DECISION AFTER TRIAL Plaintiff, State Farm Mutual Automobile Insurance Company (“State Farm”) commenced this action as subrogee to recover the sum of $14,899.251 paid to plaintiff’s insured, Steven Brenner (subrogor), when the Brenner 2009 BMW x5 was stolen and then recovered in a damaged condition after having been valet parked on December 7, 2013 at defendant Matteos Restaurant’s (“Matteos” or “the restaurant”) premises in Huntington, NY. The non-jury trial was bifurcated on the issues of liability and damages and held before the undersigned on March 6, 2018 (liability) and March 12, 2018 (damages). LIABILITYTwo witnesses testified, both of whom were called by plaintiff. Steven Brenner, the owner of the 2009 BMW involved in the underlying incident testified consistently and credibly as to the circumstances of his arrival at Matteos, including his turnover of possession of his vehicle to the valet attendants on duty, their use of a key-board upon which vehicle keys were placed, their inability to deliver his car after he dined at the restaurant, and his discussions and reporting of the incident to Christina Ho — identified to him as the manager of Matteos, Michael Petruzzelli — identified to him as Vice President of Operations of Parking Systems, and the police. Mr. Brenner also testified credibly regarding the return of his vehicle in a damaged condition, his disposition of the vehicle, receipt of a check from plaintiff of roughly $14,000.00 which did not include reimbursement for his $500.00 deductible, and his receipt of both a check for $1,000.00 and a $200.00 Matteos gift card for reimbursement of his loss of personal property within the vehicle.Mark Baron, a principal and officer of Olympic Parking Services, Ltd (“Olympic”) and someone actively involved with named defendant Parking Systems, was the second witness to testify. His testimony was less credible as it was more evasive especially as to how valet parking works generally (FTR2: 4:08:15 — 4:09:05) and as to the identity and relationship between Parking Systems and Olympic. Mr. Baron also testified that Parking Systems was not a corporate entity but that “Parking Systems is encompassed by many, many corporations, that’s why it is a parking system” (FTR: 4:05:05). He further testified that Olympic, of which both he and Mr. Petruzzelli are officers, was the corporate entity doing the valet parking at Matteos on December 7, 2013 and that is why Olympic issued the $1,000.00 check (Plaintiff’s Exhibit 8) in conjunction with the February 12, 2014 release (Plaintiff’s Exhibit 3).At the initial close of testimony plaintiff’s motion to conform the pleadings to the proof was granted. In addition, defendants’ motion to dismiss was granted as against defendant Matteos but decision was reserved as against defendant Parking Systems or the entity which actually provided the valet parking that night. The court further found that the credible testimony established that a bailment was created between Mr. Brenner and the valet company which took possession of, but could not return, either Mr. Brenner’s keys or vehicle, thereby subjecting said company to the damages sustained by Mr. Brenner (see Albert v. Olympic Parking Serv., 1998 NYLJ LEXIS 2569 [Dist Ct. Suffolk Co. 1998]).After so holding, the court went on to reference the existence of a line of cases in which the plaintiffs was allowed to amend the pleadings to correct a misnomer in the identification of the named defendant where plaintiff’s intention to sue a specific, albeit misnamed, entity was clear, service had been made upon that entity so as to confer jurisdiction and the misnamed entity was not prejudiced thereby.As it was abundantly clear that State Farm intended to sue the valet company working at Matteos on December 7, 2013 the court indicated that it was only struggling with the issue of whether jurisdiction had been obtained over Olympic. Since service on the misnamed defendant, Parking Systems, was made upon an identified woman at 28 4th St., Valley Stream, NY 11582 on August 26, 2016 the court was unsure if there was sufficient evidence of said address also being Olympic’s place of business so as to confer jurisdiction. Copies of Ober v. Rye Town Hilton, 159 AD2d 16 [2d Dept 1990] were then printed out and provided to both counsel after which the parties jointly sought to re-open testimony to allow exploration of the issues raised thereby.Mr. Baron then re-took the stand as defendants’ witness and testified that Olympic’s officers were Ronald Spinelli — President, Mark Baron — Vice President, and Michael Petruzzelli — Secretary/Treasurer. He also testified that Parking Systems helped oversee things for Olympic in the normal course of business and that Olympic did the parking for Matteos in Huntington. Lastly, he testified that Olympic operated as a separate business out of Mr. Spinelli’s house in Dix Hills and had since gone out of business. It was during Mr. Baron’s re-opened testimony that the $1,000 check from Olympic was entered into evidence as Plaintiff’s 8.While the court