Upon the foregoing cited papers, the Decision and Order on plaintiff's notice of motion for summary judgment along with defendant's opposition and plaintiff's reply is decided as follows: Based upon the decision below, plaintiff's motion for summary judgement is granted.

Plaintiff in their summary judgment motion alleged that on June 17, 2022, plaintiff subrogee left her vehicle at Defendant Greenwich Street Garage LLC (herein referred as "Greenwich"), a parking garage, with the attendant defendant Johnny Jean-Charles (Herein referred as "Johnny") and when plaintiff subrogee returned the vehicle sustained damages in the amount $28,193.04. Defendant in opposition submitted the examination before trial (herein referred as "EBT") of a CEO of defendant Greenwich, who was not present during this incident to state that defendant Johhny called him about the incident of June 17, 2022.

The CEO of defendant Greenwich stated that stated that he spoke with defendant Johnny who had not testified, that because of not having the card key or the card key not working, he [*2]placed the vehicle on go-jacks, a device like dolly to move a car when the car slid out of the go-jacks it rolled down the ramp and hit another vehicle.

Summary judgment is the procedural equivalent of a trial and is a drastic remedy which essentially deprives a litigant of his or her day in court and should be employed only when there is no doubt as to the absence of triable issues of fact, or where the issue is even arguable. Andre v Pomeroy, 35 NY2d 361 (1974); Sillman v Twentieth Century- Fox Film Corp. 3 NY2d 395 (1957); Steven v. Parker, 99 AD2d 649 (2d Dept 1984).

Once the movant has made a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial. Zuckerman v City of New York, 49 NY2d 557 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]. Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (Banco Popular N. Am. v Victory Taxi Mgmt., 1 NY3d 381 [2004]).

We first address the issue of whether the defendants' possession of the plaintiff's property, a bailment. A "Bailment does not necessarily and always, though generally, depend upon a contractual relation. It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not". Wikiert v City of New York, 128 AD3d 128 [2d Dept 2015] citing Foulke v New York Cons. R.R. Co., 228 NY 269, 275. Here, plaintiff gave a card key and possession of the vehicle to defendant Johnny, the attendant at defendant Greenwich's parking garage. A bailment relationship was created when plaintiff surrendered the keys and control of his vehicle to defendants' valet parking attendant. See Chait v Town Hall, LLC, 32 Misc 3d 131(A), (App.Term 2d Dept 9th &10th Jud. Dist. 2025); Hoffman v M & C Getty, Inc., 29 Misc 3d 137(A) ), (App.Term 2d Dept 9th &10th Jud. Dist. 2010). When defendants returned plaintiff's vehicle in a damaged condition "a presumption of negligence arises . . . ". Hoffman at 137. Plaintiff's damaged vehicle required repairs in the amount of $28,193.04.

As a result of a bailment being established, a presumption of negligence is created shifting the burden to defendants to show that they were not negligent in causing the damage to plaintiff's vehicle. See Perdomo v 1430 Inwood Ave. Garage, 87 Misc 3d 126(A) (App Term 1st Dept 2025) Defendants failed to submit evidence which would refute that they were not negligent with the possession of plaintiff's vehicle. Defendants in their opposition submitted the EBT of the CEO of defendant Greenwich, who had no personal knowledge of the incident, except for the conversation he had with defendant Johnny. Defendant Greenwich conceded in his EBT that defendant Johnny had placed plaintiff's vehicle on go-jacks when the vehicle slipped off the go-jacks striking another vehicle. In addition, defendants neglected to submit an affidavit from defendant Johnny who defendant Greenwich stated in his EBT was still employed by defendant Greenwich, who might have been in a position to refute the presumption of negligent claim.

In sum, plaintiff established its entitlement to summary judgment and defendants failed to raise an issue of fact to oppose summary judgment.

This constitutes the Order and Decision of the Court.