Tr. 1/30/25, pg. 13). Accordingly, in the absence of a writing, this Court finds that the parties entered into an oral contract for the storage and shipment of the vehicles at issue. It is uncontested that Plaintiff's complied with their duties under the contract. The question at trial is whether Defendant did.

Defendant called its Operational Manager, Mr. Zinoviy Vaysburg, to testify as to the circumstances involving the transfer of the vehicles to Staten Island and their ultimate theft by an unidentified third party. Mr. Vaysburg credibly testified that in or around January 2023 [*2]Defendant was informed that their facility in Bayonne New Jersey had been sold to an investment firm and that they would have to relocate on short notice. While Defendant was initially able to find a substitute facility in Middlesex County, New Jersey, that location lacked the proper certificate of occupancy. Accordingly, Defendant was forced to find a temporary location until the certificate could be corrected. Defendant secured a temporary lot in Staten Island and began the process of transferring vehicles there.

Mr. Vaysburg attempted to establish that Defendant informed Plaintiff that their vehicles were being relocated, but his testimony on the subject was not credible. Mr. Vaysburg testified that Defendant sent out a "mass email" to all its customers informing them of the situation. However, on cross examination Mr. Vaysburg admitted that he never personally saw the email. Moreover, when asked if he could produce a copy of the email, he testified "I am operating manager, I'm not attorney. I'm not supposed to produce anything" (Tr. 1/30/25, Pg. 58). There is no credible evidence in the record to indicate that Defendant took any steps to advise Plaintiff of the situation or that their cars were being relocated. More credible is Mr. Ebeezv's testimony that Plaintiff only became aware that their vehicles were relocated after they were reported stolen.

Mr. Ebeezv credibly testified that he had no concerns regarding security at the New Jersey Facility because it was a secure facility that he had personally inspected. According to Mr. Ebeezv the security features of the New Jersey facility included a building, a lot surrounded by a "high fence" which completely enclosed the property, security guards, video monitoring systems and adequate lighting. Mr. Vaysburg added that the New Jersey Facility also had motion detectors. In contrast, the temporary Staten Island lot was only secured by an incomplete fence that one could simply walk around and a daytime security guard (Tr. 1/30/25 pg. 60). Most significantly, Mr. Vaysburg conceded that since there was no building on the lot, Defendant decided to leave the "key-fobs" for the two vehicles at issue inside their exhaust pipes.

As a preliminary manner, this Court finds that the negligence cause of action asserted by Plaintiff is duplicative of its breach of contract cause of action as there has been no showing of an independent duty between the parties. See Dormitory Auth. v. Samson Constr. Co., 30 NY3d 704 (2018); see also Ho v. Star Contractors, Inc., 226 AD3d 511 (1st Dept. 2024). Plaintiff's causes of action for a breach of the "implied covenant of good faith and fair dealing" and for "breach of fiduciary duty" are also duplicative of the breach of contract claim under the facts presented. See Gutierrez v. Government Empls. Ins. Co., 136 AD3d 975 (2d Dept. 2016); see also Hylan Elec. Contr., Inc. v. MasTec N. Am., Inc. 74 AD3d 1148 (2d Dept. 2010). Accordingly, these causes of action are hereby dismissed as duplicative and unsupported by the trial record. See Koffler v. Cincinnati Ins. Co., 2025 NY Slip Op 03711 (2d Dept. 2025). As such, this Decision will only address Plaintiff's breach of contract claim.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. See Okafor v. Okafor Bldg. Corp., 2025 NY Slip Op 03731 (2d Dept. 2025). The existence of an enforceable oral contract between the parties has not been disputed. Plaintiff established that it had an oral agreement to pay Defendant a sum of money to store the subject vehicles and then ship them to an overseas buyer. As the parties oral contract involved the temporary storage of vehicles, it is in essence a compensated bailment contract. See Burane v. Poppy's Auto Wreckers, 831 N.Y.S.2d [*3]358 (2d Dept. 2006); see also Rodriquez v. Central Parking Sys. Of NY, Inc., 10 Misc 3d 435 (Civ. Ct. NY Cty. 2005).

As a non-gratuitous, compensated, bailee, Defendant was required to exercise "reasonable care" to secure the property entrusted to it, in this case Plaintiff's vehicles. See Geotech Enters., Inc. v. 181 Edgewater, LLC, 192 AD3d 767 (2d Dept. 2021); see also Hunter Trucking Co. v. Glatzer, 285 A.D.314 (1st Dept. 1955); Luna v. Pierro, 2 Misc 3d 1010(a) (Civ. Ct. Qns. Cty. 2004). A compensated bailee is subject to an ordinary negligence standard of care absent an express agreement to the contrary. See Davis v. Lampert Agency, Inc., 30 AD2d 299 (1st Dept. 1968); see also Pietrangelo v. S&E Customize it Auto Corp., 39 Misc 3d 1239 (Civ. Ct. Rich. Cty. 2013). An ordinary negligence standard of care also applies under the UCC when the bailee is a "warehouse" as Plaintiff claims here. See UCC 7-204(a); see also XL Specialty Ins. Co. v. Christie's Fine Art Stor. Servs., Inc., 137 AD3d 563 (1st Dept. 2016). However, a facility temporarily storing items while they await transport, or shipment, is generally not considered a warehouse. See IMB v. Universal Transcon. Corp., 191 AD2d 536 (2d Dept. 1993). Regardless of whether the plaintiff is a "warehouseman" an ordinary negligence standard applies to Defendant's obligation to secure the vehicles at issue as a compensated bailee. See Akinde v. Vernon Manor Coop Section 1, 229 N.Y.S.3d 820 (2d Dept. 2025).

