R. BRENT ENGLISH
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DECISIONS OF INTEREST
13 Misc.3d 723, 827 N.Y.S.2d 485, 2006 N.Y. Slip Op. 26357 (N.Y.City Civ.Ct., Sep 08, 2006) (NO. 670/2006).
183 Misc.2d 462, 702 N.Y.S.2d 759, 2000 N.Y. Slip Op. 20042 (N.Y.Sup., Dec 10, 1999) (NO. 103372/98).
11 Misc.3d 1071(A), 816 N.Y.S.2d 697 (Table, Text in WESTLAW), Unreported Disposition, 2006 WL 777076, 2006 N.Y. Slip Op. 50462(U) (N.Y.City Civ.Ct., Mar 28, 2006) (NO. 4668/05).
318 N.J.Super. 63, 722 A.2d 991 (N.J.Super.L., Jul 20, 1998)(NO. DC-6488-97).
276 A.D.2d 516, 713 N.Y.S.2d 764, 2000 N.Y. Slip Op. 08565 (N.Y.A.D. 2 Dept., Oct 10, 2000) (NO. 2000-00248).
Malek v. Societe Air France
13 Misc.3d 723, 827 N.Y.S.2d 485, 2006 N.Y. Slip Op. 26357 (N.Y.City Civ.Ct., Sep 08, 2006) (NO. 670/2006).
Claimant brought this case in the Small Claims Part of the Civil Court of the City of New York, New York County, alleging breach of contract and deceptive business practices, and sought $4,999.00 in damages. Claimant missed his flight from Paris to New Jersey when the connecting flight arrived late in Paris. Air France re-routed Claimant to Kennedy Airport. Upon arrival, Claimant’s checked luggage was missing which included personal items such as camera equipment, a vase and some wine bottles. Claimant’s testimony at trial centered upon “inconvenience and exhaustion he suffered as a result of this eight-hour stay at the airport in Paris.” Id. at 487-488. Counsel for Air France argued that the Montreal Convention (successor to the Warsaw Convention) pre-empts state law claims for damage or delay to luggage.
The court found that Claimant did not prove that the provision reserving the right to substitute an alternate carrier was tantamount to a breach of a duty to use best efforts to route Claimant on an aircraft to Newark airport rather than J.F.K. Id. at 487. The court also found that under the limitation of liability set forth in the Montreal Convention, Plaintiff was “entitled to recover a total of [$1,000.00] for the damage to his luggage and for damages stemming from his delay.” Id. at 488.
Mohammed v. Air France
11 Misc.3d 1071(A), 816 N.Y.S.2d 697 (Table, Text in WESTLAW), Unreported Disposition, 2006 WL 777076, 2006 N.Y. Slip Op. 50462(U) (N.Y.City Civ.Ct., Mar 28, 2006) (NO. 4668/05).
Claimant fashioned religious objects out of materials “from the land” in Nigeria. Claimant returned to New York via Air France with a box containing the religious objects. Upon arrival, the box and its contents were missing, and as of the date of trial were not found. Claimant sued in the Small Claims Court for $5,000.00.
The Court concluded that inasmuch as the lost property occurred during international travel, Defendant’s liability is controlled by the Montreal Convention (successor to the Warsaw Convention). The Court found that the measure of damages for loss of personal property “is the actual value of such property taking into account the original cost and relative newness and the extent, if any, to which it has deteriorated or depreciated through use, damage, age, decay or otherwise.” Id. The Court further concluded that “the ‘actual value’ of the property is the ‘real value to [the] owner and of [the] loss by being deprived’ of the property, ‘not including, however, any sentimental or fanciful value [the owner] may for any reason place upon it.’ “ Id. (Internal citations omitted.)
The Court found that Claimant did not submit independent evidence of the value of the lost property either by expertise or production of comparable objects to sustain the claim, and awarded “nominal” damages in the amount of $10.00.
Bidetto v. Williams
276 A.D.2d 516, 713 N.Y.S.2d 764, 2000 N.Y. Slip Op. 08565 (N.Y.A.D. 2 Dept., Oct 10, 2000) (NO. 2000-00248).
Plaintiff commenced this action for injuries allegedly sustained in an automobile accident. A jury heard the case and Defendant requested that the matter be dismissed which the trial judge granted. Plaintiff appealed. The Appellate Division found that the “[t]reating physician’s conclusion that the injured plaintiff had suffered an injury to his neck and permanent injury to his back was insufficient, as matter of law, to establish that plaintiff suffered serious injury for purposes of No-Fault Law, where physician’s conclusion regarding neck injury was not based upon any objective medical tests and treating physician last saw the injured plaintiff more than two years before trial.” Id. at 516. The Appellate Division also concluded that “her ‘projections of permanent limitations have no probative value in the absence of a recent examination’ “. Id. at 517.
Norton McNaughton, Inc. v. Polar Air Cargo
183 Misc.2d 462, 702 N.Y.S.2d 759, 2000 N.Y. Slip Op. 20042 (N.Y.Sup., Dec 10, 1999) (NO. 103372/98).
Plaintiff initiated this action to recover damages resulting from a stolen shipment of goods. Plaintiff hired M.S.L. Express, Inc., to transport certain goods from Hong Kong to New York City. M.S.L. hired Westrans Air Express, Ltd., to coordinate transportation of the shipment from Hong Kong to J.F.K. International Airport. Westrans retained Polar Air Cargo to fly the clothing shipment to J.F.K. The air waybill issued identified M.S.L. as the consignee. M.S.L. also hired All Pro Trucking to retrieve the cargo from Polar Air Cargo and transport it to All Pro’s warehouse. The capacity of the truck used to convey the merchandise was only two of the three arriving pallets. The driver of the All Pro truck signed a carrier certificate reflecting receipt of three pallets intending to return later for the third. The two pallets were not delivered to the All Pro warehouse. Some of the merchandise was recovered some months later.
Polar Air petitioned the court for summary judgment to dismiss the complaint against it and to dismiss the cross-claims of M.S.L. asserting that it could not be held liable under the Warsaw Convention “because it was no longer in charge of the goods at the time they were stolen.” Id. at 465. The court denied the motion stating that Polar Air had not completed delivery of the goods at the time of the theft. The court also noted the presence of an issue of fact concerning “whether Polar Air negligently failed to take any necessary measures to secure the area from theft …” Id. at 466.
Ragonese v. Rosenfeld
318 N.J.Super. 63, 722 A.2d 991 (N.J.Super.L., Jul 20, 1998)(NO. DC-6488-97).
Plaintiff commenced this action against several defendants including Aerolineas Argentinas. Plaintiff sought to obtain jurisdiction over Aerolineas Argentinas arguing that the airline’s website provided sufficient minimum contact with New Jersey. Aerolineas Argentinas moved to dismiss the complaint for lack of personal jurisdiction.
After oral arguments, the Court determined that the “[f]oreign airline’s 800 telephone number advertisement in directory, combined with airline’s passive internet web page, did not constitute sufficient contact with New Jersey to exercise of personal jurisdiction over airline, in airline ticket purchaser’s suit alleging consumer fraud, unconscionable commercial practices, conversion, and breach of contract arising from failure to deliver ticket to boarding gate in New York airport.” Id. at 63. The court noted that Aerolineas did not directly aim its services to New Jersey or to the residents of New Jersey and concluded that the website is “passive”. Id. at 71.
R. Brent English, Attorney @ Law
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Phone: 212-962-3195
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