J.B. v. 110 Auto Body Repair Inc.
| Decision Date | 26 August 2020 |
| Docket Number | CV-009951-20/QU |
| Parties | J.B., Plaintiff(s), v. 110 AUTO BODY REPAIR INC., Defendant(s). |
| Court | New York Civil Court |
Pro Se Plaintiff
Defendant's Counsel: Law Firm of Stephen G. James & Associates, PLLC, 87-66 Sutphin Blvd., Jamaica, New York 11435
A hearing ("Hearing ") was conducted through Skype Business live video by this Court on July 30, 2020 in the Civil Court of the City of New York County of Queens ("court ") on Defendant's OSC seeking the following reliefs ("Reliefs ") through a court order: 1) to vacate the July 2 Decision; 2) to "grant Defendant an extension of time to respond to Plaintiff's Summons and Complaint;" 3) to grant "Defendant a money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs;" and 4) to restore the case to the trial calendar (OSC at 1). Both pro se Plaintiff and Defendant (through its counsel) were physically present in Part CE courtroom of the court and have had the opportunity to present his/her/its own case and challenge the opposing party under oath. Defendant's witness was also present in court. This Court has considered all live testimonies and evidence presented by both parties during the Hearing and motion papers previously submitted by both parties. No opposition was filed by Plaintiff to Defendant's OSC.
According to Defendant's OSC Affirmation in Support, Plaintiff filed a lawsuit ("Prior Proceeding ") against Defendant with separate index number of CV-041259-19/QU on December 3, 2019. According to court case summary ("Prior Proceeding Case Summary ") for the Prior Proceeding, Plaintiff sued Defendant for "replevin" alleging that Defendant "fail[ed] to return property in the amount of $24,144.68 with interest from 11/18/19." Prior Proceeding Case Summary indicated that, on December 5, 2019, Plaintiff filed an order to show cause ("Plaintiff OSC No. 1 "), which was denied due to non-appearance by Plaintiff. (Prior Proceeding Case Summary.) On January 8, 2020, Plaintiff filed another order to show cause ("Plaintiff OSC No. 2 "), which was again denied by the same judge "without opposition" on January 10, 2020 due to the fact that "Plaintiff failed to present any proof of ownership of the vehicle or sufficient evidence to warrant a stay" (See Exhibit B of the OSC).
On June 17, 2020, Plaintiff filed the instant lawsuit under index number CV-009951-20/QU ("Instant Proceeding ") against Defendant for "replevin" alleging that Defendant "fail[ed] to return property in the amount of $24,144.68" in connection with Plaintiff's "2014 Acura vehicle VIN JH4KC1F3XEC004407" ("Vehicle ") (OSC Affirmation in Support at 1). Plaintiff allegedly served her summons and complaint upon Defendant on June 26, 2020 (See Affidavit of Service of Plaintiff OSC No. 4). Defendant had until July 16, 2020 to answer if it was personally served. On June 18, 2020, Plaintiff filed an order to show cause ("Plaintiff OSC No. 3 ") which was subsequently withdrawn. On June 26, 2020, Plaintiff filed the Plaintiff OSC No. 4 to "stay the sale or destruction of the [Vehicle]" (see Plaintiff OSC No. 4), which was signed by the Decision Judge and such matter was adjourned to July 2, 2020 for a hearing. Defendant failed to appear. On July 2, 2020, the Decision Judge rendered the July 2 Decision, which was subsequently amended by the Decision Judge, sua sponte , with the July 6 Amended Decision.
The July 2 Decision ordered that the Vehicle should "be returned forthwith by Defendant 110 Auto Body Repair Inc., and/or his agents [; and that] [a]ny mechanic's lien issued by Defendant [was] hereby lifted and vacated" (July 2 Decision at 1-2). The July 6 Amended Decision ordered that the Vehicle should "be returned forthwith by Defendant 110 Auto Body Repair Inc., and/or his agents [;] [a]ny mechanic's lien issued by Defendant [was] hereby lifted and vacated [; and that] [t]he Sherriff/Marshall [was] authorized to seize the subject vehicle from Defendant or any agent of the Defendant holding the vehicle and immediately return it to the Plaintiff" (July 6 Amended Decision at 1-2). In summary, the Default Judgement ordered the return of the Vehicle to Plaintiff by Defendant either voluntarily or by enforcement and vacated the mechanic's lien imposed on the Vehicle by Defendant.
On July 7, 2020, Defendant filed an order to show cause ("Defendant OSC No. 1 ") seeking an order: 1) to vacate the July 2 Decision; 2) to grant "Defendant a money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs;" and 3) to restore the case to the trial calendar (Defendant OSC No. 1 at 1). The Decision Judge denied Defendant OSC No. 1 for improper form. On July 8, 2020, Defendant filed the OSC, which was signed by the Decision Judge, and the matter was adjourned to July 16, 2020 for a hearing ("July 16 Hearing ").
