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Jasphy v. Osinsky

November 05, 2003

FELICE C. JASPHY, A/K/A ZTZIPI JASPHY, PLAINTIFF-RESPONDENT,
v.
ELANA OSINSKY, A/K/A ILANA SHOMRONY, ERNEST OSINSKY AND CEDAR LANE FURS, DEFENDANTS-APPELLANTS.



Before Judges Newman, Fall and Parrillo. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6002-01.

The opinion of the court was delivered by: Newman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 14, 2003

The limitation of liability clause in a fur storage agreement, limiting the liability of the furrier to $1 per garment, was struck down by the trial court as unconscionable. We agree and affirm.

The relevant facts which are not disputed may be summarized as follows. On March 27, 2001, plaintiff Felice Jasphy brought three fur coats to defendant Ilana Shomrony's (initially misidentified as Elana Osinsky) establishment trading as Cedar Lane Furs in Teaneck for storage and cleaning. The three coats included a ranch mink coat, a Shearling, and a blush mink. In addition to the storage of the three coats, plaintiff also sought cleaning of the ranch mink. In 1997, the ranch mink had been appraised for $11,500; the Shearling for $3500; and the blush mink for $3995.

Plaintiff signed a written agreement, labeled"fur storage sales receipt," which included plaintiff's name and address, and the price of the storage and cleaning. On the back of the receipt, the following pre-printed provision limiting defendant's liability read:

[t]his receipt is a storage contract, articles listed are accepted for storage until December 31, of dated year, subject to the terms and conditions hereof, in accepting this receipt, the depositor agrees to be bound by all its terms and conditions and acknowledges that this receipt is the entire agreement with the furrier, which cannot be changed except by endorsement herein signed by the furrier. If no value is specified, or if no separate insurance covering the garment is declared at the time of issuance of this receipt, insurance in the amount of $1.00 will be placed on the garment....

Immediately above the location on the receipt for a customer's signature, the following was printed:"I understand and agree that Cedar Lane Furs' liability for loss or damage from any cause whatsoever, including their own negligence or that of employees and others, is limited to the declared valuation." Plaintiff signed and dated this receipt on March 27, 2001.

Plaintiff did not state the value of the coats or declare whether she had separate insurance coverage when the receipt was issued. There is no identifiable room provided on the receipt to specify such information. The limitation of the furrier's liability was not brought to plaintiff's attention, nor was she asked to furnish the value of her coats for storage.

The following day, March 28, 2001, a fire swept through Cedar Lane Furs, causing plaintiff's three furs to be completely destroyed. A hot iron, which defendant apparently failed to unplug overnight, caused the fire. Plaintiff claims she subsequently had a conversation with defendant during which defendant informed plaintiff that her furs had not been in the fur vault on the night of the fire. According to plaintiff, defendant initially told her that the furs were safe and would be returned to her. By letter to defendant dated April 27, 2001, after learning the furs were a complete loss, plaintiff demanded full replacement value and expressed her desire for an amicable settlement.

Plaintiff received no response to this letter. On May 23, 2001, plaintiff's counsel sent a letter to defendant seeking an amicable resolution of the issue, but advising that legal action would be taken if the parties did not resolve the problem. Defendant responded by letter dated July 16, 2001, and enclosed a"Bailee's Customer's Affidavit Claim Form" for plaintiff to fill out and send to defendant's insurance company for reimbursement.

This letter to plaintiff stated in part"[c]ustomers who have purchased insurance through us will be compensated for the declared amount. Customers who carry insurance on their Home Owners policy or a"floater" policy covering the garment(s) are required to submit a claim to their insurance for reimbursement." In cases where customers separately insured their furs, defendant's insurance apparently served as a secondary or excess policy. Plaintiff submitted a claim form for each of her destroyed furs and returned the forms to defendant. Plaintiff never received any reimbursement from defendant's insurance company. Thereafter, plaintiff brought this action.

In moving for summary judgment, defendant sought enforcement of the contractual provision limiting liability to $1 per garment, and dismissal of the consumer fraud allegation. Judge Doyne denied summary judgment and held the limitation of liability clause in this bailment contract to be unenforceable. He made the following findings:

Nowhere on the form is there a space provided for a customer to fill in value. Defendants do not allege that their representative in any way highlighted these provisions, discussed these provisions with the customer, or in any way alerted the customer to the same.....

Defendants move for summary judgment on the ground that there was no value specified, and the insurance for each item is limited to one dollar per garment. It asserts the position that this is a bailment situation, and as such, ...


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