Civil Court, City of New York,

Kings County.

WENIG GINSBERG SALTIEL & GREENE, LLP, Plaintiff,

v.

PRECISION MOVERS, INC., Defendant.

Oct. 20, 2005.

DONALD SCOTT KURTZ, J.

This property damage action was tried by the Court without a jury on April 14th and 15th, 2005. The action arises out of an agreement entered into between plaintiff, a law firm, and defendant, a moving company, whereby defendant agreed to transport plaintiff’s office equipment, boxes, furniture, and supplies from its location at 31 Smith Street in Brooklyn to its new location at 26 Court Street in Brooklyn on December 27, 2003. The basis of plaintiff’s complaint is the damage to its copier, which both parties agree was rendered inoperable beyond repair.

Plaintiff claims that the damage to and ultimate demise of its copier was caused by employees of defendant and seeks money damages for costs incurred as a result thereof. Defendant claims that plaintiff failed to prove that the damage to the copier was caused by defendant’s employees and further claims that even if the Court finds that its employees did cause the damage to the copier, its liability is limited by the terms of its agreement with plaintiff to thirty cents ($0.30) per pound per article.

At the trial, each party called only one witness to testify. Plaintiff called Jeffrey Saltiel, an attorney and one of its principals, who was present throughout the move. Defendant called Martin Ruff, the managing director of a company that buys and sells printers and copiers. Mr. Ruff was called by defendant to give testimony regarding his experience with movers such as the defendant herein and regarding an inspection he made of the subject copier.

Plaintiff’s “Missing Witness Inference” Request

At the conclusion of the trial, after both sides rested, plaintiff made an application for a “missing witness inference” to be drawn against defendant since it did not call a witness to dispute the factual contentions of plaintiff’s witness, Mr. Saltiel. The “missing witness inference” permits, but does not require, the trier of fact to draw a negative inference from a party’s failure to call a particular witness at trial. See 318 East 93, LLC v. Ward, 276 A.D.2d 277 (1st Dept 2000), citingPeople v. Gonzalez, 68 N.Y.2d 424 (1986). The inference to be drawn would be that the testimony of the uncalled witness would not contradict the evidence offered by the opposing party. See N.Y. Pattern Jury Instruction 1:75. Here, the only factual evidence adduced at the trial with respect to the events in question came from Mr. Saltiel. Since Mr. Saltiel’s factual testimony was entirely credible and uncontroverted, the Court will accept his testimony as true and the “missing witness inference” is superfluous. The Court’s acceptance of Mr. Saltiel’s factual testimony does not, however, extend to his assumptions and conclusions.

Plaintiff’s request for a “missing witness inference” must be denied for another reason as well, that is, the request was untimely. “The burden, in the first instance, is upon the party seeking the … [inference] … to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy …” People v. Gonzalez, supra at 427,428; See People v. France, 265 A.D.2d 424, lv denied 94 N.Y.2d 823 (1999). Here, plaintiff was aware before the trial began that defendant’s former supervisor was in Colorado; that he would not be available to testify; and that defendant’s prior application to adjourn the trial so that the witness could appear had been denied. Moreover, pre-trial discussions between both counsel and the Court regarding witnesses and scheduling made it clear that defendant did not intend to call any other witnesses at the trial. Consequently, plaintiff’s request, made for the first time after both parties had rested, was untimely. See Thomas v. Triborough Bridge, 270 A.D.2d 336 (2d Dept 2000).

Findings of Fact

The credible and uncontroverted evidence adduced at the trial revealed the following: On or about December 23, 2003, plaintiff contacted defendant by telephone regarding the relocation of its offices from 31 Smith Street to 26 Court Street in Brooklyn. As a result of that conversation defendant faxed a letter to plaintiff’s representative, Jeffrey Saltiel, setting forth certain details of the move, for example, that the hourly rate is $100 per hour for a truck and crew of four movers; that the estimated cost was $900; that packing materials are charged additionally; that payment is due when the movers reach the second location; and that “$0.30 per lbs. per article is a basic valuation in transit that is already included in the cost of your move.”

On December 27, 2003, the day of the move, Mr. Saltiel, a number of his employees and a few of his partners were present at plaintiff’s offices on Smith Street when the four movers arrived. Prior to the move, the foreman had Mr. Saltiel fill out some forms and they discussed what was to be moved. Among the forms filled out and signed by Mr. Saltiel before the move began were an Order For Service form and a Uniform Household Goods Bill of Lading and Freight Bill. Both forms included a declaration of valuation for the shipment which Mr. Saltiel entered as “30> per pound per article.” In addition, each of these forms provides that “The shipment will move subject to the rules and conditions of the carrier’s tariff.” Defendant’s tariff, which was admitted into evidence by stipulation, provides in pertinent part:

Rule 20DECLARATION OF VALUE–LIABILITY LIMITATION …

(A) On shipments subject to HOURLY RATES published in this tariff:

When a shipment moves under hourly rates and is released to a value of 30 cents per pound per article, the base transportation rate will apply with no additional valuation charge. However, when the shipper declares a lump sum value for the entire shipment (which cannot be less than $2500), an additional valuation charge of 50 cents for each $100, or fraction thereof, of the released or declared value will be assessed….

