Papers Reviewed: Motion & Supporting Papers: 1 Opposition: 1 Reply: 1 DECISION AND ORDER Plaintiff brought this action for loss of personal property in the amount of $25,000. Plaintiff alleges that Defendant seized and destroyed her car without legal authority to do so. Defendant moves to dismiss pursuant to CPLR 3211(a)(7). Plaintiff opposes dismissal. For reasons stated herein, the Court grants dismissal. FACTS Plaintiff alleges that on February 2, 2020 she parked her 2002 Honda Civic on the public road located at East 58th Street between Avenues K and L in Brooklyn (see defendant’s exhibit A, notice of claim). Plaintiff’s car was damaged in 2019 and her relatives were making repairs (id.). On February 6, 2020, Plaintiff went to move her car, but it was missing (id.). A few weeks later, she learned that on February 5, 2020 employees of the New York City Department of Sanitation (hereinafter, “DOS”) took her car and disposed of it on February 7, 2020 (id.). Plaintiff’s cousin, Rogen Vickers, averred that he was helping repair Plaintiff’s car (see plaintiff’s exhibit H). He also saw the car with a rear license plate on “no more than 36 hours prior to the time of towing by [DOS]” (id. at 9). Anthony Licastro, a DOS Supervisor, averred that on February 5, 2020 at 10:30am, he drove on East 58th Street between Avenues K and L and saw Plaintiff’s car without license plates (see defendant’s exhibit H). He conducted a visual inspection and determined that the car was in a “deteriorated/dilapidated condition” because it was damaged in the front end and the side (id. at 4-7). He concluded that the car fit the DOS’s description for a derelict vehicle because it did not have license plates; was damaged; and was eight years old or older (id. at 10). He tagged the vehicle for removal; entered the relevant information in DOS’s “smart system,” which after six hours, generates a removal request to a DOS contractor to remove the car off the public roadway (id. at 12-15). He did so pursuant to DOS Administrative Policy and Procedure No. 2012-06 (id. at 2). Kerry Scully, a DOS Derelict Vehicle Operations Yard Supervisor, averred that she personally authorized a City contractor to remove Plaintiff’s car (see defendant’s exhibit K). The contractor removed the car on February 6, 2020 at 2pm, well after six hours since Licastro tagged the car for removal (id. at 13-14). Scully personally inspected the vehicle when it was brought into the contractor’s yard and confirmed that it met DOS’s criteria for derelict vehicles (id. at 15-16). Scully also confirmed that Plaintiff’s car had front end damage; that it was eight years old or older; and did not have any affixed license plates (id. at 17-19). On February 7, 2020, DOS released Plaintiff’s car to its contractor for disposal (id. at 27). ANALYSIS In reviewing a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the Court must liberally construe the pleading by giving the plaintiff every possible favorable inference; accept facts alleged in the complaint as true; and determine only whether the facts as stated fit within a cognizable legal theory (see High Tides, LLC v. DeMichele, 88 AD3d 954, 956-957 [2d Dept 2011] [internal quotation marks and citations omitted]); Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). The main issue is whether Defendant had a proper legal basis to seize Plaintiff’s car. Here, the complaint alleges a single cause of action for “Loss of Personal Property for $25,000.00 with interest from 03/05/2020″ and does not state additional facts or allegations (see defendant’s exhibit B). In essence, the complaint alleges a claim for common law conversion of Plaintiff’s personal property. “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” (Petrone v. Davidoff Hutcher & Citron, LLP, 150 AD3d 776, 777 [2d Dept 2017] [internal citations and quotations marks omitted]). “Two key elements of conversion are (1) plaintiff’s possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s right” (id.). Defendant makes several arguments in support of dismissal, foremost is that it removed Plaintiff’s car consistent with laws aiming to keep streets free of abandoned vehicles. New York’s Vehicle and Traffic Law (hereinafter, “VTL”) deems as abandoned any vehicle left on a city street without license plates for over six hours and vests title with the city, under certain circumstances (see Vehicle and Traffic Law §1224 [2]; see also Navarro v. New York, 136 AD2d 483, 484 [1st Dept 1988]). The City’s Administrative Code authorizes the DOS Commissioner to set policies and procedures to, inter alia, remove vehicles from the City’s streets (see Administrative Code of City of NY §16-128[a] & [b] [7]; see also Navarro, 136 AD2d at 484). DOS put in place procedures for identifying and removing derelict vehicles (see NY City Dept of Sanitation Policy & Administrative Procedure 2012-06). VTL §1224 [1] [a] deems motor vehicles as abandoned if they are left unattended “with no number plates affixed