US Wholesale Club, Inc. v United Parcel Serv.

[*1] US Wholesale Club, Inc. v United Parcel Serv. 2010 NY Slip Op 50903(U) [27 Misc 3d 138(A)] Decided on May 20, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570499/09.,

US Wholesale Club, Inc., d/b/a Plaintiff-Appellant,

against

United Parcel Service, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered on or about September 17, 2008, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Barbara Jaffe, J.), entered on or about September 17, 2008, reversed, without costs, and judgment awarded in favor of plaintiff in the principal sum of $817. The Clerk is directed to enter judgment accordingly.

This small claims action stems from allegations that three television sets separately shipped on plaintiff's behalf by defendant United Parcel Service were damaged during transit. While that portion of plaintiff's claim concerning the New Hampshire shipment was properly dismissed for lack of proof, a different result should obtain with respect to the two remaining interstate shipments here involved. In view of defendant's (tacit) acknowledgment of liability with respect to those shipments, and there being no serious dispute that plaintiff declared the actual value of the shipped goods and paid a higher rate, defendant was obligated to reimburse plaintiff "for the actual loss or injury to the property" (49 USC 14706[a][1] [Carmack Amendment]). Thus, "substantial justice" (CCA 1807) will best be served by awarding plaintiff an aggregate recovery of $817, representing the difference between the declared value of the two shipments and the lesser "claims settlement" amounts previously paid to plaintiff by defendant through its insurance carrier.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 20, 2010