United States District Court,D. New Jersey.

ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Seena International Inc., Plaintiffs,

v.

AVH TRUCKING LLC d/b/a GVS Trucking Inc., Defendant.

Civil Action No. 07-4802 (WHW).

Oct. 15, 2008.

OPINION

WALLS, Senior District Judge.

Plaintiffs St. Paul Fire and Marine Insurance Company (“St.Paul”) and Seena International Inc. (“Seena”) move for entry of default judgment, pursuant to Federal Rule of Civil Procedure 55(b), against defendant AVH Trucking LLC which does business as GVS Trucking Inc. (“GVS”). GVS has not opposed this motion. Pursuant to Federal Rule of Civil Procedure 78, the motion is decided without oral argument and is granted.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff St. Paul, a Minnesota Corporation, is an insurance company with its principal place of business in Minneapolis, Minnesota. St. Paul is the insurer of the co-plaintiff Seena, a New York corporation with its principal place of business in Yaphank, New York. Defendant GVS is a New Jersey Corporation with its principal place of business in East Rutherford, New Jersey.

Plaintiff Seena, contracted with defendant GVS for the shipment and delivery of a container of 1,385 cartons of denim jean shorts (the “Container”) from Thailand to Seena’s warehouse in Yaphank, New York. (Decl. of William O’Malley ¶ 1 (Dkt. Entry No. 9-3, filed October 2, 2008) (“O’Malley Decl.”).) On February 27, 2007, the Container was delivered to GVS, and on that same date a bill of lading was issued by GVS to Seena which verified that the Container was delivered to the defendant in good order and condition. (O’Malley Decl. Ex. A (Bill of Lading)).

The shipment was then loaded and picked up by a truck owned and operated by defendant GVS. En route to its final destination, the defendant drove its truck, with the Container attached, to the defendant’s premises located at 1511 Tonelle Avenue, North Bergen, New Jersey and parked the truck and the Container on the premises. (Compl. at ¶ 11.) On or about March 23, 2007, the Container and its contents were stolen from the premises. (Id. at ¶ 12.)Neither the Container nor its contents have been recovered. (Id. at ¶ 14.)

Shortly thereafter, Seena presented a claim for $129,282.73, the value of the lost goods, to St. Paul. (O’Malley Decl Ex. B (Statement of Claim).) St. Paul investigated the claim, and in accordance with the terms of its insurance policy with Seena, St. Paul fully reimbursed Seena, less a $1,000 deductible paid by Seena. (Compl.¶ 15.)

The plaintiffs filed the complaint in this matter on October 4, 2007 and service was made personally on Gurdev Singh, the registered agent and owner of GVS, on November 24, 2007. (Decl. of Stuart M. Goldstein ¶ 2 (Dkt. Entry No. 9-2, filed October 2, 2008) (“Goldstein Decl.”).) The defendant did not answer or otherwise respond to the complaint. On January 23, 2008 the plaintiffs requested that the Clerk of the Court enter default against the defendant. Default was entered on January 25, 2008. On March 24, 2008, the plaintiffs filed this motion requesting entry of default judgment against the defendant. The notice of motion and all supporting papers were served on the defendant by first class mail. The plaintiffs now seek to recover money damages for the loss of the goods in the principal amount of $129,282.73, plus pre-judgment interest accruing from March 23, 2007 until March 23, 2008 at a rate of 5% per annum, for total interest of $6,464.13. The plaintiffs also seek to recover the $350 filing fee for this action, for a total recovery of $136,096.86.

LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) governs the Court’s entry of default judgment. The party against whom default judgment is requested must have been properly served with process. Fed.R.Civ.P. 55(b)(2); Local Union No. 98, Int’l Bd. of Elec. Workers v. Cableco, Inc., No. 99-755, 1999 WL 269903, at * 1 (E.D.Pa. Apr. 28, 1999). Before a default judgment may be entered by the court, the moving party must have obtained an entry of default.Fed. R. Civ. Proc. 55(a).See10A Wright, Miller, & Kane, Federal Practice and Procedure,  § 2682, at 13 (3d ed.1998).

