Klein v. KLM Royal Dutch Airlines

• Decision Date: 21 October 1974
• Citation: 46 A.D.2d 679,360 N.Y.S.2d 60
• Parties: Neal KLEIN, etc., et al., Appellants, v. KLM ROYAL DUTCH AIRLINES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 60

360 N.Y.S.2d 60

46 A.D.2d 679

Neal KLEIN, etc., et al., Appellants, v. KLM ROYAL DUTCH AIRLINES, Respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 21, 1974.

Kreindler & Kreindler, New York City (Alan J. Konigsberg, Milton G. Sincoff and Melvin I. Friedman, New York City, of counsel), for appellants.

Haight, Gardner, Poor & Havens, New York City (James J. Sentner, Jr., New York City, of counsel), for respondent.

Before LATHAM, Acting P.J., and SHAPIRO, COHALAN, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

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) (cf. MacDonald v. Air Canada, 1 Cir., 439 F.2d 1402, 1405).