By: Toussaint, P.J., Buggs, Ventura, JJ. Richard W. Bryan, for appellant. Law Office of Alexander P. Kelly (Alexander P. Kelly of counsel), for respondent.
2021-645 Q C. JACKSON v. CASINO TOWING SERV., INC. — Appeal from an order of the Civil Court of the City of New York, Queens County (Brenda Rivera, J.), entered August 24, 2021. The order granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiff’s motion to dismiss affirmative defenses. ORDERED that the order is affirmed, without costs. Plaintiff commenced this action to recover for conversion, breach of a constructive bailment, negligence, unjust enrichment, and violation of the Lien Law in regards to his vehicle, which was seized by the New York State Police, towed by defendant on February 7, 2017, and thereafter sold by defendant at auction on March 23, 2018. Plaintiff moved to dismiss defendant’s affirmative defenses, including, insofar as relevant to this appeal, failure to state a cause of action and statute of limitations. In his affidavits in support of his motion, plaintiff averred that he went to defendant’s place of business on February 8, 2017 demanding the return of his vehicle and providing a notice of recorded lien from his financing company which listed him as the owner of the vehicle. Plaintiff further averred that defendant refused to release the vehicle without proof of ownership in the form of a valid title or registration. Thereafter, defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 and for summary judgment dismissing the complaint pursuant to CPLR 3212, arguing that the causes of action were either time-barred or lacked merit. In the affidavits of its president in support of its cross motion, as well as in its verified answer and counterclaim, defendant disputed that plaintiff provided the notice of recorded lien as proof of ownership when plaintiff appeared at defendant’s office and demanded the return of the vehicle, but admitted that defendant had sent a notice of impound and a notice of lien and sale to plaintiff, as the owner of the vehicle. By order entered August 24, 2021, the Civil Court granted defendant’s cross motion for summary judgment dismissing the complaint, finding that plaintiff had failed to establish ownership or a proprietary interest in the subject vehicle, essential to maintaining the action, and, thus, plaintiff had failed to meet his burden to defeat defendant’s cross motion. The Civil Court also denied plaintiff’s motion to dismiss the affirmative defenses.