Entry of default and proper service do not automatically entitle a plaintiff to a default judgment. See, e.g.,  Cableco, Inc., 1999 WL 269903, at * 1 (citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1303 (3d Cir.1995)). The district court has the discretion to enter default judgment, although entry of default judgment is disfavored as decisions on the merits are preferred where practicable. Hritz v. Woma Corp., 732 F.2d 1178, 1180-81 (3d Cir.1984). When determining if a default judgment should be entered, a court should consider the following factors: the potential amount of damages; whether issues of material fact or substantial public concern are implicated; whether the default is primarily technical; whether the moving party has been substantially prejudiced by the delay involved; whether the grounds for default are clearly established or in doubt; whether the default was attributable to good faith, mistake, or excusable neglect; and whether the court may later be obliged to set aside the default. Franklin v. Nat’l Maritime Union of Am., No. 91-0480, 1991 WL 131182, at(D.N.J. July 16, 1991), aff’d, 972 F.2d 1331 (3d Cir.1992) (citing 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure,  § 2685 (2d ed.1983)).

Although the Court should accept as true the well-pleaded factual allegations of the complaint, the Court need not accept the moving party’s legal conclusions or factual allegations relating to the amount of damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990) (citing Wright, Miller & Kane, supra,  § 2688). Before granting a default judgment, the Court must first ascertain whether “the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.”  Directv, Inc. v. Asher, 03-cv-1969, 2006 WL 680533,(D.N.J. March 14, 2006) (citing 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure,  § 2688 (2d ed.1998)). The Court must also “conduct its own inquiry ‘in order to ascertain the amount of damages with reasonable certainty.’ “ Int’l. Assoc. of Heat & Frost Insulators v. South Jersey Insulation Servs., 05-cv-3143, 2007 WL 276137,(D.N.J. Jan. 26, 2007) (quoting In re Industrial Diamonds, 119 F.Supp.2d 418, 420 (S.D.N.Y.2000)).

DISCUSSION

A. Liability

The Court is satisfied that the defendant had ample notice of the complaint and of the motion for default judgment and chose not to respond. The record indicates that defendant was properly served and default has been entered by the Clerk. Furthermore, the record indicates that the defendant was served with notice of this motion for default judgment and with supporting documents via first class mail.

Accordingly, the Court will treat the allegations as to liability in the complaint as true and admitted by the defendant. The plaintiffs have alleged that the acts and omissions of the defendant resulted in the loss of the Container and consequently the defendant is liable to the plaintiffs under the Carmack Amendment, 49 U.S.C. § 14706. The Carmack Amendment reads:

A carrier providing transportation … shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier … [is] liable to the person entitled to recover under the receipt or bill of lading. The liability … is for the actual loss or injury to the property caused by … the delivering carrier.

49 U.S.C. § 14706 (2005). Because the defendant provided a valid bill of lading and the material did not arrive at its final destination, the plaintiffs have established grounds for imposing liability on the defendant pursuant to 49 U.S.C. § 14706.

B. Damages

The Court need not treat allegations of damages as true upon entry of a default judgment. Comdyne I, 908 F.2d at 1149. Under Rule 55(b)(2) a district court “may conduct such hearings or order such references as it deems necessary and proper” in order to determine the amount of damages. Id.

There are certain limited situations, however, where a district court can enter a final judgment without requiring further evidence of damages. KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1, 19 (1st Cir.2003). If the damages are for a “sum certain or for a sum which can by computation be made certain,” a further evidentiary inquiry is not necessary. Fed.R.Civ.P. 55(b)(1); KPS Assocs., 318 F.3d at 19; Comdyne I, 908 F.2d at 1149. A claim for damages is not a “sum certain unless there is no doubt as to the amount to which a plaintiff is entitled as a result of the defendant’s default.”  KPS Assocs., 318 F.3d at 19. “Such situations include actions on money judgments, negotiable instruments, or similar actions where the damages sought can be determined without resort to extrinsic proof.”  Id. at 19-20.

