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Bush v. Protravel Int'l, Inc.

Civil Court of the City of New York, Richmond County

August 9, 2002, Decided

Index No.: 31602/02

Opinion

 [*744]  [**791]   Eric N. Vitaliano, J.

Dreams of a honeymoon safari in East Africa dashed offer fresh evidence of how the terror attack on the World Trade Center of September 11, 2001 has shredded the lives of ordinary New Yorkers and has engendered still continuing reverberations in decisional law. What might have ordinarily warranted summary disposition in favor of the safari company and its travel agent, pinning on the traveler the economic burden of trip cancellation, cannot, in the wake of September 11th, be sustained here on their motion for summary judgment.

Defendant Taicoa Corporation, doing business as Micato Safaris (Micato), acknowledges that plaintiff Alexandra Bush contacted Micato about booking a safari. By its admission, Micato referred [***2]  the plaintiff to defendant ProTravel International, Inc. (ProTravel), a retail travel agent, to arrange for a reservation on one of the various safaris offered by Micato. It is undisputed that, on or about May 8, 2001, the plaintiff booked an African safari travel package for herself and her fiance through ProTravel with Micato. At that time, it is also undisputed, the plaintiff gave ProTravel an initial 20% deposit in the amount of $ 1,516. Micato admits that it received the plaintiff's deposit from ProTravel on May 15, 2001. The safari Alexandra Bush selected for husband to be and herself was scheduled to begin on November 14, 2001.

Sixty-four days before the safari's start, September 11, 2001, the world, as we knew it, came to an end. As a result of the attack on the World Trade Center, other terrorism alerts and airline scares, the plaintiff and her fiance decided almost immediately to cancel their trip. Further, the plaintiff claims, she endeavored to notify ProTravel of her decision, but, as a result of the interruption of telephone service between Staten Island, where she had fled to safety, and Manhattan, where ProTravel maintained an office in midtown, she was physically [***3]  unable to communicate her cancellation order until September 27, 2001. ProTravel agrees that the plaintiff did contact it that day and avers it passed along her request to Micato orally and in writing. Micato acknowledged receiving a fax from ProTravel to that effect on October 4, 2001. Thereafter, when the defendants refused to return her deposit, Alexandra Bush sued in this action to get it back.

The defendants, by their Manhattan and Massachusetts counsel, now move for summary judgment dismissing this action. The court notes that it has granted a separate motion permitting counsel from the Massachusetts firm of Rubin, Hay  [*745]  & Gould, P.C. to appear pro hac vice to argue this motion for summary judgment. In support of the motion, counsel have appeared for oral argument and submitted four affidavits and two memoranda of law. The court notes that the second affidavit of Patricia Buffolano, dated June 7, 2002, and received by the court on June 10, 2002, is clearly a late submission. Counsel appeared on the June 6, 2002 submission date and did not request an adjournment in order to submit further papers. Nevertheless, the court has considered this affidavit in deciding [***4]  the motion.

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192 Misc. 2d 743 *; 746 N.Y.S.2d 790 **; 2002 N.Y. Misc. LEXIS 1032 ***

Alexandra Bush, Plaintiff, v. ProTravel International, Inc., et al., Defendants.

Subsequent History:  [***1]  Case Name, Counsel and Opinion Amended September 4, 2002.

Disposition: Defendants' motion for summary judgment denied.

CORE TERMS

cancellation, disaster, executive order, safari, emergency, travel, summary judgment, impossibility, excused, state of emergency, declaring, booked, plaintiff's claim, further notice, communicate, commencing, bonds, issue of material fact, departure, expenses, deposit, suspend, notice, trip

Civil Procedure, Summary Judgment, Motions for Summary Judgment, General Overview, Entitlement as Matter of Law, Genuine Disputes, Legal Entitlement, Materiality of Facts, Real Property Law, Brokers, Fiduciary Responsibilities, Burdens of Proof, Opposing Materials, Contracts Law, Breach, Excuse & Repudiation, Acceptance of Goods, Excuse From Performance, Standards of Performance, Impossibility of Performance