Spiro v. Pence

• Decision Date: 14 February 1991
• Citation: 566 N.Y.S.2d 1010,149 Misc.2d 613
• Parties: Murle SPIRO, Plaintiff, v. Glen PENCE and Delmar Travel, Defendants.
• Court: New York City Court

Page 1010

566 N.Y.S.2d 1010

149 Misc.2d 613

Murle SPIRO, Plaintiff, v. Glen PENCE and Delmar Travel, Defendants.

City Court of Albany County.

Feb. 14, 1991.

Kenneth J. Munnelly, Delmar, for plaintiff.

Friedman and Manning, P.C. (Michael P. Friedman, of counsel), Delmar, for defendants.

MADONNA STAHL, Judge.

Plaintiff brings this motion for summary judgment claiming damages for breach of contract for defendant's failure to provide travel services. Defendant cross-moves for summary judgment claiming (1) that plaintiff sued the wrong party and (2) that plaintiff has failed to state a cause of action.

On November 25, 1988 plaintiff spoke to Glen Pence, the president of Delmar Travel Bureau, Inc., who arranged a ten-day vacation to St. Thomas for the plaintiff. Plaintiff was advised that arrangements were being made through Flyfaire, Inc. for a package deal which included air and land arrangements.

At that time, plaintiff paid $500 to "Delmar Travel" as a deposit and on February 23, 1989 paid the balance of $3,656.38, also to Delmar Travel. Both checks were cashed by "Delmar Travel Bureau." The entire proceeds of $4,156.38 were immediately submitted by defendant to Flyfaire, Inc., of which $415.24 was later returned to defendant by the Airlines Reporting Corp. as a commission. Vouchers were issued to plaintiff on the same day.

Plaintiff was scheduled to depart on March 20, 1989. On March 19, 1989, immediately after defendant received notice that Flyfaire, Inc., was bankrupt, Mr. Pence notified plaintiff of the bankruptcy and explained that he did not have the accommodations or transfers for the period in question but that the airline tickets were still usable. Plaintiff chose to continue with her vacation plans by using the airline tickets provided by defendant and paying an additional $3,753 for the same hotel accommodations.

First, there is no proof that Glen Pence acted in an individual capacity with respect to this plaintiff. The action against him personally is therefore dismissed. However, the corporate defendant has been sufficiently identified and given an opportunity to defend itself--City of Mt. Vernon v. Best Development Co., 268 N.Y. 327, 197 N.E. 299. The caption of the case is, therefore, amended, nunc pro tunc, to read "Murle Spiro v. Delmar Travel Bureau, Inc. a/k/a Delmar Travel Bureau."

Next, is a travel agent who accepts money directly from a traveler to purchase accommodations liable to the traveler when the wholesaler fails to provide accommodations ordered and paid for by the travel agent?

What is the status of a travel agent? If an agent, of whom? The consumer or the wholesaler? Or is the travel "agent" actually a principal?

Some courts have held that a travel agent is the agent of the traveler. Bucholtz v. Sirotkin Travel Ltd., 74 Misc.2d 180, 343 N.Y.S.2d 438, aff'd 80 Misc.2d 333, 363 N.Y.S.2d 415 and Fix v. Travel Help, 143 Misc.2d 673, 541 N.Y.S.2d 924.

Other courts have held that a travel agent is an agent for the wholesaler or provider of services. Rappa v. American Airlines, 87 Misc.2d 759, 386 N.Y.S.2d 612.

Almost all courts since 1966 have somehow fashioned their decisions upon the theory of agency laid down in Unger v. Travel Arrangements, 25 A.D.2d 40, 266 N.Y.S.2d 715 (1st Dept.1966). As noted, there have been inconsistent results.

Other courts, however, have been hesitant to apply agency principles to transactions involving travel agents. Justice Mahoney, in 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, 3rd Dept., 1974 expressed the opinion that a travel agent is a disclosed principal and the supplier is an independent contractor.

If Delmar Travel Bureau was an agent for anyone, it was for Flyfaire, Inc. since it was through Flyfaire, Inc., and not plaintiff, that defendant was paid a commission. An agent usually looks to his principal for...