Lambert v Delta Air Lines

[*1] Lambert v Delta Air Lines 2015 NY Slip Op 51137(U) Decided on July 27, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2014-1149 K C

Jean Pierre W. Lambert, Respondent,

against

Delta Air Lines, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 4, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,470.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.

Plaintiff commenced this small claims action to recover the sum of $2,680, representing the value of certain contents of plaintiff's baggage which he had checked with defendant prior to his flight, and which contents were missing from his baggage after plaintiff had retrieved his baggage following the flight. Defendant appeals from a judgment which, after a nonjury trial, awarded plaintiff the principal sum of $2,470.

In a small claims action, this court's review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

Defendant contends, for the first time on appeal, that plaintiff lacked standing to bring the action. "[A]n argument that a plaintiff lacks standing, if not asserted in the defendant's answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211 (e)" (Wells Fargo Bank Minn. v Mastropaolo, 42 AD3d 239, 242 [2007]). The waiver set forth in CPLR 3211 (e) applies to small claims actions (see Farkas v Schwarzenberger, 11 Misc 3d 129[A], 2006 NY Slip Op 50296[U] [App Term, 9th & 10th Jud Dists 2006]). Therefore, defendant waived its defense that plaintiff lacked standing.

A review of the record indicates that plaintiff arrived in Haiti on November 22, 2012, at which time he discovered that items were missing from his checked baggage. He first notified defendant in writing of his loss on January 17, 2013. The contract of carriage required that plaintiff tender written notice of any loss to defendant within 21 days after the baggage was placed at the passenger's disposal. We find that plaintiff's failure to give defendant written notice [*2]of the loss of certain contents of his checked baggage within the 21-day period required by his contract of carriage with defendant is a bar to plaintiff maintaining his cause of action. Consequently, in finding in favor of plaintiff in this small claims action, the Civil Court failed to render substantial justice between the parties (see CCA 1804, 1807).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: July 27, 2015