Here the plaintiffs seek three types of damages for: (i) the value of the lost goods; (ii) pre-judgment interest on the damages; and (iii) the cost of filing this action. Because plaintiffs have not submitted evidence that their damages are for a sum certain, the Court will examine the evidence submitted by plaintiffs in support of each of these claims for damages.

i. Damages for the Value of the Lost Goods

Damages to goods lost in shipping are measured by their market value. See  Eastman Kodak Co. v. Westwav Motor Freight, Inc., 949 F.2d 317, 319 (10th Cir.2003). It follows that plaintiffs may recover the market value of the 16,620 garments that were lost in transit. The 7,392 of the lost garments that had already been sold to retailers should be valued at their sale price. Invoices submitted by the plaintiffs support plaintiffs’ claim that at least 5,016 pieces had been sold for at least $8 each and at least 2,376 pieces had been sold for at least $10.50 each, for a total value of $65,076.00. (O’Malley Decl. Ex. C (Invoices).)

For the remaining 9,228 unsold garment pieces plaintiff claims a loss of $70,714.33. Such amount includes the price which the plaintiff paid the manufacturer for the garments along with the freight, taxes, and insurance paid on those items. Under the Carmack Amendment, freight, taxes, fees and insurance can be recovered in addition to the price paid for the commodity. See  American Nat’l. Fire Ins. Co. v. Yellow Freight Syss., Inc., 325 F .3d 924, 933 (7th Cir.2003). Plaintiff submitted invoices indicating that Seena had purchased 9,228 unsold garments from the manufacturer for $48,556.80.(O’Malley Decl. Ex. C (Invoices).) The cost of freight pro-rated to cover these items was equal to $2,187.04. (O’Malley Decl. Ex. B (Statement of Claim).) The garments, that were worth $50,743.84, were insured at a rate of 120% for a value of $60,892.61. Duty was paid on that amount, at a rate of 16.6%, for a total value of $70,714.33. (O’Malley Decl. Ex. D.)

The enclosed invoices reflect all of the stolen items-both those items that plaintiffs had sold at the time of theft and those that were unsold. The total purchase price of the unsold garments reflects 5,676 garments (10,692 purchased garments less 5,016 sold garments) purchased at $4.80 and 3,552 garments (5,928 purchased garments less 2,376 sold garments) purchased at $6.00. (O’Malley Decl. Ex.C (Invoices).)

The aggregate loss of both sold and unsold items of $135,790.33 after adjustment for unincurred loss of one percent totaled $129,282 .73.(Id.) The plaintiffs have included the bill of lading demonstrating that the defendant was aware of the precise amount of cargo that was loaded. Furthermore, the Court is satisfied that the invoices submitted by the plaintiffs for both the sold and unsold garments support the proper amount of damages claimed by plaintiff. Default judgment is granted in the amount of $129,282.73.

This total value reflects the value of the sold goods ($65,076.00) plus the value of the unsold goods ($70,714.33) less unincurred cost of 1% of $65,076.00 ($6,507.60). (O’Malley Decl Ex. B (Statement of Claim).)

ii. Pre-judgment Interest on Damages for the Value of the Lost Goods

Plaintiffs assert that they are entitled to pre-judgment interest on the damages for the value of the lost goods, calculated at a rate of 5% per annum from March 23, 2007 (the date the theft occurred) until March 23, 2008, the date of the filing of the motion for default judgment. Under New Jersey law, “the award of prejudgment interest for claims arising in contract is subject to the discretion of the trial court.”  Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 284 (3d Cir.1995) (citing Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 478 (1988)). Pre-judgment interest is awarded in order “to indemnify the claimant for the loss of what the moneys due him would presumably have earned if the payment had not been delayed.”Id. (quoting Ellmex Constr. Co. v. Republic Ins. Co. of Am., 202 N.J.Super. 195, 212-13 (App.Div.1985), cert. denied, 103 N.J. 453 (1986)). The “basic consideration [in awarding pre-judgment interest] “is that the defendant has had the use, and the plaintiff has not, of the amount in question; and the interest factor simply covers the value of the sum awarded for the prejudgment period during which the defendant had the benefit of monies to which the plaintiff is found to have been earlier entitled.”  County of Essex v. First Union Nat’l Bank, 186 N.J. 46, 61 (2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 506 (1974)).

