Reyero v. Guardian Ted Corp.

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered February 15, 1995, which, after a nonjury trial, awarded plaintiff the principal sum of $25,000, unanimously affirmed, with costs. Plaintiff made out a prima facie case of negligence by showing that he was the owner of an automobile which he entrusted to defendant-bailee, from whom he rented a garage parking space, and that defendant was unable to return the vehicle. The burden of going forward with the proof then shifted to defendant to show that the loss was not attributable to its negligence and that it exercised reasonable care (Jay Howard, Inc. v Rothschild, 16 AD2d 628). Defendant failed to do so. The record establishes that defendant turned over the vehicle, a Bentley automobile, to a person who claimed to be the owner, and paid the balance of the parking fees owed. That individual’s ownership and/or authority were not questioned by the employees of defendant, despite the fact that defendant had no reason to believe that the individual was the owner or a representative of the owner. Defendant was aware, at most, that the individual had some indefinite connection to plaintiff and to the vehicle, for which he possessed a set of keys. Defendant’s negligence was also established by its having lost its record of plaintiff’s name, address and telephone number after it had switched from a manual ledger system to a computerized system and having failed to utilize readily available means to ascertain the identity of plaintiff as the person who entrusted the vehicle to defendant, by simply contacting its billing center. Defendant’s alternative claim that it should be permitted to proceed as equitable subrogee to recoup the loss of the vehicle is premature, since such right does not arise until it has paid on the loss (Federal Ins. Co. v Andersen & Co., 75 NY2d 366, — 213 — 373). We have considered defendant’s other contentions and find them to be without merit. Concur—Sullivan, J. P., Milonas, Ellerin, Williams and Mazzarelli, JJ.