On July 9, 2020, Plaintiff filed Plaintiff OSC No. 5 seeking the court to "enforce order dated 7/6/2020 and lift stay dated 7/8/2020" (Plaintiff OSC No. 5 at 1). The Decision Judge denied Plaintiff OSC No. 5 and referred the case to the July 16 Hearing. On July 10, 2020, Plaintiff filed Plaintiff OSC No. 6 requesting "court to enforce order dated 7/6/2020 and lift the stay issued on 7/8/2020" (Plaintiff OSC No.6 at 1). A judge denied Plaintiff OSC No. 6 and again referred the case to the July 16 Hearing.
Pursuant to court case summary ("Case Summary ") for the Instant Proceeding and the testimonies from both parties during the Hearing, the July 16 Hearing was conducted by another judge on July 16, 2020. The matter was further adjourned to July 30, 2020 for Plaintiff to file her opposition to the OSC pursuant to such judge. This matter is now before this Court. No opposition has been filed by Plaintiff as of July 30, 2020, the date of the Hearing.
During the Hearing conducted by this Court on July 30, 2020, Plaintiff stated: 1) that she dropped the Vehicle at Defendant's place of business for a free estimate, and upon returning to the repair shop the next day, found the door was closed; 2) that she saw the Vehicle was being repaired the next time she went to the shop; and 3) that she did not authorize the repairs. Plaintiff further requested that this Court enforce the default judgement and direct the return of the Vehicle. In response, Defendant argued: 1) that the Vehicle was repaired; 2) that the insurance company adjuster went to Defendant's shop for inspection of the Vehicle; 3) that the insurance company previously issued a payment check to both Plaintiff and Defendant ("Two-Party Check "); 4) that Plaintiff cancelled the Two-Party Check and instructed the insurance company to issue an one-party check ("One-Party Check ") to Plaintiff only; 5) that Plaintiff cashed the One-Party Check; 6) that Plaintiff tried to renegotiate the repair price but Defendant refused; 7) that it only asked for the payment for the repairs made to the Vehicle; 8) that it obtained a mechanic's lien on the Vehicle; and 9) that this case was never tried on its merits.
When asked the whereabouts of the Vehicle, Defendant responded that it was still at Defendant's shop. Defendant further requested that this Court vacate the default judgement and restore the case to the calendar so that the case could be decided on its merits.
In its OSC, Defendant presented various factual matters and prayed for Reliefs; however, it failed to raise any legal argument as to why this Court should grant the Reliefs requested. In the interest of justice, this Court will address the legal issues de novo .
According to court Papers 2-4, Defendant's OSC was served on Plaintiff and Plaintiff personally appeared at the Hearing. Reliefs sought by the OSC are within the subject matter jurisdiction of the court. CPLR 2221, Motion Affecting Prior Order, states that "(a) [a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that if the order was made upon a default such motion may be made, on notice, to any judge of the court" ( CPLR 2221 [a][1] ). Defendant's OSC sought to vacate the July 2 Decision which was rendered on default. Pursuant to CPLR 2221, this Court has the jurisdiction to hear, consider and rule on the OSC.
Plaintiff OSC No. 4 sought to "stay the sale or destruction of property" (Plaintiff OSC No. 4 at 1). It is unclear from the face of the Plaintiff OSC No. 4 which kind of property Plaintiff was referring to. However, Plaintiff OSC No. 4 affidavit signed by Plaintiff stated that "[she] did not give authorization to the repair shop [and she] just needed a free estimate; [that she] did not give verbal or written permission; [that] [t]he repair shop [had] been holding the car for 8 months and there [was] a lien; [that she had been] pay[ing a] car note of [$]645.95 monthly and [she had been] liv[ing] in the State of Virginia; [and that she had] attached all proof of ownership [of the car]." Based on the copy of the car ownership proof, it appears that the "property" referred to in Plaintiff OSC No. 4 was the Vehicle with a mechanic's lien. As a result, Plaintiff OSC No. 4 essentially sought a stay of a mechanic's lien sale.
Although no party has challenged the subject matter jurisdiction of Plaintiff OSC No. 4, this Court must address this issue in order to decide on Defendant's motion seeking to vacate the default judgement rendered upon Plaintiff OSC No. 4, "since any judgement rendered without subject matter jurisdiction would be void ab initio " ( Maloney v. Rincon , 153 Misc. 2d 162, 581 N.Y.S.2d...
To continue reading
Request your trial