Here, because the plaintiffs have been denied the use of their money from the moment the goods were stolen, the Court is satisfied that awarding pre-judgment interest is appropriate. Plaintiff is entitled to the pre-judgment interest on the damages from the theft on March 23, 2007 until the date of the filing of this motion. In federal question cases, “the rate of pre-judgment interest is committed to discretion of the district court.”  Sun Ship, Inc. v.. Matson Navigation Co., 785 F.2d 59, 63 (3d Cir.1986). In exercising its discretion the Court may look to the post-judgment interest rate set out in 28 U.S.C. § 1961. Id. Under 28 U.S.C. § 1961, the post-judgment interest is 5% per annum.Accordingly, the pre-judgment interest on $129,282.73 will be calculated at a rate of 5% per annum and default judgment for pre-judgment interest on the damages for the value of the lost goods will be entered in the total amount of $6,464.13.

Post-judgment interest is calculated at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the week preceding the date the theft of the merchandising occurred. 28 U.S.C. § 1961 (2000). The 1-year constant maturity Treasury yield for the week preceding March 23, 2007 was 4.93%. See http:/www.federalreserve.gov/releases/h15.

iii. Costs

Pursuant to Federal Rule of Civil Procedure 54(d)(1), costs other than attorney’s fees should be allowed to the prevailing party on a motion for default judgment. According to Local Civil Rule 54.1, in order to recover costs, the prevailing party shall within thirty days of this opinion serve on the attorney for the adverse party and file with the Clerk a Bill of Costs and Disbursements. Here, plaintiffs claim they incurred costs in the amount of $350 for the filing of this action. (Goldstein Decl. at ¶ 6.) Assuming that plaintiffs serve the appropriate Bill of Costs and Disbursements to the defendant and the Clerk and comply with the other provisions of Local Rule 54.1, default judgment is granted in the amount of $350. SeeLocal Civil Rule 54.1.

CONCLUSION

For the preceding reasons, the Plaintiff’s motion for judgment by default is granted. Judgment is entered in the amount of $136,096.86.

United States District Court,N.D. New York.

Paul WILLIAMS and Arthur Williams, Plaintiffs,

v.

SMITH AVENUE MOVING CO.; Estate of Frederick G. Faerber; Gary Faerber; Smith Avenue Storage Co.; Bonnie Coliukos; Robert Faerber; and North Star Auction Galleries, Inc., Defendants.

No. 1:06-CV-1120.

Oct. 21, 2008.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Plaintiffs Paul Williams and Arthur Williams (collectively “plaintiffs”) bring this action against defendants Smith Avenue Moving Co. (“Smith Moving”), Smith Avenue Storage Co. (“Smith Storage”), the Estate of Frederick G. Faerber (“the Estate”), Bonnie Coliukos (“Ms.Coliukos”), Gary Faerber, Robert Faerber, and North Star Auction Galleries, Inc. (“North Star”). Plaintiffs assert five causes of action against Smith Moving, Smith Storage, the Estate, and Ms. Coliukos: (1) breach of contract; (2) violation of the Truth in Storage Act; (3) conversion; (4) unjust enrichment; and (5) replevin. Plaintiffs assert three causes of action against Gary Faerber, Robert Faerber, and North Star: (1) conversion; (2) unjust enrichment; and (3) replevin. Smith Moving, Smith Storage, the Estate, and Ms. Coliukos cross-claimed for indemnification and/or contribution against Gary and Robert Faerber.North Star brought a cross-claim against Gary and Robert Faerber for indemnification, contribution, or apportionment of damages. Finally, Gary and Robert Faerber cross-claimed against Smith Moving, Smith Storage, the Estate, and Ms. Coliukos.