Mr. Saltiel stated that he was aware of this limitation at the time he filled out these forms and made a decision at that time not to declare a higher value for the shipment.

Among the items to be moved was a Panasonic Digital Printer (hereinafter, “the copier”), which weighed approximately 300 pounds. Prior to the packing and moving of the copier, Mr. Saltiel had a discussion with the foreman regarding the machine. Mr. Saltiel advised the foreman that the machine had four handles and suggested that all four men move it at the same time, each holding a handle. The foreman assured Mr. Saltiel that he knew how to move the copier. Mr. Saltiel deferred to the foreman’s expertise and assurances and permitted the move to proceed.

The copier was wrapped in bubble wrap and cardboard on all six sides by defendant’s employees. It was then loaded onto defendant’s truck, transported to plaintiff’s new office location at 26 Court Street, unloaded from the truck, and brought to a storage room on the 26th floor at 26 Court Street at plaintiff’s request because its new offices on the 5th floor would not be available until February, 2004. It was unclear from the testimony whether or not any of plaintiff’s employees, who were at 26 Court Street to assist plaintiff with the move, helped move the copier from the truck unloading area to the storage room on the 26th floor.

After the copier was placed in the storage room on the 26th floor, it remained there for approximately seven weeks until the Saturday of President’s Day weekend in February, 2004, when the storage room was to be emptied. When the copier was unpacked, it was revealed that the machine had been turned upside down. It was also revealed that the toner cartridge, which had been left inside the copier, had leaked and emptied toner all over the machine. During the seven week period between the time the copier had been placed in the storage room, presumably by defendant’s employees, and the time it was unpacked by plaintiff, Mr. Saltiel, his partner, an office manager, as well as several of plaintiff’s employees had access to and had actually been to the storage room. Mr. Saltiel could not say with certainty when or by whom the copier was turned upside down. The copier was subsequently taken to a repair shop where it was determined to be unrepairable and was declared a total loss.

The evidence adduced at the trial with respect to the damages claimed by plaintiff as a result of the loss of use of its copier was that $11,295.45 was due in outstanding payments on the lease. The Buy-Out Agreement indicates that a residual charge of $3,023.87 was to be due at the end of the lease term. Plaintiff, rather than purchasing or leasing a replacement copier, handled its copying needs by using another copier. However, use, or overuse, of this second machine resulted in additional charges of $1,170.32 as well as a repair service charge of $749.51.

Martin Ruff, called by the defendant, testified that he has been involved in the business of buying and selling copy machines and acting as a broker for other buyers and sellers of copy machines for over forty years; that during that period of time, he has dealt with up to twenty different motor carriers; that in his experience, it is the buyer or seller of a particular machine that prepares it for transport by the moving company; that part of the preparation for transport is the removal of the toner cartridge; that toner cartridges are usually removed by a merchant’s service technician; and that moving company workers never remove toner cartridges. Mr. Ruff testified further that if a toner cartridge is not removed from a copier prior to transportation, the toner can spill out causing damage to the machine; that spillage can occur while the copier is being moved from one room to another or while being loaded onto the truck; and that it is not necessary for a copier to be turned upside down for toner spillage to occur.

Conclusions of Law

Both New York Transportation Law § 181 and its federal counterpart, 49 U.S.C.A. § 14706(previously § 10730) permit regulated motor carriers to limit their liability for loss, damage or injury to property to an agreed-upon, declared, or released value of the property. See Art Masters Associates, Ltd. v. United Parcel Service, 77 N.Y.2d 200 (1990); Windward Photos v. United Parcel Service, 230 A.D.2d 648 (1st Dept 1996). “In 1906, Congress enacted the Carmack Amendment [currently, 49 U.S.C.A. § 14706] permitting carriers to limit their liability to the declared or released value of goods so long as that declared value determined the shipping rates charged and an opportunity to declare a higher value was afforded [citation omitted].” Art Masters Associates, Ltd., supra at 208. “The New York State Legislature has consistently expressed an intent that intrastate motor carriers in this State be regulated under statutory schemes consistent with the Federal regulatory scheme relating to motor carriers engaged in interstate commerce….Given the close similarity between the Federal and State statutes under consideration and the common purpose served by the two statutes, it is consistent with sound principles of statutory construction, that the statutes be construed harmoniously [citations omitted].” Id. at 208, 209.

Federal courts as well as this State’s courts have held that in order to avoid the application of an agreed-upon limitation of liability, a shipper of goods must establish a true conversion, that is, a non-delivery of the goods resulting from the carrier’s affirmative, willful or intentional misconduct. See Lerakoli, Inc. v. Pan Am. World Airways, 783 F.2d 33 (2d Cir1986), cert denied, 479 U.S. 827 (1986); D’Utassy v. Barrett, 219 N.Y. 420 (1916);Rifkin v. Pologeorgis Furs, Inc., 160 Misc.2d 256 (N.Y. Sup App Term 1st Dept, 1994). “[W]here no such proof is forthcoming, the agreed-upon limitation of liability is enforced [citations omitted].” Art Masters Associates, Ltd., supra at 206.

