| Matter of BMW Bank of N. Am. v G & B Collision Ctr., Inc. |
| 2007 NY Slip Op 10528 [46 AD3d 875] |
| December 26, 2007 |
| Appellate Division, Second Department |
| In the Matter of BMW Bank of North America,Appellant, v G & B Collision Center, Inc., et al.,Respondents. |
—[*1] Robert N. Swetnick, New York, N.Y., for respondent G & B Collision Center, Inc.
In a proceeding pursuant to Lien Law § 201-a to determine the validity of a lien, thepetitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Johnson, J.), dated March 22, 2006, as granted the petition only to the extent of reducingthe lien of G & B Collision Center, Inc., by the sum of $300 and, in effect, denied that branch ofthe petition which was to recover damages for conversion.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Kings County, for further proceedings in accordanceherewith.
The respondent G & B Collision Center, Inc. (hereinafter G & B Collision) entered into anagreement with a third party to make repairs to a 2001 BMW Model X5 vehicle owned byAmanda Hinckson and on which the petitioner BMW Bank of North America had a lien whichwas listed on the certificate of title of the vehicle. Some three years after the repairs to the vehicleallegedly were completed, when neither the third party nor the owner had paid for the repairs andreclaimed the vehicle, G & B Collision provided the owner and the petitioner with a notice oflien and sale, pursuant to Lien Law § 201, to enforce its lien. The notice of lien and salesought sums for parts and labor; a sum for storage of the vehicle from the first day of the monthit was delivered to G & B Collision, notwithstanding an assertion that the repairs took severalweeks to complete, through the date of the notice of sale; and an unspecified sum for furtherstorage of the vehicle from the date of the notice to the date when the lien was paid or the vehiclewas sold. The total of the lien was for a sum greater than the estimated value of the vehicle. Thepetitioner timely commenced a [*2]proceeding pursuant to LienLaw § 201-a to challenge the validity of the lien.
In response to a challenge to the lien pursuant to Lien Law § 201-a, the lienor mustmake a prima facie showing of the validity of the lien and entitlement to the amount claimed(cf. Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Eland Motor Car Co., 85NY2d 725, 730 [1995]). In this case those elements include, inter alia, the existence of anagreement for the imposition of storage charges and that the cost of the repairs was in accordancewith the written estimate.
In response to the petition, G & B Collision asserted that it provided the third party with awritten estimate of the repairs when the third party agreed in writing to the repairs beingperformed. There was no assertion that the owner of the vehicle requested or consented to acharge for the storage of the vehicle.
Pursuant to Lien Law § 184 (1), a bailee who has furnished a written estimate forrepairs may not assert a lien for those repairs in an amount in excess of the written estimate.Where a lienor seeks damages for the period between the notice of sale and the payment of thelien or ultimate sale of the vehicle, the claim must be based on an agreement which provides forthe continuous care of the property (see Lien Law § 201-a). In order for agaragekeeper to have a lien for storage of a vehicle, there must be a specific agreement for suchstorage (see Phillips v Catania, 155 AD2d 866 [1989]; see also F & N Corvette &Classics v Corvette Repairs, 206 AD2d 349 [1994]). Where a garagekeeper claims more thanis actually due, he or she is guilty of conversion and liable to the owner in damages (seePhillips v Catania, 155 AD2d 866 [1989]).
Under the circumstances, the Supreme Court should not have granted the petition only to theextent of reducing the lien by the sum of $300. Accordingly, we remit the matter to the SupremeCourt, Kings County, for a hearing on the existence and amount of G & B Collision's lien, if any.If it is established that a conversion occurred, the Supreme Court may, in its discretion,determine whether the damages from such conversion also may be determined within thisproceeding. Spolzino, J.P., Krausman, Fisher and Angiolillo, JJ., concur.