Plaintiffs move for partial summary judgment for liability pursuant to Federal Rule of Civil Procedure 56 against all defendants except Smith Moving. The defendants oppose this motion. Additionally, North Star cross-moves for summary judgment against Gary and Robert Faerber for negligent misrepresentation and indemnification. The said defendants did not oppose the cross-motion. Oral arguments were heard July 29, 2008, via video conference between Utica and Albany, New York. Decision was reserved on plaintiffs’ motion. North Star’s cross-motion was granted.

II. FACTS

In July and November of 2003, plaintiffs hired Smith Moving to transport their personal property from the Skinner Gallery and All Star Moving & Storage to Smith Storage. Plaintiffs have an itemized list of their possessions transferred in July 2003. Plaintiffs also have a copy of the Bill of Lading, an inventory of the boxes moved, and photos of their personal property moved in November 2003. For nearly three years, plaintiffs paid Smith Storage to store the property. Plaintiffs have submitted copies of the bills.

Prior to February 2004, Bernice Faerber owned Smith Storage and the real property where the company was located. In February 2004, Bernice Faerber died. After her death, Frederick Faerber and his sons, Gary Faerber, Robert Faerber, and daughter Patricia Whittaker jointly owned the real property. Frederick Faerber, his wife, and another daughter, Ms. Coliukos, operated Smith Storage. On February 3, 2004, Frederick Faerber sent a letter to Paul Williams regarding a change in the storage bills. Ms. Coliukos opened a bank account in her name to deposit storage fees and pay the bills. Plaintiffs received and paid at least twenty storage bills after Bernice Faerber’s death. Gary and Robert Faerber did not assist in operating Smith Storage.

In 2004, Gary Faerber replaced the locks on the buildings at Smith Storage. For approximately two weeks, neither Ms. Coliukos nor Frederick Faerber had access to the buildings. Smith Storage’s customers did not receive any notice of Gary Faerber’s conduct. Subsequently, Gary Faerber gave Ms. Coliukos and Frederick Faerber keys to the new locks and all three had access to the buildings at Smith Storage. On March 28, 2006, after Frederick Faerber’s death, Gary Faerber again replaced all of the locks at Smith Storage. After changing the locks, Gary and Robert Faerber removed stored property from Smith Storage. Gary Faerber asserts that “it was [his] fervent belief” that the removed property belonged to his mother. Gary Faerber consigned that property to North Star representing that he owned it. For the sale of any property, North Star received twenty percent and the remaining proceeds were paid to the consignor. For the March 2006 consignment, Gary Faerber received $8,896, which he endorsed to Robert Faerber.

On March 29, 2006, Ms. Coliukos notified Smith Storage’s customers of Frederick Faerber’s death and the discontinuation of the storage business. In her letter, Ms. Coliukos asked customers to move their property by May 1, 2006. On April 24, 2006, Paul Williams contacted Ms. Coliukos regarding moving plaintiffs’ personal property. Ms. Coliukos told him that she did not have access to the property and that he should contact Gary Faerber’s attorney Daniel Heppner. Paul Williams called Mr. Heppner and Gary Faerber joined the conference call. During the phone call, Paul Williams stated that he had property stored at Smith Storage.

In June and August of 2006, Gary Faerber consigned additional personal property from Smith Storage to North Star. Prior to removing the property, Gary Faerber states that he placed a legal notice in the local paper because he did not know if the property belonged to other people. According to Gary Faerber, some items stored at Smith Storage were retrieved by their owners. Despite Paul Williams’ phone call in April 2006, Gary Faerber did not attempt to contact Paul Williams to determine if any of the remaining property belonged to him. According to North Star, Gary Faerber asserted that the property was abandoned and the owners had not paid their storage fees. Some of this property was sold and the proceeds were paid directly to Robert Faerber.

