Wilson v. Gem Pawnbrokers Manhattan Corp.

Appellate Division of the Supreme Court of New York

Wilson v. Gem Pawnbrokers Manhattan Corp.

186 A.D.2d 517, 589 N.Y.S.2d 325, 1992 N.Y. App. Div. LEXIS 12348

Appellate Division of the Supreme Court of the State of New York·Decided October 29, 1992·Published·Cited by 1 cases

Opinion

— Judgment, Supreme Court, New York County (Harold Baer, Jr., J.) entered September 3, 1991, which, after a non-jury trial, awarded plaintiff a total of $29,459.21, unanimously affirmed, with costs.

Plaintiff proved at trial that he pledged $16,200 in jewelry to defendant for a loan of $1,800, and that the goods pledged were not returned. The burden then shifted to defendant, to prove by a preponderance of the evidence, that it was not at fault (see, Art Masters Assocs. v United Parcel Serv., 77 NY2d 200, 210-212 [Titone, J., dissenting]). Defendant attempted to meet that burden by seeking to prove that the goods pledged were stolen from defendant’s former employees in a gunpoint robbery. However, there was an absence of evidence in admissible form to show how the goods pledged were lost.

A term of the pawn agreement, printed in English on the pawn ticket and posted on two signs, limiting liability in this case to twice the amount of the loan ($3,600), is inapplicable. A contractual limitation upon liability is of no force or effect in an action where conversion is shown (I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657).

We have considered defendant’s remaining arguments, and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.

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— Judgment, Supreme Court, New York County (Harold Baer, Jr., J.) entered September 3, 1991, which, after a non-jury trial, awarded plaintiff a total of $29,459.21, unanimously affirmed, with costs.

Plaintiff proved at trial that he pledged $16,200 in jewelry to defendant for a loan of $1,800, and that the goods pledged were not returned. The burden then shifted to defendant, to prove by a preponderance of the evidence, that it was not at fault (see, Art Masters Assocs. v United Parcel Serv., 77 NY2d 200, 210-212 [Titone, J., dissenting]). Defendant attempted to meet that burden by seeking to prove that the goods pledged were stolen from defendant’s former employees in a gunpoint robbery. However, there was an absence of evidence in admissible form to show how the goods pledged were lost.

A term of the pawn agreement, printed in English on the pawn ticket and posted on two signs, limiting liability in this case to twice the amount of the loan ($3,600), is inapplicable. A contractual limitation upon liability is of no force or effect in an action where conversion is shown (I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657).

We have considered defendant’s remaining arguments, and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.

Wilson v. Gem Pawnbrokers Manhattan Corp., 186 A.D.2d 517, 589 N.Y.S.2d 325, 1992 N.Y. App. Div. LEXIS 12348 (N.Y. Ct. App. 1992).

Pincite

186 A.D.2d 517 (Wilson v. Gem Pawnbrokers Manhattan Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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