PLAINTIFF,                                                                   BY: HON. JOAN M. GENCHI

                                     Against                                       INDEX NO.

DEFENDANTS.                                                              DECISION AFTER TRIAL


 This matter came before this Court for trial on September 10, 1998, trial was continued on October 27, 1998 and concluded on March 17, 1999. Post-trial memorandums of law were file on May 18, 1999 by counsel for the defendant and on May 21, 1999 by counsel for the plaintiff

It is uncontroverted that the plaintiff, [omit], installed a burglar and fire alarm system at the premises known as [omit] pursuant to a written lease contract dated December 1, 1993. Under the terms of that lease contract, the alarm systems were to remain the personal property of the plaintiff and were not to become fixtures. Defendant,[omit], acquired the premises at a foreclosure sale sometime in 1996. The plaintiff now seeks damages from the defendant [omit] claiming conversion allegedly resulting from defendant's failure to return the alarm systems to plaintiff despite plaintiffs alleged demands to do so.

The purchaser at a foreclosure sale purchases only the right, title and interest in property that the mortgagee had (Horowitz v. Welt 22 AD 37). In this case, the alarm systems remained personalty of the plaintiff by virtue of its lease contract with the former owner of the premises, [omit]. The plaintiff entered upon the premises after defendant obtained title in foreclosure and did remove a portion of the alarm system in order to disarm it. Plaintiff allowed the rest of the alarm system to remain at the premises. Plaintiff thereafter submitted written proposals for the installation and servicing of a fire and a burglar alarm system to defendant [omit]. Said proposals were dated January 16, 1997. Said proposals were devoid of any demand for the return of the personal property at issue. Furthermore, the proposals contained no inventory of plaintiff s equipment alleged to be remaining at defendant’s [omit] premises nor any description of said equipment's operating condition.

However, said proposals did contain language indicating that some of the equipment was to be replaced or repaired. There was no writing in any way, shape or form to either defendant requesting that the plaintiff's personal property be returned. Plaintiff testified to an oral demand, however, the Court does not find this to be credible. Moreover, there was no writing at any time and in any way, shape or form to either defendant setting forth any inventory of the property remaining at the premises alleged to belong to defendant or of its condition.

Shortly after the plaintiff was informed by the defendant that the alarm services of a competitor had been retained, a petit larceny occurring at the premises was reported by the defendant to the Suffolk County Police Department. Curiously, the only property taken was certain alarm equipment which is in part, the center of this controversy.

The Court cannot help but be mindful that the theft took place after the plaintiff shut down the alarm system in order to prevent false alarms from occurring while the defendant renovated the premises, (Parenthetically, it was these false alarms which apparently alerted plaintiff to the fact that the premises was again occupied, thus triggering plaintiff s initial call upon the defendants.) and after plaintiff learned that defendant would not be using its services.

During the plaintiff's initial call upon defendants, plaintiff inspected the defendant's premises disarmed the alarm systems and subsequently prepared two proposals which were presented to defendant [omit]. The plaintiff offered testimony that the personalty was valued at $10,000.00. Defendant further testified that it was willing to absorb a $10,000.00 loss in order to secure the defendant as a customer, reassuring that such steps would bring future customer recommendations. The Court finds such testimony to be not only incredible, but also lacking in merit with regard to the issue of damages.

The actions taken by the plaintiff do not evidence the desires of one attempting to retrieve property. Rather, it suggests that plaintiff abandoned property which had little or no value. The plaintiff s paramount concern was to stop false alarms and garner a customer - not retrieve or demand the return of property. This is demonstrated by the proposals to the defendant, lack of demand for the return of the property, lack of an inventory and the lack of any reliable evidence put forth by plaintiff to establish actual damages. Despite the fact that the property remained the personalty of the plaintiff pursuant to the 1993 lease with [omit], the Court finds that the plaintiff did not demand its return or attempt to retrieve same (except for whatever plaintiff removed during its initial call upon defendant). Moreover, plaintiff failed to establish at trial the value of the equipment as it existed at the premises. Hence, defendant failed to prove damages (see Tanis

Foods v. Standard Importing Co., 149 NY2d 317) or even establish that it was "indeed damaged".

Any relationship the defendants had with the property was merely gratuitous. For liability to attach to either or both of the defendants for loss, a showing of gross or wanton negligence on the part of the defendants is needed. This has not been established by plaintiff (see Linares v. Edison Parking, 97 Misc 2d 831). The Court notes that it was the plaintiff who disabled the alarm system (a portion of which was subsequently stolen). The defendant took all reasonable steps to secure the property by way of door locks and by solicitation of bids for alarm systems and the eventual installation of an alarm system by a competing firm.

It is the opinion of this Court that the plaintiff has failed to prove its case by a fair preponderance of the credible evidence adduced at trial.

Judgment for the defendant with costs and disbursements.

Dated: 6/10/99 Signed

Joan M. Genci, J.D.C.