Julius Bailey (hereafter "the plaintiff") seeks to recover $1,492 from the defendant Suffolk County (hereafter "the County") for damages to his automobile incurred while in the County's exclusive possession and control. The County has interposed an application, dated May 28, 2010, seeking dismissal of the complaint upon the sole ground of "release of liability." Said application was deferred and will be decided in conjunction with the disposition of the small claims action as is the custom and practice of the Court and the law in this jurisdiction. See A & J. Enter. Solutions, Inc. v. Bus. Applications Outsourcing Tech., Inc., 11 Misc 3d 173 (Nas. Co. Dist. Ct. 2005).

The officer breathalyzed the plaintiff at both the roadside and precinct with a 0.00 reading being obtained . The officer disputed the sufficiency of the breath samples provided and the [*2]accuracy of the breathalyzer results, and reported that the plaintiff refused to properly submit to a breathalyzer test. The plaintiff's New York driver's license was statutorily revoked pending a New York State Department of Motor Vehicle (hereafter DMV) "refusal hearing" and his vehicle was impounded by the defendant Suffolk County Police Department. While not conceded, the County does not challenge the plaintiff's assertion that he requested a blood test to confirm he was not drinking and was refused.

During the plaintiff's DMV refusal hearing, the police officer failed to appear and plaintiff's license was reinstated. On October 6, 2009, at plaintiff's request, a "vehicle

seizure/return hearing" was held pursuant to Suffolk County local law before a Hearing Officer, who was appointed and compensated by the defendant. The parties could not reach a consent agreement for the vehicle's return as the County insisted that the plaintiff install a alcohol ignition disconnect device in the vehicle which the plaintiff refused. After an abbreviated hearing, the hearing officer (hereafter "HO") ordered the County to return the vehicle to the plaintiff premised upon a finding of a defective complaint and the County's failure to set forth probable cause for the arrest and impound. (See p. 12 ll. 23-25 of Administrative Hearing Transcript of Oct. 6, 2009). The HO, as an afterthought, also required that the plaintiff pay the County's storage and towing charges. After subsequent prompting by the County Attorney, the HO also directed plaintiff to "sign a release" to obtain the impounded vehicle. Immediately after the hearing, the plaintiff signed a signature page for a General Release offered to him by the prosecuting Assistant County Attorney. The statute of limitations for the County to seek forfeiture of the plaintiff's vehicle has expired.

On October 8, 2009, the plaintiff went to the impound lot to retrieve his vehicle. The plaintiff alleges that this vehicle was damaged while under the care of the County and no longer was operable. The plaintiff contacted the police department's claims office and was directed to file a detailed claim which was done. After almost eight weeks, the claims department had not forwarded the claim to the risk/management department for an insurance policy review. The claims department employee in charge of the matter admitted that, despite over a dozen telephone call assurances that the file was being investigated, the matter was not forwarded to the County's risk management department, as per County policy. It was also admitted that the entire claim investigation consisted of only one telephone call to the impound yard.

The threshold dispositive factual issue involves the plaintiff's contention that he did not actually sign a completed General Release of claims form, rather he signed only a signature page which he believed was required to release his vehicle from the impound yard. The plaintiff acknowledged his signature upon a single page now affixed to a General Release, but asserts he was never shown the previous page which contains the General Release provisions. He notes that nothing on the signature page indicates the existence of prior pages or that he is releasing Suffolk County from liability. The County's posture is that the plaintiff was advised to retain counsel and was given an opportunity to review all the release pages although it concedes that he [*3]was not provided with a copy to take home as it is the County Attorney's practice to mail the forms sometime thereafter.

The Court adopts the plaintiff's recitation of the facts surrounding his signing of the release, as true. The Assistant County Attorney testified that many matters are scheduled on her impound calendar and that she is very busy and efficient in her approach to executing documents to release a vehicle which she undertakes immediately after the individual hearing.

While not intentional, it is more probable than not that the plaintiff's attention was not directed to the actual release provisions page. It is conceded that neither the County nor the HO verbally advised the plaintiff that he was releasing them from liability. A review of page 13 of the hearing transcript provides:^[FN1]

The Court: this proceeding is dismissed. The car is returned.

The Court: But you have to pay storage charges. You have to pay the towing and storage charges to get the car back.

The Respondent: I just need to know how much money I need to go there with.

Ms. Green: You have to sign a release for the truck.

The Court: Yes, and you have to sign a release to get the car back.

The Respondent: A release?

The Court: Yes.

The Respondent: Okay. (Whereupon, this hearing was concluded at 11:33 a.m.). Emphasis added.

