Klein v. KLM Royal Dutch Airlines

46 A.D.2d 679, 360 N.Y.S.2d 60, 1974 N.Y. App. Div. LEXIS 3918

Opinion

In an action to recover damages for personal and property injuries, medical expenses and loss of services, plaintiffs appeal from an order of the Supreme Court, Kings County, dated May 1, 1972, which granted defendant’s motion to dismiss the first three causes of action and denied plaintiffs’ cross motion for summary judgment on the same causes. Order modified by striking from the first decretal paragraph thereof everything after the words “ defendant’s motion is granted” and by adding to said paragraph, immediately after said word “ granted ”, the following: “ only as to the first cause of action and denied as to the second and third causes.” As so modified, order affirmed, with $20 costs and disbursements to appellants. Under the facts as brought out in the affidavits, we believe that the questions concerning the guarding and use of the conveyor belt which caused the injury to the infant plaintiff should be more fully explored at a trial. We agree with Special Term, however, that plaintiffs, having gotten off the aircraft and arrived safely within the terminal, had disembarked within the meaning of article 17 of the Warsaw Convention (49 U. S. Stat. 3014) (of. MacDonalds. Air Camada, 439 F. 2d 1402,1405). Latham, Acting P. J., Shapiro, Cohalan, Brennan and Benjamin, JJ., concur.