Dorkin v. American Exp. Co.
| Decision Date | 17 January 1974 |
| Citation | 43 A.D.2d 877,351 N.Y.S.2d 190 |
| Parties | Murray DORKIN et al., Appellants, v. AMERICAN EXPRESS COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nicholas J. Grasso, Schenectady (David A. Weiss, Schenectady, of counsel), for appellants.
Carter, Conboy, Bardwell & Case, Albany (Forrest N. Case, Jr., Albany, of counsel), for respondent.
Before STALEY, J.P., and COOKE, SWEENEY, KANE and MAIN, JJ.
Appeal (1) from an order of the Supreme Court at Special Term, entered in Albany County on July 6, 1973, which granted a motion by defendant for summary judgment dismissing the complaint, and (2) from the judgment entered thereon.
Plaintiff, Natalie Dorkin, brings this action based in negligence and breach of contract for injuries sustained when the tour bus in which she was riding braked suddenly, causing her to be thrown to the floor. Her husband has brought a derivative action.
The accident happened while plaintiff and her husband were on an American Express tour travelling, at the time, from Antwerp to Amsterdam. Plaintiffs allege first that while plaintiff was a passenger in defendant's tour, defendant, its agents, servants and/or employees negligently transported plaintiff, causing her injuries. They allege further that defendant warranted that the transportation facilities selected by defendant were fit, safe and proper and defendant failed to transport plaintiff in a fit and proper fashion in violation of said warranty and in breach of defendant's contractual obligation to plaintiff. These allegations were denied in defendant's answer. Special Term granted defendant's motion for summary judgment dismissing the complaint.
The crucial issue is the relationship between defendant and the foreign bus company on whose bus plaintiff was injured. While the allegations of the complaint, if proved, are sufficient to hold defendant liable, an examination of the papers submitted on the motion reveals that the tour bus was owned and operated by an independent contractor. Such relationship, therefore, precludes any liability on the part of defendant, either on a theory of negligence or breach of contract. Defendant agreed to supply plaintiffs with a planned European tour with meals, lodging and transportation. It did not, however, insure the safety of plaintiff. The disclaimer in the tour contract negates any intent of defendant to assume a contractual obligation for such safety. The deposition and...
To continue reading
Request your trial
-
Rusyniak v. Gensini
... ... Levitt, 241 F.3d 186, 194 n. 4 (2d Cir.2001), overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215 (2d Cir.2006); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d ... , an agent can not be sued for actions taken on behalf of a principal.") (collection cases); Dorkin v. Am. Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 891, 893 (N.Y.Sup.Ct., Albany County, 1973) ... ...
-
Honeycutt v. Tour Carriage, Inc., 5:95CV134-MCK.
... ... in the contract of passage] that the passenger did not read the ticket."); North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 234 (2d Cir.1978) (affirming trial ... See, e.g., Dorkin v. American Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 891 (1973), aff'd, 43 A.D.2d 877, 351 ... ...
-
Rivers v. State
...Agency §§ 358-360, pp. 185-190; see generally Dorkin v. American Express Company, 74 Misc.2d 673, 675, 345 N.Y.S.2d 891, affd. 43 A.D.2d 877, 351 N.Y.S.2d 190.) As one authority has It is difficult to suggest any criterion by which the non-delegable character of such duties may be determine......
-
Cubby, Inc. v. CompuServe Inc.
... ... Dist. LEXIS 6500, * 7-* 8 (S.D.N.Y. July 17, 1987) (quoting Dorkin v. American Express Co., 74 Misc.2d 673, 675, 345 N.Y.S.2d 891, 894 (Sup.Ct.1973), aff'd, 43 ... ...
-
Chapter § 4.04 LIABILITY OF HOTELS AND RESORTS FOR COMMON TRAVEL PROBLEMS
...1979) (bus crash; no liability for tour operator or airline); Dorkin v. American Express Co., 74 Misc. 2d 673, 345 N.Y.S.2d 891, aff'd 43 A.D.2d 877, 351 N.Y.S.2d 190 (1974) (bus accident; no liability for tour operator).[423] See, e.g.: Fifth Circuit: Kerns v. Hyatt Corp., 1999 WL 562720 (......