On September 19, 2006, Paul Williams brought an action for breach of contract, conversion, unjust enrichment, and fraud against Smith Moving, the Estate, and Gary Faerber. In November 2006, Arthur Williams also became aware that some of his property was listed on North Star’s website. On November 21, 2006, plaintiffs sent a letter to North Star to cease and desist selling the property. North Star cancelled the auction and entered into a stipulation that they would not sell the property pending further litigation. In January 2007, a second stipulation was entered allowing the plaintiffs to take possession of the contested property being held by North Star. After the second stipulation, the plaintiffs received some, but not all, of the property that they had stored at Smith Storage. On May 31, 2007, plaintiffs amended their complaint adding Arthur Williams as a plaintiff, and North Star, Smith Storage, Ms. Coliukos, and Robert Faerber as defendants.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

When the moving party has met its burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.”  Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”Fed.R.Civ.P. 56; Liberty Lobby, Inc. ., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356.

B. Breach of Storage Agreement (Smith Storage, the Estate, and Ms. Coliukos)

Where a person gives consideration to another for storage of personal property, a bailment for mutual benefit is created. See  Aronette Mfg. Co. v. Capitol Piece Dye Works, Inc., 6 N.Y.2d 465, 468, 190 N.Y.S.2d 361, 160 N.E.2d 842 (1959). Here, it is undisputed that the plaintiffs made payments to Smith Storage to store property. Therefore, a bailment for mutual benefit existed between plaintiffs and Smith Storage. Ms. Coliukos and the Estate contend that they did not become owners of Smith Storage after Bernice Faerber’s death, and therefore, they can not be held responsible for the bailment. However, even assuming that plaintiffs did not and can not establish a transfer of ownership, that defense is invalid. Frederick Faerber and Ms. Coliukos solicited and accepted payments from the plaintiffs. On February 3, 2004, Frederick Faerber sent a letter to Paul Williams regarding a change in the storage bills. Ms. Coliukos opened a bank account in her name to deposit the checks received by Smith Storage. Moreover, plaintiffs received and paid at least twenty storage bills after Bernice Faerber’s death.

In addition to accepting payments, Frederick Faerber and Ms. Coliukos also assumed the responsibility of the bailment by continuing to store the plaintiffs’ personal property. Although there was no explicit transfer or assignment of rights, based on their actions, both defendants assumed the benefits and liabilities of the bailment. Therefore, even if their contention that they did not own the storage company is accurate, it is irrelevant. A bailment for mutual benefit existed between the plaintiffs and Smith Storage, the Estate, and Ms. Coliukos.

To recover for a breach of a bailment for mutual benefit, a plaintiff has the initial burden of proving that a defendant failed to exercise the degree of care which a reasonably careful owner of similar goods would exercise under the same circumstances. Castorina v. Rosen, 290 N.Y. 445, 447, 49 N.E.2d 521 (1942). However, a failure to produce stored goods establishes a presumption of negligence and the burden shifts to a defendant to provide an explanation for the non-delivery of a plaintiff’s property. Dalton v. Hamilton Hotel Operating Co., 242 N.Y. 481, 488, 152 N.E. 268 (1942). Where a defendant provides an explanation for its failure to delivery a plaintiff’s property, the burden shifts back to the plaintiff to show that the defendant failed to exercise reasonable care. Id.

Here, plaintiffs presented an itemized list of their possessions transferred in July 2003. Plaintiffs also submitted a copy of the Bill of Lading, an inventory of the boxes moved, and photos of their personal property moved in November 2003. Defendants have not produced plaintiffs’ possessions listed in these documents. Therefore, the burden shifts to the defendants to explain this failure. These defendants assert that Gary Faerber’s conduct explains the loss of all of the stored goods, even those not recovered from North Star. The plaintiffs state that these defendants have not supplied an explanation for the goods not recovered from North Star. Viewing the facts in a light most favorable to the non-moving party, the defendants’ explanation is sufficient with regard to all of the items, not just those recovered from North Star. Accordingly, the burden shifts to the plaintiffs to establish that these defendants failed to exercise reasonable care.