In order for plaintiff to recover from defendant in this action, it would have had to establish three things first, that the copier was delivered in a damaged condition so as to render it unusable by plaintiff; second, what caused the toner spillage which resulted in the damage to the copier; and third, that defendant’s employees committed the act or acts which caused the toner spillage. Moreover, even if plaintiff had established all three items, in light of the State and Federal law governing carrier liability, in order for plaintiff to avoid the agreed-upon limitation of liability and recover the full amount of its claimed damages, it would have had to establish a fourth item that defendant’s employees acted wilfully or intentionally in causing the toner spillage. Based upon the credible evidence adduced at the trial, plaintiff has failed to establish any of the four items.

As to the first item, plaintiff has failed to establish the condition of the copier upon its arrival, either when it was removed from defendant’s truck onto the street outside 26 Court Street or, assuming it was brought up to the storage room on the 26th floor by defendant’s employees, its condition when it arrived at the storage room. The copier was not unpacked until some seven weeks after it was delivered. The Court would have to speculate that during that seven week period, the copier remained in the same condition it was in when it was delivered despite the evidence that during that extended period, plaintiff’s employees had access to the storage room.

As to the second item, plaintiff produced no evidence, expert or other, to establish what caused the toner to spill inside the copier. The only evidence offered by plaintiff was Mr. Saltiel’s testimony that he advised the foreman that the machine had four handles and suggested that the movers move the copier by using the handles; that the movers didn’t take his suggestion and totally encased the copier in bubble wrap and cardboard; and that when he unwrapped the copier in the storage room, he discovered that the copier was upside down and that the toner had spilled inside the copier. There was no evidence that had the movers taken Mr. Saltiel’s advice, the toner would not have spilled. Nor was there any evidence offered by plaintiff regarding whose responsibility it was, if anyone, to either remove the toner cartridge or to secure it to assure that it wouldn’t spill during transportation. The only evidence offered on these issues was by defendant’s witness, Mr. Ruff who testified that in his experience, toner cartridges are usually removed prior to moving; that it’s the shipper’s service technician who usually removes the cartridge; that copiers do not need to be turned upside down for there to be toner spillage; and that mere movement of the copier from one room to another or being loaded onto a truck could result in severe damage to the copier from toner spillage.

As to the third item, assuming, arguendo, that the toner spillage resulted from turning the copier upside down, plaintiff failed to establish that it was defendant’s employees who turned it upside down. It was not established when the copier was turned over or by whom. As previously indicated, it was unclear from the testimony whether or not any of plaintiff’s employees helped the movers transport the copier from the truck unloading area to the storage room on the 26th floor. Moreover, also as previously indicated, the copier remained in the 26th floor storage room for seven weeks after it was delivered, during which time plaintiff’s employees had access to the room.

Finally, as to the fourth item, even if the Court were to find that plaintiff proved the first three items, there was absolutely no evidence presented whatsoever to establish willful or intentional misconduct on the part of defendant’s employees. With respect to this item, plaintiff’s reliance on the case of I.C.C. Metals, Inc. v. Municipal Warehouse Comp., 50 N.Y.2d 657 (1980), is misplaced. In that case, involving the failure of a warehouse to deliver goods stored with it and the inability of the warehouse to offer more than speculation as to the reason the goods were missing, the Court of Appeals held “that proof of delivery of the stored property to the warehouse and its failure to return that property upon proper demand suffices to establish a prima facie case of conversion …” and divests the warehouse of the benefit of the liability-limiting provisions of the storage agreement. Id. at 660. The Court in I.C.C. Metals placed the burden upon the warehouse to come forward with evidence sufficient to prove that its failure to return the property did not result from its conversion of that property to its own use and thus overcome the presumption of conversion. However, in Art Masters Associates, Ltd., supra, the Court of Appeals expressly held “that the presumption of conversion articulated in I.C.C. Metals should not be extended to common motor carriers.”Art Masters Associates, Ltd., 77 N.Y.2d at 208. Consequently, without the benefit of a presumption of conversion, plaintiff would have had to establish a true conversion, that is, the appropriation of the property to defendant’s own use and beneficial enjoyment or an intentional destruction, rather than an accidental loss or destruction. See Salt Springs National Bank v. Wheeler, 48 N.Y. 492 (1872); Meise v. Wachtel, 54 Misc. 549 (N.Y..Sup 1907);Bowling Corp. of Plainview v. Long Island Nat. Bank, 57 Misc.2d 337 (N.Y. Dist Ct, 1968).

In view of the foregoing, the first, sixth, seventh and eighth causes of action contained in plaintiff’s verified complaint are dismissed for failure to prove a prima facie case. The third, fourth and fifth causes of action are dismissed for failure to state a cause of action and/or for failure to prove any damages resulting therefrom. The second cause of action is dismissed in that the disputed charge was adjusted and resolved by the parties prior to the trial. All motions upon which the Court reserved decision during the trial which are not decided herein are denied.

The foregoing constitutes the Decision and Order of this Court.