HVT, Inc.v.All Cnty. Towing & Recovery

STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANYJan 24, 2017
Index no.: 2464-16 (N.Y. Sup. Ct. 2017)
Index no.: 2464-162017 N.Y. Slip Op. 33087

Index no.: 2464-16

01-24-2017

In the Matter of the Special Proceeding Application of HVT, INC., Petitioner, v. ALL COUNTY TOWING AND RECOVERY and THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondents.

APPEARANCES: Meola Law Firm Attorneys for petitioner Rudolph J. Meola, Esq. Of counsel 1822 Western Avenue Albany, New York 12203 Peter B. O'Connell, Esq. 130 Washington Avenue Albany, New York 12210 Office of the New York State Attorney General Attorneys for The New York State Department of Motor Vehicles David L. Fruchter, Assistant Attorney General The Capitol Albany, New York 12224-0341


DECISION AND ORDER APPEARANCES: Meola Law Firm
Attorneys for petitioner
Rudolph J. Meola, Esq. Of counsel
1822 Western Avenue
Albany, New York 12203 Peter B. O'Connell, Esq.
130 Washington Avenue
Albany, New York 12210 Office of the New York State Attorney General
Attorneys for The New York State
Department of Motor Vehicles
David L. Fruchter, Assistant Attorney General
The Capitol
Albany, New York 12224-0341 MCNALLY, J.

Petitioner commenced this proceeding seeking a declaration regarding the validity of lien asserted by All County Towing and Recovery ("respondent"). Respondent opposes the petition. The Department of Motor Vehicles ("DMV") has sent a letter stating it takes no position on the merits and will issue or reissue a title certificate as the Court directs. For the reasons stated below, the petition is partially granted.

Respondent was contacted by the Nassau County Police Department, on April 17, 2016, to tow and impound a 2016 Acura registered to Shelley Bruce of 281 Wheeler Avenue, Valley Stream, New York. According to respondent, the vehicle was involved in an accident whereby the driver left the scene.

Lien Law section 184 allows a person who tows a vehicle at the request of a police agency to assert a lien for reasonable costs of such towing and storage fees. Section 184 [2] reads as follows:

A person who tows and stores a motor vehicle at the request of a law enforcement officer authorized to remove such motor vehicle shall be entitled to a lien for the reasonable costs of such towing and storage, provided that such person, within five working days from the initial towing, mails to the owner of said motor vehicle a notice by certified mail return receipt requested that contains the name of the person who towed and is storing said motor vehicle, the amount that is being claimed for such towing and storage, and the address and times at which said motor vehicle may be recovered. Such notice shall further state that the person mailing said notice claims a lien on said motor vehicle and that said motor vehicle shall be released to the owner thereof or his or her lawfully designated representative upon full payment of all charges accrued to the date that said motor vehicle is released. A person who mails the foregoing notice within said five day period shall be entitled to a lien for storage from and after the date of initial towing, but a person who fails to mail such notice within said five day period shall only be entitled to a lien for storage

from and after the date that the notice was mailed. A failure to mail such notice in a timely fashion shall not affect a lien for towing.

Lien Law § 184 "is in derogation of common law and thus is strictly construed" (Grant Street Const., Inc. v Cortland Paving Co., Inc., 55 AD3d 1106, 1107 [3d Dept 2008]). In response to a challenge to the validity of the lien, "the lienor must make a prima facie showing of the validity of the lien and entitlement to the amount claimed" (Matter of National Union Fire Ins. Co. v Eland Motor Car Co., 85 NY2d 725, 730 [1995]).

Here, respondent mailed the notice of lien, with return receipt requested, to both petitioner and Shelly Bruce as required by statute (see Lien Law § 184 [5]). On April 21, 2016, the amount sough by respondent for towing and storage fees was $282.44. Petitioner's counsel asserts that on May 2, 2016, petitioner contacted both the Nassau County Police Department and respondent seeking release of the vehicle. On May 5, 2016, petitioner paid respondent the $282.44 in towing an storage fees, but respondent refused to release the vehicle. Respondent informed petitioner that the Nassau County Police Department had a hold on the vehicle and that a release from the department would be required before petitioner would be permitted to retrieve the vehicle. Although the vehicle was ultimately released by the police agency, in September 2016, respondent now claims it is owed additional storage fees in the amount of $3,204.44.

The Court finds that respondent has failed to provide any authority the Nassau County Police Department had to hold the vehicle in impound after payment of the towing and storage fees. Therefore, petitioner can only be liable for the initial cost of towing and storage and not the additional storage fees sought while the vehicle was held for investigation and impoundment (Catti v W.E. Bryant's Inc., 107 AD2d 865 [3d Dept 1985]; Kane v Caprara, 182 Misc2d 572 [N.Y. City Ct. 1999]).

The Court has considered all remaining contentions and arguments and finds them to be either unpersuasive or unnecessary to determine given the decision reached in this matter.

Accordingly, it is

ADJUDGED that petitioner's application is granted in part, to the extent that respondent's lien for towing and storage, in the amount of $3,2014.44, is declared and adjudged invalid; and it is further

ADJUDGED, that lien for towing and storage, in the amount of $282.44, is declared and adjudged valid; and it is

ORDERED that the bond posted for security in the sum of $10,000.00 shall be released.

This shall constitute the Decision, Order, and Judgment of the Court. The signing of the Decision, Order, and Judgment and delivery of a copy of the Decision, Order, and Judgment shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. DATED: January 24, 2017


Albany, New York

/s/_________


Hon. Richard J. McNally, Jr.


Justice of the Supreme Court