Plaintiffs have established that Ms. Coliukos and Frederick Faerber were aware that Gary Faerber changed the locks on Smith Avenue Storage in 2004. The defendants did nothing to re-secure the facility. Ms. Coliukos also admitted that Gary Faerber retained keys to the facility after changing the locks. The defendants did not notify any of the customers about this breach of security. Defendants assert that none of the plaintiffs’ possessions were removed at this time, and, therefore, their inaction is irrelevant. However, the defendants were aware of Gary Faerber’s conduct in 2004 and took no steps to prevent him from accessing and removing property.

This failure allowed Gary Faerber to have access to the warehouses. In March 2006, Gary Faerber again changed the locks of the facility. Thereafter, Gary Faerber removed stored property and consigned it to North Star. Although Ms. Coliukos sent a letter to the customers of Smith Storage requesting that they retrieve their belongings, in that letter she again failed to mention the breaches of security. She also did not make any attempt to re-secure the facilities. Further, although Ms. Coliukos has stated that she contacted the police, there is no evidence supporting that assertion. Finally, the other evidence that Ms. Coliukos references to show that she exercised reasonable care occurred after Gary and Robert Faerber removed the property and, therefore, is not relevant. Since defendants have submitted no evidence to show they exercised reasonable care in storing the plaintiffs’ property, no genuine issue of fact exists.

Therefore, partial summary judgment against these defendants for breach of storage will be granted.

C. Violation of Truth in Storage Act (Smith Storage, the Estate, and Ms. Coliukos)

Under the Truth in Storage Act, “[i]t shall constitute an unlawful detention of goods for a warehouseman to refuse to surrender household goods stored by him for a consumer bailor upon payment by the consumer bailor of the storage charges permitted by this article.”N.Y. Gen. Bus. L. § 608 (McKinney 2008). Smith Storage, the Estate, and Ms. Coliukos did not return the plaintiffs’ possessions despite the fact that the plaintiffs had paid all storage charges and sought the return of their belongings. However, plaintiffs have not presented evidence showing that these defendants “refused” to return the plaintiffs’ possessions, in as much as they were unable to do so.

Therefore, partial summary judgment for violation of Truth in Storage Act will be denied.

D. Conversion

1. Smith Storage, the Estate, and Ms. Coliukos

[10][11][12] For a bailment for mutual benefit, if the bailee has established an explanation for its failure to deliver, a plaintiff must establish all of the traditional elements of conversion. I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 665, 431 N.Y.S.2d 372, 409 N.E.2d 849 (1980). To maintain a claim for conversion, a plaintiff must show a defendant’s “exercise of unauthorized dominion over the property of another in interference with a plaintiff’s legal title of superior right of possession.”  Lopresti v. Terwilliger, 126 F.3d 34, 41 (2d Cir.1997). Smith Storage, the Estate, and Ms. Coliukos exercised authorized dominion over plaintiffs’ property as bailees until Gary Faerber began to exercise dominion over the property. Although it may be true, as the plaintiffs assert, that the negligence of these defendants permitted the conversion by other defendants, a claim for conversion requires intentional interference with a plaintiffs’ superior right of possession.

Since the plaintiffs have presented no evidence that Smith Storage, the Estate, and Ms. Coliukos intentionally exercised unauthorized dominion over plaintiffs’ property, partial summary judgment against these defendants for conversion will be denied.

2. Gary and Robert Faerber

[13] As for plaintiffs’ claim of conversion against Gary and Robert Faerber, the plaintiffs have presented evidence that these defendants exercised unauthorized dominion over plaintiffs’ property. As already discussed, plaintiffs have submitted documentation supporting their ownership interest. Defendants assert that the property belonged to their mother, but they present no admissible evidence to support that assertion. Additionally, Gary and Robert Faerber offer no evidence that plaintiffs authorized the movement or sale of this property. Based on their own admissions, Gary and Robert Faerber removed the property stored at Smith Storage and they delivered the property to North Star to sell.

