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Ingram v. Machel and Jr. Auto Repair, Inc.

Appellate Division of the Supreme Court of New York, First Department
Mar 9, 1989
148 A.D.2d 324 (N.Y. App. Div. 1989)

Opinion

March 9, 1989

Appeal from the Supreme Court, Bronx County (Harold Tompkins, J.).


Defendants sought to liquidate their claim for unpaid garage bills for storage of plaintiff Denson's BMW automobile, delivered to defendants by plaintiff Ingram, by foreclosing their possessory lien and selling the car at auction. Because defendants committed multiple violations of the Lien Law in undertaking this remedy, they are liable for the resulting conversion of the BMW. It was therefore error for the motion court to deny partial summary judgment in favor of plaintiffs on their respective causes of action for conversion. Among defendants' violations of pertinent Lien Law provisions were the following:

(1) Defendants sold the automobile at an auction sale on September 14, 1983, only 14 days after their first publication of the sale in the New York Daily Fruit and Vegetable Reporter on August 31, 1983. Thus they violated Lien Law § 202 (1) which provides that an auction sale of personal property, upon which a lien is asserted, must be held "not less than fifteen days from the first publication" (Lewis v. Jim's Boat Yard, 70 Misc.2d 425; see also, same case at 73 Misc.2d 24, and authorities therein cited).

(2) The nine-day interval fixed by the date the notice was mailed to plaintiffs and the date set for final opportunity to satisfy the lien was in violation of Lien Law § 201, which requires a 10-day notice period.

(3) The scheduling of the auction sale for September 14, 1983 left only 15 days (10 days less than the 24 days required by the Lien Law) to pass between the date the notice was mailed (Aug. 30, 1983) and the date of the auction sale.

(4) Defendants failed, as a matter of law, to exercise "due diligence" in serving the notice of sale as required by Lien Law § 201. Here, only the most perfunctory effort was made to furnish notice, the inadequacy of which totally failed to apprise either plaintiff of the impending auction (Barnes v. City of New York, 70 A.D.2d 580; Smith v. Wilson, 130 A.D.2d 821, 822).

These clear departures from the strict requirements of the Lien Law raised no triable issues and constituted conversion as a matter of law (Wise Co. v. Rand McNally Co., 195 F. Supp. 621; Herschenhart v. Mehlman, 125 Misc. 887; see generally, Sharrock v. Del Buick-Cadillac, 45 N.Y.2d 152).

The motion court properly denied defendant Machel Monley's cross motion to dismiss the complaint as against him. Monley, as president of the corporate defendant, was a direct participant in the conversion of the automobile in that he hired the defendant auctioneer and is chargeable with this agent's full knowledge and control of the auction sale procedures. Officers and agents of corporations are personally liable for their own acts which bring about a conversion of a third party's property, and it is no defense to personal liability that the officer or agent may have been acting on behalf of a corporate principal (Hinkle Iron Co. v. Kohn, 229 N.Y. 179; Prudential-Bache Sec. v. Golden Larch-Sequoia, 118 A.D.2d 487, 488).

Finding no error in the remaining dispositions made by the motion court, we otherwise affirm.

Concur — Murphy, P.J., Kupferman, Carro, Ellerin and Wallach, JJ.


Summaries of

Ingram v. Machel and Jr. Auto Repair, Inc.

Appellate Division of the Supreme Court of New York, First Department
Mar 9, 1989
148 A.D.2d 324 (N.Y. App. Div. 1989)
Case details for

Ingram v. Machel and Jr. Auto Repair, Inc.

Case Details

Full title:LEE J. INGRAM, JR., et al., Appellants, v. MACHEL AND JR. AUTO REPAIR…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 9, 1989

Citations

148 A.D.2d 324 (N.Y. App. Div. 1989)
538 N.Y.S.2d 539

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