Braka v. Travel Assistance International

25 A.D.3d 456, 807 N.Y.S.2d 372

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered April 5, 2005, which denied defendants-appellants’ motions for summary judgment, unanimously affirmed, with costs.

In this breach of contract action seeking payment for travel expenses in evacuating plaintiff by air ambulance after injuries sustained in a motor vehicle accident in Fiji, defendants failed to make a prima facie showing of entitlement to summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

There was no clear evidence that the father intended his payment of the evacuation costs to be gratuitous since he allegedly was aware of the insurance and had sought assistance in connection with the evacuation (see De Lanoy, Kipp & Swan v New Amsterdam Cas. Co., 171 Misc 342, 346 [1939], affd 264 App Div 713 [1942], affd 289 NY 823 [1943]). There are issues of fact, including what was being done medically to aid plaintiff at the time, and whether appropriate procedures were followed to trigger the insurance.

Further, while a promise supported by past consideration is normally unenforceable (see Umscheid v Simnacher, 106 AD2d 380, 381 [1984]), here the promissory agreement signed by plaintiff and his father that plaintiff would repay the costs of the air evacuation, an intention further reiterated in an affidavit, constituted valid consideration (see General Obligations Law § 5-1105).

We have considered defendants’ further contentions and find them without merit. Concur—Tom, J.P., Marlow, Williams, Sweeny and Malone, JJ. [See 7 Misc 3d 1019(A), 2005 NY Slip Op 50665(U) (2005).]