[14] Gary Faerber also argues that they should not be liable because his consignment of the property was done in “good faith” based on the belief that the property belonged to his mother. However, good faith is not a defense to conversion. Lopresti, 126 F.3d 34 at 42.

[15] These defendants also assert that this motion should be denied because the plaintiffs have not provided sufficient evidence proving that the stored property belongs to them. This argument is irrelevant. Again, plaintiffs have submitted documentation supporting their right to the property. Further, it is well established in New York law that a bailee can not deny a bailor’s title as an excuse for refusing to redeliver the property. Barnard v. Kobbe, 54 N.Y. 516, 520 (1874). It would be a distortion of this well-established rule to allow a third party who took unauthorized possession to assert a greater right than a lawful bailee. Moreover, if the property did belong to a non-party, defendants’ assertion is irrelevant. Even if a non-party has a superior ownership interest in relation to these plaintiffs, that does not affect the rights of these defendants. U.S. v. Haqq, 278 F.3d 44, 50-51 (2d Cir.2002) ( “[T]he well-settled common-law rule is that a thief in possession of stolen goods has an ownership interest superior to the world at large, save one with a better claim to the property.”) (internal citations omitted).

Finally, Gary and Robert Faerber also assert that this motion should be denied so that they may continue discovery. As noted by Magistrate Judge Randolph F. Treece when denying an extension, the defendants had ample time for discovery. Further, these defendants seem to be attempting to establish through discovery that some non-party has a superior ownership interest. As noted above, such information is irrelevant.

Since there is no question of material fact, partial summary judgment against these defendants for conversion will be granted.

3. North Star

Like Gary and Robert Faerber, North Star asserts that this motion should be denied because they believe that the plaintiffs have not established ownership. However, as described above, that defense is invalid because plaintiffs have a superior right of possession as compared to North Star.

[16] North Star also argues that there exists a question a fact as to whether this property was abandoned. North Star bases this assertion on Gary Faerber’s statement that the plaintiffs had not paid their storage bill. That statement, however, was false. Plaintiffs had in fact paid all of their bills. Therefore, North Star fails to present any evidence that the property was abandoned.

Finally, North Star admitted in its response to plaintiffs’ statement of undisputed facts that: “Gary Faerber and Robert Faerber had consigned the property stored by plaintiffs at Smith Avenue Storage to North Star for auction.”

Therefore, partial summary judgment against North Star for conversion will be granted.

E. Unjust Enrichment

1. Smith Storage, the Estate, and Ms. Coliukos

[17][18] For an unjust enrichment claim, the plaintiff must show that “it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.”  Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695 (1972) (internal citation omitted). Smith Storage, the Estate, and Ms. Coliukos assert that they have not retained possession of any of plaintiffs’ property. Plaintiffs contend that these defendants retain possession of some of their property not recovered from North Star. However, plaintiffs fail to present any evidence supporting this assertion.

Since there is a material question of fact regarding possession of the property, partial summary judgment against these defendants for unjust enrichment will be denied.

2. Gary and Robert Faerber

[19] As for Gary and Robert Faerber, plaintiffs have submitted evidence that these defendants received money from the sale of their possessions. Defendants again assert that the plaintiffs must prove ownership of the property sold. However, these defendants again fail to provide any evidence that they have a superior ownership interest in relation to these plaintiffs. As these defendants removed property, even after receiving a phone call from one of the plaintiffs who was trying to track down his property, equity and good conscience do not support them.

Therefore, partial summary judgment against these defendants for unjust enrichment will be granted.

3. North Star

[20] North Star retained twenty percent of the proceeds from the sales of these items. North Star does not introduce any evidence that it has a superior ownership right in comparison to the plaintiffs. Although this defendant relied on the representations of others and took appropriate steps to stop the sale of goods when contacted by the plaintiffs, equity and good conscience still does not support North Star retaining the money it received by auctioning these items without the consent of the plaintiffs.

Therefore, partial summary judgment against North Star for unjust enrichment will be granted.