The Legal Issues Presented

The County contends that its advise for the plaintiff to hire an attorney is a sufficient basis to uphold the general release even if he did not understand it or see all its provisions. The Court disagrees as the law "is well settled that the meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given. A release may not be read to cover matters which the parties did not intend to cover". B.B.S. Treated Lumber Co. v. Groundwater Technology, Inc., 256 AD2d 430 (NYAD 2d Dept. 1998), citing Dillon v. Dean, 236 AD2d 360 (NYAD 2d Dept. 1997). A general release is a contract, arising out of a settlement and it is thus governed by the principles of contract law. Manqini v. McClara 24 NY2d 556 (NY 1969). This means that there must be consideration, and the plaintiff must have entered the contract voluntarily and with an understanding to the terms of the contract. A valid contract requires a "meeting of the minds" between the parties, and this [*4]applies to the subject General Release. In this instance the matter was not settled by mutual agreement as the vehicle release was effected solely via administrative determination.

The County's fall back argument that the HO's directive to "sign a release" justifies enforcement of the general release is also unavailing. The Court finds as a matter of fact that the HO's direction to sign a release was consistent with the plaintiff's contention that it was a document to "release the car" not to release the County from liability. To hold otherwise would violate the black letter holding that the due process provisions of the 14th Amendment of the United States Constitution mandates a prompt post seizure DWI forfeiture probable cause hearing before a "neutral judicial administrative officer". Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002); See also Nassau County. v. Canavan, 1 NY3d 134 (NY 2003). Emphasis added. It is not even a colorable argument to assert that the HO was acting in a neutral judicial capacity if in fact he ordered the execution of a general release after he released the car and made a finding of lack of probable cause for arrest and impound.^[FN2] Accordingly, the Court dismisses the County's affirmative defense of "Release" of liability.

The plaintiff contends that the County was negligent in its seizure, towing and storage of his impounded motor vehicle. The County produced no witnesses to controvert the plaintiff's negligence related testimony but avers that it does not know the pre-seizure condition of the vehicle and has no knowledge of what happen to it while in its custody and control. Premised thereon, they assert that the plaintiff has not borne his burden of proof to prove the elements of a negligence cause of action. Such a posture is also unfounded in fact and law. The plaintiff has testified that his vehicle was operational albeit not optimally operable. The County's agent, its police officer, formally charged the plaintiff with "operating" a motor vehicle on a public highway in a intoxicated condition. (Exhibit A2). It can not now claim the vehicle was not operable.

The doctrine of "res ipsa loquitur" holds that where the instrumentality that caused the damage was in the exclusive control of the municipality, and it is the kind that does not occur in the absence of negligence; the fact finder is permitted to draw an inference of negligence against the municipal party controlling the instrumentality. Fiorella v. Town of Huntington, 23 Misc 3d 1110(A) (Suffolk County Dist. Ct. 2009), citing Martinez v. City of New York, 292 AD2d 349 [*5](NYAD 2d Dept. 2002). See also Moreson v. Rais Constr. Co., 7 NY3d 203 (NY 2006). Once the County undertook to seize and exclusively possess the plaintiff's vehicle, it undertook a duty of care and the necessity to rebut the plaintiff's affirmative charge that it negligently allowed for the damage to his vehicle. In this instance, it proffers no explanation or denial of negligence. Accordingly, the Court finds that the plaintiff has established an unrebutted prima facie cause of action in negligence against the County.

The plaintiff's establishment of damages is more problematic. The plaintiff has produced four paid bills. Two are for replacing two engine drive belts ($67.55) which were removed; ($175) for towing from the impound yard and a ($20) transportation charge to retrieve the keys for the vehicle which were not sent to the impound yard. The Court awards these pursuant to UDCA Sec. 1804 for a total of $262.55. Pursuant to this statute, the plaintiff also seeks recoupment of damage to the front end utilizing two estimates. The Wall Street Car Care estimate is $803.88. The MJG Services estimate is for $1,165.54. The MJG estimate includes $430 to repair two front struts which are not included in the Wall Street estimate. This sum is deducted from the $1,165.54. MJG estimate which establishes it at $685.54, which the Court determines is reasonable. See Wai-Sun Chen v. Unique Food & Vending Serv., Inc., 2002 WL 31055592 (App. Term. 2d & 11th Jud. Dist. 2002) for two estimate rule on proof of damages.

Accordingly, the Clerk is directed to enter judgment for $948.09 plus costs and interest from the complaint date for the plaintiff, as against the defendant. It is noted that the plaintiff would have been entitled to recover the towing and storage charges paid to the County, but that same were not requested in his complaint or at trial.

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J.D.C.