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DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, over a dissent, determined defendants were entitled to summary judgment in this parking lot slip and fall case. Defendants demonstrated they did not have notice that water pooled in the parking lot in the area where plaintiff allegedly fell on ice. The dissent argued that defendants did not demonstrate the formation of ice was not a recurring condition. The majority held that, because plaintiff did not allege the ice was a recurring condition, defendants did not have to present evidence on the issue:

The evidence submitted by the defendants in support of their motion established, prima facie, that they did not create the alleged black ice condition or have actual or constructive notice of it … . In particular, Picone’s [Picone worked at the property] statement in his affidavit that water did not pond in the parking lot during the 38 years he worked at the property necessarily addresses and excludes any recurring condition in the same lot. In opposition to the prima facie showing, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendants created the alleged condition or had actual or constructive notice of it. …

… .[T]he plaintiff failed to allege the existence of a recurring condition at the specific site of her fall. Thus, the defendants had no obligation, in support of their motion for summary judgment, to address the issue of a recurring condition. Further, in opposition to the motion, the plaintiff failed to argue that any recurring condition was specific to the location within the parking lot where she is alleged to have fallen … . Bader v River Edge at Hastings Owners Corp., 2018 NY Slip Op 01588, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EVIDENCE (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/RECURRING CONDITION (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

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SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT).

The Second Department, in a comprehensive decision dealing with several related issues not summarized here, determined a snow removal contractor (Cristi) and parking lot manager (Five Star) demonstrated their contracts with Port Authority did not give rise to liability for a slip and fall in the parking lot:

A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . …

The submissions in support of their respective motions show that neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be ” an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” …

The contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority’s general duty to keep the premises in a safe condition … . Castillo v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 01593, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, ESPINAL,  SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/SLIP AND FALL (ESPINAL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))

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SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that Supreme Court properly refused to consider a new theory raised for the first time in opposition to a summary judgment motion. Plaintiff alleged she slipped on a piece of trash on stairs. In opposition to defendants’ motion for summary judgment code violations and the absence of a handrail were alleged:

On their motion, the defendants established their prima facie entitlement to judgment as a matter of law by establishing that they did not create or have actual or constructive notice of the alleged dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact in this regard.

A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint … . As such, the Supreme Court did not err in declining to consider the plaintiff’s new theory of recovery, raised for the first time in opposition to the defendants’ motion, based on alleged building code violations related to the lack of a handrail on the subject staircase, since this theory was not pleaded in her amended complaint or set forth in her bill of particulars. Mazurek v Schoppmann, 2018 NY Slip Op 01601, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SUMMARY JUDGMENT (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))

QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT).

The Second Department determined the bar owner’s (SNMT’s) motion for summary judgment on the Dram Shop Act and negligence causes of action were properly denied. Plaintiff was struck by a bar patron (Coscia). There were questions of fact whether the patron was served alcohol while visibly intoxicated and whether the assault was foreseeable:

… [T]he Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the General Obligations Law § 11-101 cause of action, and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on that cause of action. The submissions of both parties revealed the existence of triable issues of fact as to whether the bar served alcoholic beverages to Coscia while he was visibly intoxicated, whether the bar served alcoholic beverages to Coscia when it had knowledge or reasonable cause to believe that he was under 21 years of age, and whether there was some reasonable or practical connection between the service of alcohol to Coscia and the plaintiff’s injuries … .

In addition, the Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the negligence cause of action. “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … . Here, SNMT failed to establish, prima facie, that the attack on the plaintiff was not foreseeable … . Tansey v Coscia, 2018 NY Slip Op 01633, Second Dept 3-14-18

NEGLIGENCE (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/ASSAULT, THIRD PARTY (DRAM SHOP ACT, NEGLIGENCE, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/BARS (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))

SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS, ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant insurance brokers’ (Praxis and HUB) motion to dismiss should not have been granted. Plaintiff settled with the insurer (Affiliated) on its breach of contract claim (which alleged the claim was wrongly denied). Plaintiff’s actions against the brokers alleged failure to procure the requested coverage:

… [T]he validity of Affiliated’s denial of the plaintiffs’ claim for property damage remains undecided, notwithstanding the fact that the plaintiffs settled this action with respect to Affiliated … . The complaint alleges that the denial was based on actions taken by Praxis and the HUB defendants. Should the plaintiffs prevail on their causes of action against Praxis and the HUB defendants, any damages they recover must necessarily be reduced by the amount of the settlement from Affiliated, in order to avoid a double recovery … . Prime Alliance Group, Ltd. v Affiliated FM Ins. Co., 2018 NY Slip Op 01630, Second Dept 3-14-18

