Philip A. Feinberg, Inc. v. Varig, S. A.

• Court: New York Supreme Court
• Writing for the Court: ARNOLD L. FEIN
• Citation: Philip A. Feinberg, Inc. v. Varig, S. A., 363 N.Y.S.2d 195, 80 Misc.2d 305 (N.Y. Sup. Ct. 1974)
• Decision Date: 11 September 1974
• Parties: , 16 UCC Rep.Serv. 818 PHILIP A. FEINBERG, INC., Plaintiff, v. VARIG, S.A., doing business as Varig Brazilian Airlines, and First National City Bank, Defendants.

Page 195

363 N.Y.S.2d 195

80 Misc.2d 305, 16 UCC Rep.Serv. 818

PHILIP A. FEINBERG, INC., Plaintiff, v. VARIG, S.A., doing business as Varig Brazilian Airlines, and First National City Bank, Defendants.

Supreme Court, Individual Calendar, New York County, Part 9.

Sept. 11, 1974.

Patterson, Belknap & Webb by Herbert H. Chaice, New York City, for plaintiff.

James P. Maniatis, New York City, for Varig.

Shearman & Sterling by Henry Harfield, New York City, for First Nat. City Bank.

ARNOLD L. FEIN, Justice:

Plaintiff moves for summary judgment against Varig, S.A. (Varig) on the first cause of action and against First National City Bank (Citibank) on the second cause of action. The motion was made in duplicate (#22 and #44, Sp.T., Pt. I, 5/25/73) and is considered and decided as a single motion in I.C. Part 9. Plaintiff's Exhibit 1, attached to only one set of motion papers, was considered.

Plaintiff, Philip A. Feinberg, Inc. (Feinberg), is a domestic corporation engaged in the business of buying and selling fur skins as well as performing services as a commission agent in connection with the sale of such skins.

In September, 1971, Feinberg agreed to purchase 100 pieces of jaguar skins from a corporation, Exportadora Braseleria Ltd., (Exportadora), located in Brazil, for the sum of $16,490. In accordance with Feinberg's instructions, Citibank issued an irrevocable letter of credit in favor of Exportadora providing for payment of the above sum upon the presentation of certain specified documents to the collecting bank. Exportadora delivered the skins to Varig for shipment to New York designating Citibank as the consignee. Varig issued a non-negotiable airway bill of lading to Exportadora. However, the skins were never shipped to New York.

It appears that sometime prior to shipment, Exportadora demanded the return of the skins. Apparently there was a problem respecting the appropriate export license. The skins were then returned to Exportadora by Varig. However, Varig did not take back the original airway bill of lading. On or about September 24, 1971, Citibank honored a demand for payment against the letter of credit. A negotiating bank in Brazil submitted to Citibank by mail a draft in the sum of $16,490, drawn by Exportadora together with an airway bill, commercial invoice and a paper purporting to be the export license. After satisfying itself as to the authenticity of the export license and that the documents presented were in conformity with the letter of credit, Citibank paid the amount of the draft, debiting plaintiff's account.

The complaint sets forth a single cause of action against Varig bottomed on the failure of Varig to obtain the airway bill from Exportadora at the time the skins were returned by Varig. Feinberg also seeks a recovery against Citibank, contending that it failed to examine the documents presented and ascertain that the export license was not properly executed.

Varig has interposed three affirmative defenses in its answer and in addition asserts in its opposing papers the defense that the shipper Exportadora is a necessary party and has not been joined in the action.

However, none of the foregoing defenses present triable issues warranting denial of the motion for summary judgment. Nor is Exportadora a necessary party to the resolution of the issues here tendered.

The opposing affidavit submitted on behalf of Varig does not state the basis upon which the assertions contained therein are made. The source of knowledge upon which Varig attempts to buttress the conclusory defenses interposed in its answer is not disclosed. It is well settled that an opposing affidavit made without personal knowledge of the facts has no probative value and should be disregarded. (S. J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974); Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184). More important however is the failure of Varig to raise genuine issues warranting exploration at a plenary trial.

Varig's defenses in the main center upon certain provisions of the Warsaw Convention and Section 7--303 of the Uniform Commercial Code. It contends that there is a triable issue as to the meaning of the French text of the Warsaw Convention. These defenses are without merit.

As stated in Rosman v. Trans World Airlines, Inc. and Herman v. Trans World Airlines, Inc. (34 N.Y.2d 385, 390, 358 N.Y.S.2d 97, 101, 314 N.E.2d 848, 851 (1974), reversing the 1st and 2nd Dept. decisions relied on by Varig), with respect to the...