Santander Consumer United States, Inc. v. Kobi Auto Collision

• Decision Date: 07 May 2020
• Docket Number: 529330
• Citation: 183 A.D.3d 984,123 N.Y.S.3d 699
• Parties: In the Matter of SANTANDER CONSUMER USA, INC., Respondent, v. KOBI AUTO COLLISION & PAINT CENTER, INC., Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 984
123 N.Y.S.3d 699

In the Matter of SANTANDER CONSUMER USA, INC., Respondent,
v.
KOBI AUTO COLLISION & PAINT CENTER, INC., Appellant, et al., Respondent.

529330

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 19, 2020
Decided and Entered: May 7, 2020

Elana Sharara, Great Neck, for appellant.

Law Offices of Rudolph J. Meola, Albany (Rudolph J. Meola of counsel), for respondent.

Before: Garry, P.J., Clark, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

123 N.Y.S.3d 701

In May 2016, Andre Leger, the registered owner of a 2015 Nissan Pathfinder, entered the office of respondent Kobi Auto Collision & Paint Center, Inc. (hereinafter respondent) and advised respondent that his vehicle was damaged as a result of an accident. Leger requested that respondent tow the Nissan to its shop and repair the damage, and executed an authorization for that purpose. Leger's automobile insurance carrier, Geico, inspected the Nissan and issued an estimate of repair in the amount of $4,942.08 towards the end of May 2016. The third-party insurer, Hereford Insurance Company, also inspected the Nissan and issued an estimate of repair in the amount of $3,493.01 in early June 2016. Respondent repaired the Nissan and, in July 2016, notified Leger that the repairs to the Nissan were completed, it was ready for pick up and payment was due. In the interim, while the Nissan was being repaired, Leger had rented two cars from respondent, which were charged to respondent's accounts with Enterprise Rental Car and Millennium Toyota, at a total cost of $2,721.46.

In mid-July, Leger returned the second rental car to respondent and left the premises without picking up his repaired Nissan or paying for the repairs, towing charges or either rental car. Thereafter, Leger received a check from Hereford for the repairs to the Nissan and rental car charges, but never paid respondent for the repairs or the rental cars. Approximately two weeks later, A & E Liens, Inc., on behalf of respondent, filed a garagekeeper's lien against the Nissan – in which petitioner holds a perfected priority lien – in the amount of $11,880.62. Respondent's office manager notified petitioner that Leger refused to pay for, among other services provided by respondent, the repairs to the Nissan, and demanded that petitioner pay for the repairs, towing and rental costs and storage fees that were accruing daily. In August 2016, and again in October 2016, respondent's office manager provided photographs of the Nissan as well as the estimate of repairs and invoices of the car rentals to petitioner's replevin representatives, but respondent received no payment.

Petitioner, after being served with the notice of lien and sale in early October 2016, commenced this proceeding seeking, among other relief, a declaration that the garagekeeper's lien was void and return of the Nissan upon petitioner's posting of a bond for $15,000 as security for the purported garagekeeper's lien on the Nissan. Petitioner's challenge to the lien was based upon, among other things, respondent filing the lien against the Nissan, without prior court review, as petitioner holds the first priority perfected lien. Respondent failed to respond to the petition and, as a result, Supreme Court issued an order and judgment on default in early November 2016, granting the relief sought, which included canceling respondent's claims against petitioner for garaging, repairing and storing the Nissan, ordering that the Nissan shall be delivered to petitioner on demand, and releasing the bond. Pursuant to Supreme Court's order, respondent released the Nissan to petitioner in January 2017.

Thereafter, respondent unsuccessfully moved to vacate the default which motion, if granted, would have set aside the order directing the release of the...