Case 4: Waissmn 1'. City omer York, 360 N.Y.S.2d 393 (NIH. Civ. Ct. 2009} (Prcnkert, 13"] Ed.. p. 2315) (Chap 23) In EDGE. Ken "Weissman rented storage space at the 1West 1'ch Street Boat Basin. which is owned and operated by the City of New York Parks 3:: Recreation Department. The written agreement contained an exculpatoiy clause that stated: I understand that the City of New York Parks 3:: Recreation Department will not be responsible for any damages incurred to my vessel while at the dinghy dock or while in the facility at the Tgth Street Boat Basin. and that I store my vessel at my own risk. The policy and practice at the facility was that users would store their vessels in an enclosed cage-like structure that had storage bins. Each user had a key to the storage area and had unrestricted access. "Within the cage. users could fuither secure their vessels to the bin with their own devices such as chain and lock. In EDGT. 'Weissman had two brand-new kayaks stolen 'om the caged area. The lock to the caged area was intact but his kayaks and locks were missing. W'eissman reported this theft to the police. staff. and management. He indicated to the Boat Basin that he was no longer going to use the facility because of the theft. The manager of the facility spoke to him and urged him to continue to use the facility because they were changing their practice and policy by adding more security measures. Only 1West 'T-'Stth Street Boat Basin employees would have keys to the caged storage area. Users no longer had unrestricted access and would have to get an employee to escort them. open the lock. and admit them to the storage area. Security cameras were going to be installed. The Boat Basin posted a notice with the new changes. which said: Attention Kayak Owners Please see marina staff to gain access to kayak storage area. We have had a security issue and have temporarily changed the locks. We will be adding security cameras to the area shortly. We apologize for any inconvenience in the meantime. Based on the assurances by the manager that the security would be better. 1it'i'eissman purchased two used kayaks and again stored them in the caged area. He and the others no longer had keys to the area and had to be admitted and escoited by an employee to access the vessels in the storage area. On or about July 23. 200?. a week after the first two kayaks were stolen. one of 1tlifeissman's replacement kayaks. which cost $1.4. was missing from the storage area. He filed a notice of claim and then brought suit against the City of New York. seeking the value of the missing kayak and a refund of the unused portion of the storage fee. 1. The City of New York was not responsible for the theft of the two new Kayaks, because the West 79th Street Boat Basin was not the bailee of the new Kayaks. 2. The City of New York was responsible for the theft of the used Kayak, because users of the storage facilities in the West 79th Street Basin no longer had unrestricted access to the storage facilities and a bailment existed between the West 79th Street Basin and Weissman. 3. The West 79th Street Basin cannot be held liable for the theft of the used kayak, because of the language in the storage rental agreement stated the West 79 Street Basin was not responsible for damages to the vessel and Weissman agreed that he stored his vessel at his own risk. 4. If a bailment exists between the West 79th Street Basin and Weissman, the West 79th Street Basin is required return the goods in an undamaged condition to the bailor or to someone designated by the bailor upon the termination of the bailment. 5. If a bailment exists between the West 79th Street Basin and Weissman, it is a bailment for mutual benefits, and the West 79th Street Basin as bailee is required to exercise ordinary or reasonable care in safeguarding Weissman's used kayaks