When a third-party criminal act intervenes between a defendant's negligence and the injury suffered by a plaintiff, the casual connection may be severed, precluding liability. See Ingrassia v. Lividkos, 54 AD3d 721 (2d Dept. 2008). An intervening criminal act will be deemed a superseding cause and will serve to relieve the defendant of liability when the act is of such an extraordinary nature or so attenuates a defendant's negligence that responsibility for the injury may not be reasonably attributed to the defendant. See Kush v. Buffalo, 59 NY2d 26 (1983); see also Pavesi v. Carollo, 105 AD2d 832 (2d Dept. 1984). In the context of a bailment contract, proof that the property was stolen from the bailee generally absolves that party from liability unless the bailor can prove that the bailee was negligent in the way it secured the property. See Voorhis v. Consolidated Rail Corp. 60 NY2d 878 (1983); see also Bank of New York v. Colnaghi USA, 220 AD2d 327 (1st Dept. 1995). In other words, if it is established that the goods at issue were stolen by a third party, a plaintiff cannot recover unless he has proven that the loss or theft were the proximate result of either a purposive act or a negligent omission by the bailee. See I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 NY2d 657 (1980); see also Northbrook Property & Casualty Ins. Co. v. D.J.L. Warehouse Corp., 160 AD2d 917 (2d Dept. 1990).

Here, it is undisputed that the vehicles at issue were stolen by a third party. However, Plaintiff successfully established that Defendant breached its contractual duties by not exercising reasonable care in the storage of the vehicles entrusted to it. See Blackman v. Michael Friedman Publishing Group, 201 AD2d 328 (1st Dept. 1994); see also Veihelmann v. Manufacturers Safe Deposit Co., 282 A.D. 653 (1st Dept. 1953). First, this Court finds that Defendant failed to adequately inform Plaintiff that it intended to move the vehicles from a secured facility previously inspected by Plaintiff in New Jersey to an unsecured facility in New York. See e.g. Morrison v. Bramley & Co., 481 N.Y.S.2d 569 (West. Cty. City Ct. 1984). Even considering the "emergency circumstances" faced by Defendant they could have taken reasonable steps to inform Plaintiff as to the security, or lack thereof, in the lot where the vehicles would be stored. If they had, Plaintiff would have had the opportunity to remove their [*4]vehicles if they believed it prudent to do so.

This Court further finds that it was not an exercise of reasonable care to leave the Plaintiff's luxury vehicles on an open field secured only by a daytime security guard and an incomplete fence. This is not the level of security that Plaintiff expected when it elected to secure its vehicles with Defendant. Moreover, this Court finds that Defendant was negligent when it elected to store the vehicles at issue with their key fob's in their exhaust pipes. See Motors Ins. Corp. v. American Garages, Inc., 414 N.Y.S.2d 841 (App. Term, 1st Dept. 1979); see also Albert v. Olympic Parking Serv., 1998 NYLJ LEXIS 2569 (Suffolk Cty. Dist. Ct. 1998). Even in the absence of a building to store the keys, it would have been reasonable and prudent for Defendant to simply remove the keys from the property and store them away from the lot. Rather, they elected to leave the vehicles in a vulnerable condition where they could be easily opened and driven away. As Plaintiff has established that Defendant failed to exercise reasonable care in the storage of the vehicles entrusted to it, Defendant is liable for breach of the bailment contract, despite the third-party theft.

Having found that Defendant is liable for breach of contract, it remains Plaintiff's burden to establish the damages it suffered as a result of the breach. Plaintiff seeks the sum of $207,141 representing the purchase price of the vehicles together with $22,959 in lost profits from its anticipated overseas sale for a total of $230,100. Lost profits are a form of consequential damages and can be recovered if a plaintiff can establish that the profits were foreseeable by the defendant and within the contemplation of the parties at the time the contract was made. See Island Ordnance Sys., LLC v. Amerimex, Inc., 224 AD3d 821 (2d Dept. 2024). Where goods are already under contract for a specified price and awaiting delivery, recovery of the retail price, including the seller's lost profits, is permissible. See Reed v. Cornell Univ., 138 AD3d 816 (2d Dept. 2016). Here, the lost profits were foreseeable and within the contemplation of the parties because Defendant was aware of the nature of Plaintiff's business and that they were shipping the vehicles to an overseas buyer. See Mil-Spec Indus. Corp. v. Expansion Indus., LLC, 201 AD3d 651 (2d Dept. 2022).

For the detailed reasons set forth above, Plaintiffs' breach of contract cause of action against Defendant in the amount of $230,100 is granted. All other causes of action are dismissed. In the event that an application was made before or during trial, and not specifically addressed herein, it is hereby denied. This constitutes the Decision and Order of the Court after trial.