Opinion
2019-172 Q C
03-19-2021
STATE FARM INDEMNITY CO., as Subrogee of Yvonne Severini, Respondent, v. PARKING SYSTEMS VALET SERVICE and Cusimano Russo Funeral Home, Appellants.
Stephen David Fink, Esq., for appellant. Serpe, Andree & Kaufman ( Jonathan H. Kaufman of counsel), for respondent.
Stephen David Fink, Esq., for appellant.
Serpe, Andree & Kaufman ( Jonathan H. Kaufman of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
ORDERED that the judgment is modified by vacating the award against defendant Cusimano Russo Funeral Home and by providing that so much of the complaint as is against that defendant is dismissed; as so modified, the judgment is affirmed, without costs.
In this subrogation action, plaintiff seeks to recover insurance benefits it paid to its subrogor, Yvonne Severini, for damage to Severini's car. Pursuant to a prior order of the Civil Court, plaintiff was granted summary judgment on the issue of liability as against defendant Parking Systems Valet Service (Parking Systems).
At a nonjury trial, it was undisputed that, upon her arrival at defendant Cusimano Russo Funeral Home (funeral home), Severini had given her car keys to a valet parking attendant who was employed by defendant Parking Systems, and that, when she went to retrieve her car, she had observed the valet drive the car twice into a fence, causing damage to her vehicle. Defendants' witness testified that, pursuant to a verbal agreement, upon request and for "a cost," defendant Parking Systems had provided valet parking attendants to work at defendant funeral home during funerals. Defendants' witness also testified that the parking attendants were unsupervised. Following the trial, the Civil Court rendered a verbal decision on the record and awarded damages against both defendants in the principal sum of $4,621.12. On appeal, defendants challenge the judgment based on the court's alleged noncompliance with CPLR 4213 (b). Defendant funeral home also contends that the evidence was insufficient to support a judgment against it.
CPLR 4213 (b) permits oral decisions. While the Civil Court failed to comply with the rule's requirement that the court state the facts it deems essential in its decision, this court has the power to conduct an independent review of the evidence so as to make the requisite findings of fact, its power being as broad as that of the trial court, and to render the judgment it finds warranted by the facts ( see Meghji v Loughlin , 186 AD3d 1675, 1676 [2020] ; Matter of Miller v Hinckley , 176 AD3d 944, 946 [2019] ; Berde v North Shore-Long Is. Jewish Health Sys., Inc. , 162 AD3d 624, 625 [2018] ).
Severini's entrustment of her car keys to the parking attendant created a bailment ( see Chubb & Son v Edelweiss, Inc. , 258 AD2d 345 [1999] ; Chait v Town Hall, LLC , 32 Misc 3d 131[A], 2011 NY Slip Op 51326[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]), and the return of the car to Severini in a damaged condition was the basis for the Civil Court's prior determination that defendant Parking Systems was liable. However, on appeal, defendant funeral home claims that there was no evidence to support a finding of negligence against it.
Where valet parking is provided to an entity by an independent contractor, the entity contracting for the valet parking service cannot entirely displace its obligation to avoid an unreasonable risk of harm ( see Evans v Norecaj , 172 AD3d 576, 577-578 [2019] ; see also Berger v Rokeach , 58 Misc 3d 827, 842 [Sup Ct, Kings County 2017] ; cf. Spadaro v Parking Sys. Plus, Inc. , 113 AD3d 833, 836 [2014] ). However, even assuming that the evidence was sufficient to establish that defendant funeral home breached a duty it owed to its customers by, among other things, failing to ensure that the drivers defendant Parking System provided were competent ( see Evans v Norecaj , 172 AD3d at 577-578 ), to recover from that defendant based upon a theory of negligence, plaintiff was obligated to demonstrate that the funeral home's negligence was a proximate cause of the damage to its subrogor's car ( see Levi v Nardone , 178 AD3d 692, 693 [2019] ), which it failed to do.
While defendant Parking Systems, as bailee, was negligent for the damage to the car, there was no evidence either that defendant funeral home, by act or deed, represented that defendant Parking Systems was its agent, or that Severini believed, or relied upon the belief, that the Parking Systems employee was an agent of defendant funeral home when she turned her car keys over to the Parking Systems employee. Plaintiff's argument that defendant funeral home was vicariously liable under a theory of respondeat superior depended upon a finding that defendant funeral home had acted as the apparent or ostensible agent of defendant Parking Systems ( see Weiszberger v KCM Therapy , 189 AD3d 1121 [2020] ; see also Taylor v Point at Saranac Lake, Inc. , 135 AD3d 1147, 1148 [2016] ; Begley v City of New York , 111 AD3d 5, 30 [2013] ), which plaintiff failed to establish at trial. Thus, there was no basis to extend defendant Parking System's liability, as a bailee, to defendant funeral home.
Accordingly, the judgment is modified by vacating the award against defendant Cusimano Russo Funeral Home and by providing that so much of the complaint as is against that defendant is dismissed.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.