Maklihon Manufacturing Corp. v. Air-City, Inc.

224 A.D.2d 187, 637 N.Y.S.2d 129, 1996 N.Y. App. Div. LEXIS 788

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Joan Lobis, J.), entered December 2, 1994, which, granted defendants’ motions for summary judgment to the extent of limiting their liability to $50, unanimously affirmed, without costs.

The IAS Court correctly held the loss to be subject to a $50 limitation of liability, notwithstanding the absence of contractual documents covering the shipment in question, in view of the ongoing commercial relationship between plaintiff shipper and defendant freight forwarder involving numerous prior transactions, all of which were concededly subject to a $50 limitation of liability (see, Calvin Klein, Ltd. v Trylon Trucking Corp., 892 F2d 191, 195-196). This ongoing relationship, as well as an earlier deposition, provided plaintiff with ample notice of defendant freight forwarder’s intent to assert the $50 limitation and justified the leave given to plead it as an affirmative defense. Plaintiff’s allegations of gross negligence were insufficient to raise an issue of fact. We have considered plaintiff’s other contentions, as well as those raised by defendant freight forwarder on its cross-appeal, and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Mazzarelli, JJ.