INSURANCE LAW (SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BROKERS (INSURANCE) (FAILURE TO PROCURE REQUESTED COVERAGE, SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined that local laws governing the use of agricultural land did not violate the public trust doctrine:

The Supreme Court correctly determined that the public trust doctrine applied to the property interest at issue, namely, development rights in agricultural land, as the plaintiffs demonstrated prima facie that the County acquired these development rights for public use and not in its “corporate capacity” … . …

… [T]he County defendants demonstrated, prima facie, that the contested provisions in Local Law Nos. 52-2010 and 44-2013, namely, those concerning commercial horse boarding and equine operations, agricultural development permits for structures and alternative energy systems, maximum lot coverages and the hardship exemption thereto, agricultural tourism, special use permits to conduct a site disturbance or a special event, agricultural processing facilities, hay rides, and agricultural educational tours, did not waste public property or violate the public trust doctrine … . Long Is. Pine Barrens Socy., Inc. v Suffolk County Legislature, 2018 NY Slip Op 01598, Second Dept 3-14-18

ENVIRONMENTAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/PUBLIC TRUST DOCTRINE (LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/AGRICULTURAL LAND  (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/LAND USE (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))

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DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

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DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT).

The Second Department determined defendant was not warned of the deportation consequences of his guilty pleas. The matter was remitted to give the defendant the opportunity to move to vacate the pleas:

Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant’s pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … , and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his pleas of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Cole, 2018 NY Slip Op 01612, Second Dept 3-14-18

CRIMINAL LAW (DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))

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DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined a defamation action against an unincorporated association (the Grand Lodge of Free & Accepted Masons of the State of New York) was properly dismissed, but the defamation action against individuals acting in individual capacities should not have been dismissed. The court further held that the breach of contract action against the association should not have been dismissed. The action was brought against a lodge after plaintiff was accused of fraud and was expelled:

Actions against unincorporated associations, whether for breaches of agreements or for tortious wrongs, are limited to cases where the individual liability of every single member can be alleged and proven … . The Martin rule “bars all actions against an unincorporated voluntary membership association, and bars claims against the officers of such an association in their representative capacities where there is no allegation that the members of the association authorized or ratified the wrongful conduct complained of” … .

Here, the plaintiff made no factual allegations in the complaint or in opposition to the motion to dismiss to indicate that all members of the Grand Lodge did in fact ratify the allegedly defamatory statements. …

… [T]he Martin rule does not purport to immunize individual members of an unincorporated association, acting in their individual capacities, from the consequences of their own tortious conduct… . …

Moreover, the Martin rule does not preclude breach of contract causes of action against unincorporated associations and their officers acting in their representative capacities based on an allegedly wrongful expulsion from the association … . Bidnick v Grand Lodge of Free & Accepted Masons of the State of N.Y., 2018 NY Slip Op 01591, Second Dept 3-14-18

CORPORATION LAW (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/UNINCORPORATED ASSOCIATIONS (MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MARTIN RULE (UNINCORPORATED ASSOCIATIONS, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW  (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MASONS (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s recovery for injury to a kitten shipped by air was subject to the $50 limit in the air waybill signed by plaintiff:

An air waybill forms the basic contract between a shipper and an air carrier … . In order to enforce a limited liability provision contained in an air waybill, a carrier must demonstrate that its contract satisfies the released-valuation doctrine … . Under the released-valuation doctrine, the shipper “is deemed to have released the carrier from liability beyond a stated amount” in exchange for a low shipping rate … . The shipper is bound by the limited liability provision if he or she (1) has reasonable notice of the rate structure, and (2) is given a fair opportunity to pay a higher rate in order to obtain greater protection … . … The fact that the language setting forth the limited liability provision is found on the reverse side of the air waybill does not render the provision unable to satisfy the released-valuation doctrine … . …

Here, the air waybill signed by the plaintiff’s shipper demonstrates that the shipper did not declare a value for the kitten and no additional coverage was purchased. The terms of the air waybill also provided a fair opportunity to purchase greater coverage … . …… [T]he plaintiff had the burden of showing that she did not have a fair opportunity to purchase greater liability protection … . The plaintiff, who submitted only her attorney’s affirmation and certain veterinary bills in opposition, failed to raise a triable issue of fact as to whether she was not given the opportunity to purchase additional coverage. Lentini v Delta Air Lines, Inc., 2018 NY Slip Op 01597, Second Dept 3-14-18

CONTRACT LAW (RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))/AIR WAYBILL (RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))/DAMAGES (CONTRACT LAW, AIR WAYBILL, RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))

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