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Rodriguez v. Central Parking System of New York10/18/2005
may secure the application of the longer contract period" (footnotes omitted; see also, 2A Carmody-Wait 2d § 13:127, Nature of action as in contract or tort; alternative remedies, "Where a party can establish a cause of action in contract, the six-year statute applies, even though such party might conceivably recover in tort").
This same conclusion appears required when, as here, a garage with attendant parking fails to produce a properly garaged car upon demand. The contract is formed by the issuance of a parking ticket and the surrender of a vehicle into the custody and control of the garage, giving rise to an actual bailment (Osborn v. Cline, 263 NY 434, 436 , parking arrangements "are graded all the way up to the housed garage where cars may be left at more expense. Whether a person simply hires a place to put his car or whether he has turned its possession over to the care and custody of another depends on the place, the conditions, and the nature of the transaction"). The breach of the bailment contract is made out by a showing of the garage's refusal to deliver the bailed item to the client (Klein v. Parke-Bernet Galleries, Inc., 21 AD2d 772 [1st Dept. 1964], the six-year statute of limitations period applies to an action to recover for bailee's refusal to deliver property, as "the gravaman does not depend on the loss or impairment of the property but the refusal to deliver. Indeed the cause of action accrues only on the demand and is not dependent upon what happened to the ... [property] or when").
On the facts presented, General Obligations Law § 5-325 underscores that negligence is not relevant (GOL § 5-325 , "No person who conducts or maintains for hire or other consideration a garage, parking lot ... may exempt himself from liability for damages for injury to person or property resulting from negligence of such person, his agents or employees ... in its housing, storage, parking"). The statute is rendered irrelevant only when the facts show that the relationship formed was something less than a bailment (see, Rembert v. Co-op. City Parking Garage No. 2, 86 Misc 2d 399, 400-401 [App. Term 1st Dept. 1975], where "there did not exist that measure of dominion and control by defendant over plaintiff's vehicle which creates a bailor-bailee relationship" then statute did not bar creation of "licensor licensee relationship... [which] did not rise to the level of a bailment"; see also, comprehensively collecting cases nationwide and reporting that there is an industry understanding that a full-service garage has a duty to produce the car when it is claimed by the customer, which liability is best limited by operating as a park-and-lock facility, William V. Vetter, The Parking Lot Cases Revisited: Confusion at or about the Gate, 40 Santa Clara L. Rev. 27, 29 ).
It remains true that the longer statute of limitations applies only to the extent that contract damages are sought (Agway Ins. Co. v. P and R Truss Co., Inc., 11 AD3d 975 [4th Dept. 2004], claim for uninsured business losses not within contemplation of the parties when they entered into construction contract, and were subject to three-year limitations period).
Accordingly, given that the complaint and bill of particulars request only contract damages and disclaim any theory of negligence, the claim raised is properly subject to a six-year limitations period. The court does not reach the question of the statute of limitations to be applied to park-and-lock arrangements and to situations in which liability arguably arises exclusively under a negligence theory (Ellish v. Airport Parking Co. of Am., 42 AD2d 174, 179 [2d Dept., 1973], appeal dismissed 33 NY2d 764 , affd without opinion 34 NY2d 882 , for airport p
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