By: Weston, J.P., Toussaint, Golia, JJ. Stephen David Fink, Esq., for appellant. Serpe, Andree & Kaufman (Jonathan H. Kaufman of counsel), for respondent. 2019-172 Q C. STATE FARM INDEM. CO. v. PARKING SYS. VALET SERV. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered October 31, 2018. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,621.12 as against both defendants. 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. March 19, 2021
By: Weston, J.P., Toussaint, Golia, JJ. Umoh Law Firm, PLLC (Uwem Umoh of counsel), for appellant. Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP (William E. Vita of counsel), for third-party defendants-respondents. Corporation Counsel City of NY (James Johnson of counsel), for defendants/third-party plaintiffs (no brief filed). 2019-798 K C. GRAHAM v. THE CITY OF N.Y. — Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 4, 2019. The order, insofar as appealed from, granted the branch of third-party defendants’ motion seeking to vacate an order of that court dated December 15, 2016 granting plaintiff’s unopposed motion to vacate the dismissal of the complaint and, upon such vacatur, to deny plaintiff’s motion. ORDERED that the order, insofar as appealed from, is affirmed, without costs. This action to recover for injuries allegedly sustained in a fall in 2005 was dismissed in 2011 based on plaintiff’s failure to appear for a scheduled trial date (see 22 NYCRR 208.14 [b] [2]). Five years later, plaintiff moved to vacate that dismissal. The motion, which was unopposed, was granted by order dated December 15, 2016. The third-party defendants, who were not served with plaintiff’s motion, subsequently moved to, among other things, vacate their “default” in opposing plaintiff’s motion, based on excusable default (see CPLR 5015 [a] [1]), and, upon such vacatur, to deny plaintiff’s motion. Plaintiff appeals from so much of the order as granted that branch of the motion. The third-party defendants demonstrated a reasonable excuse for not opposing plaintiff’s motion, in that they had no notice of the motion. They also demonstrated a meritorious opposition to plaintiff’s motion, as plaintiff’s motion failed to establish a reasonable excuse for plaintiff’s default in appearing or for his lengthy delay in moving to vacate his default (see Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 AD3d 825 [2013]) and a meritorious cause of action (see SZ Med., P.C. v. Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; V.S. Med. Servs., P.C. v. Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see also CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Plaintiff’s argument regarding “standing” lacks merit (see CPLR 1008, 5015 [a]). Plaintiff’s remaining arguments are improperly raised for the first time on appeal (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]), lack merit and border frivolity. Accordingly, the order, insofar as appealed from, is affirmed. WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur. March 19, 2021
