Hanley v. Westerly Marina, Inc.

271 A.D.2d 408, 707 N.Y.S.2d 328, 2000 N.Y. App. Div. LEXIS 3749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2000
• Status: Published

Opinion

—In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals and the defendants cross-appeal from a judgment of the Supreme Court, Putnam County (Braatz, J.), dated November 16, 1998, which, after a nonjury trial, is in favor of the plaintiffs and against the defendants in the principal sum of $386.25.

Ordered that the judgment is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings consistent herewith.

The Supreme Court properly determined that the plaintiff demonstrated the existence of a bailment by entrusting his sailboat to the defendants for storage and repairs (see, Osborn v Cline, 263 NY 434; see also, People v Wilson, 93 NY2d 222). Additionally, the Supreme Court properly found that the plaintiff was negligent in failing to reexamine the relationship upon learning that the defendants would not perform the repairs for which the plaintiff had contracted (see, Osborn v Cline, supra, at 438).

However, it is apparent that the Supreme Court erred in the assessment of the offset to which the defendants were entitled, including, but not limited to, awarding $5,000 as taxes on storage fees after the court had reduced the storage fees from $69,113.42 to $11,132. Therefore, the matter is remitted to the Supreme Court for a reassessment of damages. Thompson, J. P., Feuerstein, Schmidt and Smith, JJ., concur.