Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio Nacional

CourtNew York City Municipal Court
Writing for the CourtGUY GILBERT RIBAUDO
Citation234 N.Y.S.2d 243,36 Misc.2d 821
PartiesThe GREAT ATLANTIC & PACIFIC TEA COMPANY, Plaintiff, v. LLOYD BRASILEIRO PATRIMONIO NACIONAL, Defendant.
Decision Date18 June 1962

Page 243

234 N.Y.S.2d 243
36 Misc.2d 821
The GREAT ATLANTIC & PACIFIC TEA COMPANY, Plaintiff,
v.
LLOYD BRASILEIRO PATRIMONIO NACIONAL, Defendant.
Municipal Court of City of New York, Borough of Manhattan,
First District.
June 18, 1962.

Page 244

[36 Misc.2d 822] Hill, Rivkins, Louis & Warburton, New York City, by Martin B. Mulroy, New York City, of counsel, for plaintiff.

Purrington & McConnell, New York City, by James D. Brown, New York City, of counsel, for defendant.

GUY GILBERT RIBAUDO, Justice.

This is a motion for summary judgment made by plaintiff, consignee under two bills of lading, for a shipment of coffee from Brazil, carried on the S. S. Loide Haiti, a vessel owned and operated by defendant, a common carrier. The claim arises as follows:

Plaintiff purchased from a firm in Brazil 4,000 bags of coffee under one bill of lading and 500 bags of coffee under the second bill of lading, which were delivered to the defendant for transportation to New York on the above-named vessel. According to the bills of lading issued at that time the goods were in 'apparent good order and condition' and weighed respectively 242,000 kilos gross and 240,000 kilos net, and 30,250 kilos gross and 30,000 kilos net.

Upon their arrival in New York and delivery to the plaintiff 46 bags were found to be slack and 59 bags to be sweat stained. The loss attributed to the slackage amounts to 1,224 pounds. Claim is also made for the expense of reconditioning the stained bags, less the recovery in salvage.

Defendant's own delivery documents, copies of which are annexed to the moving papers, confirm that 46 bags were slack and 59 were alleged to be sweat stained. The weight lost on the slack bags is also confirmed in defendant's delivery documents.

Plaintiff claims in its affidavit that the market value on the date the goods arrived at their destination was $54.50 per hundred pounds. It thus computes its loss on the slackage to be $667.08, which when added to the expense of reconditioning the stained bags, represents its total claim in the amount of $912.15.

In its moving papers plaintiff has included an affidavit of its Assistant Secretary setting forth the foregoing facts based on its own knowledge, upon documents in plaintiff's file and upon admissions made by defendant in response to a notice to admit facts (Civil Practice Act, § 322). Annexed to the affidavit as exhibits are the bills of lading showing receipt of the goods in apparent good order an weighing respectively, 242,000 kilos gross and 240,000 kilos net for 4,000 of the bags and 30,250 kilos gross and 30,000 kilos net for the remaining 500 bags. There is also annexed to the said affidavit records of the defendant confirming the slackage and staining together with copies of documents confirming the proceeds of salvage and expenses claimed in connection with the stained bags.

Page 245

[36 Misc.2d 823] The answering affidavit submitted by defendant is made by one of its attorneys who does not claim to have any personal knowledge. In addition, it contains no facts controverting the facts contained in the moving papers and is similarly lacking in any evidence to substantiate the defense relied upon, to wit: exemption under the U. S. Carriage of Goods by Sea Act of 1936 (U.S.Code, tit. 46, § 1300 et...

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3 practice notes
  • Phillips v. Joseph Kantor & Co.
    • United States
    • United States Court of Appeals (New York)
    • November 3, 1972
    ...Fund, 36 Misc.2d 28, 30, 231 N.Y.S.2d 928, 929 (McGivern, J.); cf. Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio, 36 Misc.2d 821, 824, 234 N.Y.S.2d 243, 245). Emphatically, evidence excludable under the Dead Man's Statute should not be used to support summary judgment;......
  • CPC Intern. Inc. v. McKesson Corp.
    • United States
    • United States State Supreme Court (New York)
    • February 19, 1987
    ...strongly in favor of their being considered on this motion (Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio Nacional, 36 Misc.2d 821, 234 N.Y.S.2d 243). The absence of contradictory factual allegations is particularly compelling since co-defendants Blattman, Merrick and ......
  • REGAL FIBERS, INC. v. HOLLAND AMERICAN LINE, No. 423 of 1963.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 4, 1969
    ...Oil Co. v. The Kaposia, 148 F.Supp. 899 (S.D.N.Y. 1957); Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio Nacional, 36 Misc.2d 821, 234 N.Y.S.2d 243 Thus, we are also of the opinion that the libellants have not sustained their burden of proving that the damage to the carg......
3 cases
  • Phillips v. Joseph Kantor & Co.
    • United States
    • United States Court of Appeals (New York)
    • November 3, 1972
    ...Fund, 36 Misc.2d 28, 30, 231 N.Y.S.2d 928, 929 (McGivern, J.); cf. Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio, 36 Misc.2d 821, 824, 234 N.Y.S.2d 243, 245). Emphatically, evidence excludable under the Dead Man's Statute should not be used to support summary judgment;......
  • CPC Intern. Inc. v. McKesson Corp.
    • United States
    • United States State Supreme Court (New York)
    • February 19, 1987
    ...strongly in favor of their being considered on this motion (Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio Nacional, 36 Misc.2d 821, 234 N.Y.S.2d 243). The absence of contradictory factual allegations is particularly compelling since co-defendants Blattman, Merrick and ......
  • REGAL FIBERS, INC. v. HOLLAND AMERICAN LINE, No. 423 of 1963.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 4, 1969
    ...Oil Co. v. The Kaposia, 148 F.Supp. 899 (S.D.N.Y. 1957); Great Atlantic & Pacific Tea Co. v. Lloyd Brasileiro Patrimonio Nacional, 36 Misc.2d 821, 234 N.Y.S.2d 243 Thus, we are also of the opinion that the libellants have not sustained their burden of proving that the damage to the carg......

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