Opinion
Submitted October 15, 1996
Decided November 14, 1996
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered November 28, 1995, which affirmed, insofar as appealed from, an order of the Supreme Court (Bertram Katz, J.), entered in Bronx County, inter alia, denying a motion by third-party defendant J J Air Freight Trucking Co., Inc. for partial summary judgment declaring that its liability, if any, is contractually limited to $50. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"
Schindel, Farman Lipsius, L.L.P., New York City (Jean M. Gardner and Allen M. Eisenberg of counsel), for appellant.
Schwartzman Weinstock Garelik Mann, P.C., New York City ( Donald A. Pitofsky of counsel), for respondent.
Kitz Corp. v Transcon Shipping Specialists, 221 A.D.2d 261, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Kitz Corp., a fine arts collector in Japan, purchased a lamp valued at $886,000 from Christie, Manson and Woods auction house in New York City. Christie's hired Transcon Shipping Specialists to crate the lamp in preparation for its shipment to Japan, and employed Radix Group International to arrange for its delivery. Radix engaged the services of appellant, J J Air Freight Trucking Co., to transport the lamp from Transcon's facility in the Bronx to the Nippon Cargo Airways terminal at John F. Kennedy International Airport in Queens.
The lamp arrived in Japan damaged. Kitz, through its insurer, sued Transcon for breach of contract and negligence, and Transcon in turn sought contribution from Radix, J J and Nippon. J J moved for partial summary judgment on the ground that its liability to Transcon was limited to $50 in accordance with its contract of carriage with Radix.
The issue being whether the $50 limitation of liability binds Transcon, and there being no other issue before us regarding J J's liability on Transcon's third-party action, we agree that the motion for summary judgment was properly denied. Transcon had no contract with J J, had no ongoing relationship with J J, and played no part in its selection. There was no proof that Transcon was aware of the limitation contained in J J's contract of carriage with Radix. J J's limitation of liability clause therefore cannot be enforced against Transcon. That Nippon's liability may be limited to $671.18 by reason of the Warsaw Convention, applicable to international transportation, is immaterial to J J's intrastate shipment and to the resolution of the narrow legal issue presented to us on this certified question appeal.
Chief Judge KAYE and Judges SIMONS, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum; Judge TITONE taking no part.
Order affirmed, etc.