thereto, for more than six hours on any highway or other public place.” VTL §1224 [2] authorizes a local authority, such as Defendant, to take and dispose of abandoned vehicles: “If an abandoned vehicle, at the time of abandonment, has no number plates affixed and is of a wholesale value, taking into consideration the condition of the vehicle, of one thousand two hundred fifty dollars or less, ownership shall immediately vest in the local authority having jurisdiction thereof and title to the vehicle shall vest in accordance with applicable law and regulations of the commissioner, provided however that a local authority shall not be required to obtain title to an abandoned vehicle that is subject to the provisions of this subdivision if the vehicle will be sold or otherwise disposed of as junk or salvage, dismantled for use other than as a motor vehicle, or otherwise destroyed.” (VTL §1224 [2]) DOS’s Policy & Administrative Procedure 2012-06 §1 defines a “derelict vehicle” as one that is “left unattended without license plates attached for more than six hours on any city street using criteria set forth in Appendix 1″ (NY City Dept of Sanitation Policy & Administrative Procedure 2012-06). Appendix 1 lists criteria for assessing the wholesale value of motor vehicles as required by VTL §1224 [2] (id. ["The Department of Sanitation will not place a dollar value on a derelict vehicle. The criteria set forth in Appendix 1 was established to accommodate and reasonably approximate the definition of wholesale value as set forth in Section 1244 of New York State Vehicle and Traffic Law."]). Defendant supported its motion with two affidavits1 of eyewitnesses who are DOS supervisors: Anthony Licastro and Kerry Scully. Licastro found Plaintiff’s car parked on a city street without licenses plates, with damage to the front end and side, and determined that it was over eight years old (see defendant’s exhibit H). He tagged the car for removal. Scully processed the removal request, approved removal, and the car was removed almost 24 hours after Licastro tagged it for removal (see defendant’s exhibit K). She inspected the vehicle to confirm that it met DOS’s criteria for disposal and then authorized disposal, which was completed the following day (id.). DOS’s guidelines for classifying derelict vehicles, includes any vehicle that is eight years or older and is damaged in one or more of the categories listed including, front end damage or damage to the side (see NY City Dept of Sanitation Policy & Administrative Procedure 2012-06, Appendix 1). In opposition, Plaintiff asserts that license plates were affixed to her car when it was removed. However, Plaintiff does not provide any credible evidence supporting this assertion. Plaintiff’s own statements and those of her cousin do not indicate that they had personal knowledge of whether the license plates were on the car during the relevant period when Licastro tagged the car for removal (February 5, 2020 at 10:30am) through February 6, 2020 at 2pm, when it was removed. Plaintiff also disputes DOS’s determination that the car was derelict, asserting that it was in “pristine” condition with minor damage (see plaintiff’s affirmation in opposition at 2). Her cousin described the car as a being in good condition with “a small cosmetic dent in the front passenger side” (see plaintiff’s exhibit H, Vickers affidavit at 3 & 10). Plaintiff also provided a Kelly Blue Book report, which estimated the value of her car as $4,704 for a typical listing (see plaintiff’s exhibit B2). The Court is unpersuaded by these self-serving assertions for multiple reasons. First, the only photos showing the condition of Plaintiff’s car confirm the damage witnessed by DOS employees: front and right-side damage (see plaintiff’s exhibit A). Second, the Kelly Blue Book report does not account for this type of damage in its estimate. The police report documenting the accident that caused damage to Plaintiff’s car also indicates that most of the damage was to front, right-side panel (see plaintiff’s exhibit A1). Plaintiff’s remaining contentions are without merit and any additional proof submitted by Plaintiff merely amounts to speculation about other situations disconnected to the case. Therefore, the Court finds that Defendant supported its motion with conclusive proof that it abided by its legal obligations in identifying Plaintiff’s car as one requiring removal. This proof established a complete defense to Plaintiff’s claim for conversion. Plaintiff did not rebut this proof with credible evidence indicating that, even with the benefit every possible favorable inference, she has a cognizable cause of action for loss of her car. Based on the forgoing, the Court hereby grants Defendant’s motion and ORDERS that this case be dismissed with prejudice. Given the Court’s determination, the appearance scheduled for October 4, 2024 is cancelled. This constitutes the Decision and Order of the Court. Dated: September 27, 2024