declined to adjourn the damages portion of the trial, counsel for both parties were afforded the opportunity to submit papers on the outstanding motion.Upon consideration of the testimony and evidence as well as the plaintiff and defendants’ respective post trial memoranda of law, the court amends plaintiff’s pleadings to correct what appears to be a misnomer in identifying Parking Systems as the operator of the valet service which took possession of Mr. Brenner’s vehicle on December 7, 2013 and were unable to return either it or the keys.In so holding the court sua sponte takes judicial notice of the public records available online from the New York Department of State, Division of Corporations insofar as it lists Olympic Parking Services, Ltd. as an active corporation whose Chief Executive Officer is Mike Petruzzelli with 28 4th Street, Valley Stream, NY 11581 as the address for both Mr. Petruzzelli and the “Principal Executive Office” of Olympic itself (see Brandes Meat Corp. v. Cromer, 146 AD2d 666 [2d Dept 1989] [court sua sponte took judicial notice of certificate of dissolution of corporation issued by Secretary of State]; Associated Gen. Contrs. Of Am., N.Y. State Ch. v. Lapardo Bros. Excavating Contrs., 43 Misc2d 825, 826 [Sup. Ct Albany Co. 1964] ["indisputable public records of the Secretary of State" showed that plaintiff was a domestic membership corporation]).Clearly then, Olympic, whose chief executive officer participated in reporting the valet company’s loss of Mr. Brenner’s car knew about the incident and knew it was Olympic which was intended to be held responsible when papers were served at his principal corporate office. Indeed, wording of the February 12, 2014 release (Plaintiff’s Exhibit 3) which only mentioned Matteos and “Parking Systems and all of it [sic] Divisions and Employees” appears to have been carefully crafted to avoid mention of Olympic given the likelihood of future litigation of behalf of plaintiff as subrogee (see Short Form Order dated November 14, 2014 [Muscarella, J.]) notwithstanding that it was Olympic which issued the $1,00.00 payment in conjunction with that release.Under the circumstances, jurisdiction was obtained over Olympic and it will not be heard to claim prejudice by the amendment to the complaint. “[B]y prejudice is meant some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add” (Barbour v. Hospital for Special Surgery, 169 AD2d 385, 386 [1st Dept 1991] [internal quotes and citations omitted]). Such is not the case here.Accordingly, Olympic Parking Services, Ltd., sued here as Parking Systems, is liable for the damages resulting from the theft of the subject 2009 BMW.DAMAGESTo avoid having to again call Mr. Brenner during the damages phase of the trial, he was allowed to testify on March 6, 2018 on the issue of damages. His testimony in this regard was again credible as was that of the only other testifying witness, Anthony Spozito, a field appraiser for plaintiff called by plaintiff on March 12, 2018.Taken together, the court is satisfied that plaintiff is entitled to recover the full $13,922.66 it paid to Mr. Brenner on December 19, 2013 ($14,422.66 less his $500.00 deductible) plus the $476.59 it paid to Enterprise Rent-A-Car December 27, 2013 on behalf of Mr. Brenner while he was without a vehicle of his own.No award is made with regard to the Mr. Brenner’s $500.00 deductible since no testimony was provided to establish that he was, in fact, out of pocket this amount. Rather, Mr. Brenner testified that he turned over his recovered 2009 BMW with the roughly $14,000.00 reimbursement check to his BMW dealer with which he had a long established relationship and where “they treat [him] very well” (FTR: 3:38:11 — 3:38:17). While Mr. Brenner indicated that these were traded in as partial payment for another car, there was no testimony regarding the details of said transaction. As a result there exists no basis upon which to categorize as his deductible whatever money Mr. Brenner may have additionally paid to obtain another vehicle.Lastly, no reduction is taken as a result of the $1,000.00 check and $200.00 gift card received by Mr. Brenner. As established by the express language of the release Olympic was not released, only Matteos and “Parking Systems and all of it [sic] Divisions and Employees”. Thus, Olympic is hoisted on its own petard if, as it appears, Olympic sought to mask its involvement in the events of December 7, 2013. Regardless of same, as the court accepts as credible Mr. Brenner’s testimony that the $1,000.00 payment and $200.00 gift card were limited to reimbursement of his losses for the contents of the 2009 BMW and not the vehicle itself, no offset is warranted in any event.Accordingly, plaintiff is entitled to judgment against Olympic Parking Service, Ltd., sued here as Parking Services, for the sum of $14,399.25 with interest from December 19, 20133, plus costs and disbursements.Submit judgment on notice within sixty (60) days of receipt of a copy of this decision from any source (see 22 NYCRR 212.33).Dated: April 5, 2018
